Mekala Madhusudhan Reddy, vs The Director General Of Police,

These two writ petitions are filed under Article 226 of the

Constitution of India, by one Mekala Madhusudhan Reddy (Accused

No.1 in S.C.No.96 of 2018) and one Maddike Venkata Krishna Reddy

(Accused No.7 in S.C.No.100 of 2019). Both the Sessions Cases are

pending on the file of Assistant Sessions Judge, Rayachoty for the

offences punishable under Sections 323, 364, 395, 447, 506 r/w 149

of Indian Penal Code (for short 'I.P.C') arising out of same crime.

The relief claimed in W.P.No.14229 of 2020 is as follows:

"....to issue writ of mandamus or any other approrpate writ that the change of investigation agency from the Officer-in-charge of the police station i.e. Ramapuram Polcie Station to the 5th respondent, after the charge sheet is filed and trial is about to commence in S.C.No.96 of 2018 and S.C.No.100 of 2019, is arbitrary, illegal an without jurisdiction and direct the 5th respondent to forbear from indulging in the investigation of the above said cases and further direct the Station House Officer, Ramapuram Police Station who has recorded the crime in Crime No.73 of 2016 as the authorized person to conduct prosecution in S.C.No.96 of 2018 and S.C.No.100 of 2019, on the file of the Assistant Sessions Judge, Rayachoty...."

Whereas, the relief claimed in W.P.No.142656 of 2020 is as

follows:

".... To issue writ, order or direction mostly one which is in the nature of Writ of mandamus, declaring the impugned action of the Respondents in transfer of investigation in Crime No.73 of 2016 of Ramapuram Police Station, YSR Kadapa District to CID for causing out further investigation after the charge sheet is filed in S.C.No.96/2018 and S.C.No.100/2019 are pending on the file of the Court of Assistant Sessions Judge, Rayachoty, YSR Kadapa District, as illegal, arbitrary, unjustified, unconstitutional, unreasonable and direct the respondents to for bear from doing so and pass such other order .....

2 MSM,J WP Nos.14229 & 14265 of 2020

The relief claimed in both the writ petitions is identical. Since

the petitioners in both the writ petitions are challenging the

proceedings Rc.No.3224/C2/2020 dated 13.07.2020 issued by the

Director General of Police, Government of Andhra Pradesh,

transferring Crime No.73 of 2016 to C.I.D, Andhra Pradesh to

conduct further investigation, it is appropriate to decide both the writ

petitions by a common order.

Both, Sessions Cases S.C.No.96 of 2018 and S.C.No.100 of

2019 have emanated from Crime No.73 of 2016 basis of complaint

from the fourth respondent/defacto complainant, for the alleged

offences under Sections 323, 364, 305, 447, 506 and 149 I.P.C,

wherein it is alleged that the defacto complainant had taken some

money as loan from the accused and thereafter, threatened and bet

him demanding for repayment of money. Station House Officer,

Ramapuram Police Station is the Investigating Agency in S.C.No.96 of

2018 and S.C.No.100 of 2019, as the charge sheet is already filed in

both the session cases, final report is filed in compliance of Section

173(2) Cr.P.C. It is contended that, Section 173(8) Cr.P.C enabled

further investigation by an Investigating Agency under special

circumstances, subject to leave of the Court in which the cases are

pending.

While the matter stood thus, Director General of Police

entrusted further investigation in S.C.No.96 of 2018 and S.C.No.100

of 2019 to C.I.D, A.P and (C.B) C.I.D, Kurnool filed a memo before the

Sessions Court for recording statement of L.W.1 under Section 164

Cr.P.C. It is contended that Cr.P.C lays down that, after investigation

is taken up by an officer-in-charge of the police station under Section

154 Cr.P.C, after completion of the investigation, final report has to 3 MSM,J WP Nos.14229 & 14265 of 2020

be filed under Section 173 Cr.P.C which is called the charge sheet or

closure report. Thereafter, subject to the limited power of further

investigation under Section 173(8) Cr.P.C, the same investigating

agency i.e. officer-in-charge of the police station, Ramapuram Police

Station will have to participate in prosecuting the case, including

further investigation, if any.

It is contended that the Director General of Police and

Superintendent of Police, YSR Kadapa District do not have

jurisdiction or authority of law to change the Investigating Agency,

when the sessions cases are scheduled for conducting trial. In fact,

the question of changing Investigating Agency does not arise, unless,

there is judicial intervention, on the ground that the authorised

Investigating Agency is misconducted the investigation of the case. It

is contended that, only a constitutional court can change the

Investigating Agency by substituting the local police with Central

Bureau of Investigation or any other Investigating Agency.

It is contended that C.I.D, Kurnool is a specialized separate

Investigating Agency of the State. For hidden reasons, the officer-in-

charge of the police station as defined under Section 2(o) Cr.P.C is

substituted by C.I.D, Kurnool, for further investigation and file charge

sheet, adopting a different practice of transferring further

investigation to C.I.D, Kurnool by Director General of Police, which is

unknown practice, may lead to chaos. Hence, the writ petition is filed

questioning the action of the respondents in transferring further

investigation to C.I.D, Kurnool, which is totally in contravention to

Section 173(8) Cr.P.C and sought the relief prayed for.

4 MSM,J WP Nos.14229 & 14265 of 2020

In W.P.No.14265 of 2020, the petitioner raised additional

grounds while challenging the entrustment of Crime No.73 of 2016 on

the file of Ramapuram Police Station, YSR Kadapa District by

Director General of Police, A.P to C.I.D, A.P vide proceedings

Rc.No.3224/C-2/2020 dated 13.07.2020 for further investigation.

Thereafter, vide Memo C.No.4628/C32/C.I.D/2020 dated

15.07.2020, the Additional Director General of Police, C.I.D, AP (for

short 'Addl. DGP, CID'), Mangalagiri issued consequential

instructions to the Deputy Superintendent of Police, C.I.D, Kurnool

(for short 'Deputy Superintendent Of Police, C.I.D, Kurnool'), to

submit preliminary enquiry report within fifteen days there from. It is

contended that, entrustment of further investigation to Deputy

Superintendent Of Police, C.I.D, Kurnool is in total contravention of

Section 173(8) Cr.P.C and that, on account of further investigation

taken by Deputy Superintendent Of Police, C.I.D, Kurnool on the

direction of Additional Director General of Police, C.I.D., A.P,

registration of crime in the matter is unreasonable, irrational.

It is also contended that the word "Investigation" is defined

under Section 2(h) of Cr.P.C and Section 2(o) Cr.P.C defined the

expression "officer-in-charge of a police station" which includes, when

the officer-in-charge of the police station is absent from the station

house or unable from illness or other cause, to perform his duties,

the police officer present at the station-house who is next in rank to

such officer and is above the rank of a constable or, when the State

Government so directs, any other police officer so present. The

collection of evidence consists of the examination of various persons

including the accused and reduction of their statements into writing

if the officer thinks fit and the search of places or seizure of things 5 MSM,J WP Nos.14229 & 14265 of 2020

considered necessary for the investigation, which are to be produced

at the trial. It is also contended that, ignoring the office of the officer-

in-charge of the police station, as defined under Section 2(o) Cr.P.C,

the Additional Director General of Police, C.I.D, AP, transferring crime

to Deputy Superintendent of Police, C.I.D, Kurnool for further

investigation, is a serious illegality.

The specific contention raised in the writ petitions is that, on

account of bringing additional accused, conducting further

investigation and entrusting the same to C.I.D, A.P by Director

General of Police may lead to unreasonable delay, which is violative of

Article 21 of the Constitution of India. The speedy justice is a

constitutional right recognised by the Supreme Court and the

accused has a fundamental right guaranteed to life and personal

liberty under Article 21 of the Constitution of India for speedy

completion and fair trial. It is contended that the respondents are

trying to delay the trail by transferring the case to C.I.D at this length

of time and further investigation would brook inordinate delay in not

only commencement of trail but also in conclusion of such trial.

Therefore, the act of the Director General of Police, A.P, entrusting

the investigation to C.I.D, A.P. is violative of Article 21 of the

Constitution of India and requested to issue a direction as stated

above.

In W.P.No.14229 of 2020, Respondent No.2/Deputy Inspector

General of Police (Law & Order and Coordination) filed counter

affidavit on behalf of Respondent No.1/Director General of Police and

in W.P.No.14265 of 2020, Respondent No.6/Deputy Superintendent

of Police, C.I.D, Kurnool filed separate counter affidavits.

6 MSM,J WP Nos.14229 & 14265 of 2020

In W.P.No.14229 of 2020, Respondent No.2/Deputy Inspector

General of Police (Law & Order and Coordination) filed counter

affidavit on behalf of Respondent No.1/Director General of Police,

specifically denied the material allegations, inter alia, contending that

the Additional Director General of Police, C.I.D, AP, Mangalari,

received a representation from Sri R. Narayana/defacto complainant

in Crime No.73 of 2016 of Ramapuram Police Station, YSR Kadapa

District, complaining improper investigation which facilitated the

screening of real offenders, who have role in the perpetuation of

crime. Having acted upon the grievance raised by the victims in the

said representation and in order to maintain transparency in the

investigation and to instil confidence among the victims, the

Additional Director General of Police, C.I.D, A.P. on 30.06.2020

requested Director General of Police, AP to transfer the above case to

C.I.D and upon his request, the Director General of Police, A.P.

issued orders for carrying out further investigation by C.I.D, A.P so as

to conclude the investigation to its logical end by bringing the real

offenders, if any, in the criminal proceedings. It is stated that, by

virtue of Section 173(8) Cr.P.C, further investigation is ordered by

entrusting the matter with the task of conducting further

investigation and in view of the allegations made regarding the

manner in which the investigation was carried out by local police, as

such further investigation was ordered, so as to ascertain whether

any screened offenders and to bring them home and proceed against

them for prosecution by collecting evidence. The respondent denied

the contention that the Director General of Police has no jurisdiction

or authority to change the Investigating Agency when sessions cases

are scheduled for trial. It is specifically contended that Director

General of Police, A.P is vested with the power to transfer the 7 MSM,J WP Nos.14229 & 14265 of 2020

investigation, since C.I.D is a branch of State police department and

it is a separate entity to conduct investigation, which is known as

Crime Investigation Department. Therefore, endorsement of further

investigation to C.I.D is strictly in compliance with the power

conferred on Director General of Police, A.P and requested to dismiss

the writ petition.

In W.P.No.14265 of 2020, Respondent No.6/Deputy

Superintendent Of Police, C.I.D, Kurnool, filed counter separately

denying material allegations, while admitting about endorsement of

investigation to C.I.D, A.P on the letter addressed by Additional

Director General of Police, C.I.D, who in-turn entrusted the same to

Deputy Superintendent of Police, C.I.D Regional Office. The specific

contention of Deputy Superintendent of Police, C.I.D, Kurnool is that

the writ petition is not maintainable on facts and law, the same

deserves to be dismissed in limini, as the Additional Director General

of Police, C.I.D, A.P, has the authority to order further investigation

in a case not only to rectify the deficiencies in the investigation, but

also to establish the truth beyond doubt in the light of Andhra

Pradesh Police Manual Standing Orders with specific reference to

35(1) and 35(2), which reads as follows:

"APPM Order 35(1): The main role of Addl. DGP, C.I.D is to ensure performance of one of the most vital functions of the police i.e, investigation and detection of cases in the State.

APPM Order 35(2): One of the functions of the Addl. DGP, C.I.D, is general direction, supervision, and coordination of investigation of cases across the State."

It is also contended that, further investigation can be done by a

police officer superior in rank to the officer-in-charge of the police

station under Section 36 Cr.P.C, as held by the Apex Court in 8 MSM,J WP Nos.14229 & 14265 of 2020

State of Bihar v. JAC Saldanna1. As part of his duty, Director

General of Police, A.P entrusted the investigation to C.I.D, A.P and in-

turn Additional Director General of Police, C.I.D, A.P, directed the

Deputy Superintendent of Police, C.I.D, Kurnool to conduct further

investigation, as such, Deputy Superintendent of Police, C.I.D,

Kurnool, is empowered to conduct further investigation and file

additional report under Section 173(8) Cr.P.C.

Deputy Superintendent of Police, C.I.D, Kurnool narrated the

facts of S.C.No.96 of 2018 and S.C.No.100 of 2019 pending on the file

of Assistant Sessions Judge, Rayachoty, based on Crime No.73 of

2016 registered against the accused. The allegations relating to the

pending litigation needs no further consideration in the present writ

petitions. Hence, those contentions need not be reiterated in the

present writ petitions to avoid prolixity in the judgment.

The specific contention of the respondents is that, on receipt of

representation from the defacto complainant, the Director General of

Police, A.P., Mangalagiri has entrusted Crime No.73 of 2016 to C.I.D,

A.P, vide proceedings Rc.No.3224/C-2/2020 dated 13.07.2020, for

further investigation. Thereupon, vide Memo C.No.4628/C32/

C.I.D/2020 dated 15.07.2020, the Additional Director General of

Police, C.I.D, AP, Mangalagiri issued consequential instructions to the

Deputy Superintendent of Police, C.I.D, Kurnool, to submit

preliminary enquiry report within fifteen days there from. The

Deputy Superintendent Of Police, C.I.D, Kurnool took up

investigation and based on the proceedings and memo vide

C.No.23/C-2/DCRB-KDP/2020 dated 16.07.2020 of Superintendent

of Police, Kadapa, collected C.D file from the Inspector of Police, LR

1 AIR 1980 SC 326 9 MSM,J WP Nos.14229 & 14265 of 2020

Palli Circle, YSR Kadapa District. The Deputy Superintendent Of

Police, C.I.D, Kurnool, filed a requisition before the Assistant

Sessions Judge, Rayachoty informing about continuation of further

investigation under Section 173(8) Cr.P.C, took up investigation and

re-examined the defacto complainant, wherein the defacto

complainant stated the names of Accused Nos. 7 to 10 and further

stated that he could not disclose those names, since Accused No.10

threatened with dire consequences. During the course of further

investigation, Deputy Superintendent Of Police, C.I.D, Kurnool re-

examined the witnesses i.e. LWs. 2 to 10 wherein, they all

corroborated the version of L.W.1 - defacto complainant. During the

course of further examination, the Investigating Officer/Deputy

Superintendent Of Police, C.I.D, Kurnool, examined LWs.11 to 17 on

18.07.2020. Hence, further investigation of C.I.D is permitted and

that the contention of the petitioner that the investigation under

Section 173(8) Cr.P.C only be carried on by the officer-in-charge of

the police station, Ramapuram Police Station, only is not tenable.

Deputy Superintendent of Police, C.I.D, Kurnool, further highlighted

the powers of C.I.D Police, Mangalagiri as per Standing Orders 33(1)

and 35(5) of Andhra Pradesh Police Manual to contend that C.I.D as a

police station for the entire State, can register a case suo moto and

investigate into it, therefore entrusting the investigation to senior

executive officer, who is officer-in-charge of the C.I.D Police, who

according to Section 154(1) Cr.P.C takes action on the complaint

received by him and basing on the F.I.R registered by the Senior

Executive Officer under Section 154(1) Cr.P.C would be taken up by

any investigating officer of C.I.D, authorized by Additional Director

General of Police, C.I.D to that effect. As such, the action of Deputy

Superintendent of Police, C.I.D, Kurnool, in this regard is not illegal 10 MSM,J WP Nos.14229 & 14265 of 2020

or contrary to the provisions of Sections 154 and 156 Cr.P.C, as

alleged by the petitioners.

It is specifically contended that, further investigation can be

conducted by exercising power under Section 173(8) Cr.P.C and that

too, Standing Order 33(1) and 35(5) of Andhra Pradesh Police Manual

permits Deputy Superintendent of Police, C.I.D, Kurnool to conduct

further investigation. It is further brought to the notice of this Court

that, Deputy Superintendent of Police, C.I.D, Kurnool, took up

investigation and filed an application before II Additional Judicial

Magistrate of First Class, Kadapa to record the statement of material

witness as contemplated under Section 164 Cr.P.C and the

II Additional Judicial Magistrate of First Class, Kadapa has already

recorded the statement of L.W.1 - defacto complainant on

17.08.2020, wherein he disclosed involvement of Accused Nos. 7 to

10 in the above crime. Further, Deputy Superintendent of Police,

C.I.D, Kurnool denied the right of this petitioner under Article 21 of

the Constitution of India i.e. speedy trial, when delay was caused due

to technical reasons, strict adherence of Section 309 Cr.P.C will not

afford any ground to allow the present writ petitions and placed

reliance on the judgment of High Court of Jharkhand at Ranchi in

Kanhaiya Prasad Singh v. State of Jharkhand2 and further

contended that the writ petitions are filed only to mislead the Court to

obtain an order to screen the real culprits in the above crime and

therefore, there are absolutely no grounds to allow these writ

petitions and prayed to dismiss the writ petitions.

During hearing, Sri Vedula Venkataramana, learned Senior

Counsel for the petitioner appearing in W.P.No.14229 of 2020

2 (2009) CRILJ 1016 11 MSM,J WP Nos.14229 & 14265 of 2020

contended that, even according to Section 173(8) Cr.P.C, only officer-

in-charge of the police station is competent to conduct further

investigation after filing a charge sheet and cognizance was taken by

the Court of competent jurisdiction. Transfer of investigation for

conducting further investigation on the request of Additional Director

General of Police, C.I.D, Mangalagiri, who is the head of a separate

independent Investigating Agency though under the control of State

Government is a clear error and contrary to the intention of the

legislature in incorporating Section 173(8) Cr.P.C read with the

definition of 'officer-in-charge of the police station' under Section 2(o)

Cr.P.C. Apart from that, Additional Director General of Police, C.I.D,

Mangalagiri addressed a letter suo moto for transfer of investigation,

but no averment is made in the counter disclosing the reason which

compelled him to address such letter for transfer of investigation in

Crime No.73 of 2016 on the file of Ramapuram Police Station, YSR

Kadapa District to C.I.D, A.P. In the absence of any explanation, the

very addressing letter dated 30.06.2020 by Additional Director

General of Police, C.I.D, A.P is nothing but usurping the power of

Investigating Agency who conducted investigation in Crime No.73 of

2016, which is the subject matter of S.C.No.96 of 2018 and

S.C.No.100 of 2019. It is also brought to the notice of this Court

that, in Paragraph No.6 of the counter affidavit filed by Deputy

Superintendent Of Police, C.I.D, Kurnool, a specific averment is made

that "acting upon the representation of the defacto complainant, the

Director General of Police, Andhra Pradesh, Mangalagiri has

entrusted the investigation to the C.I.D, A.P., Mangalagiri vide

Rc.No.3224/C-2/2020 dated 13.07.2020, whereby the Additional

Director General of Police, C.I.D, Mangalagiri entrusted the

investigation to Deputy Superintendent of Police, C.I.D., Kurnool vide 12 MSM,J WP Nos.14229 & 14265 of 2020

Memo C.No.4628/C32/C.I.D/2020 dated 15.07.2020. He took up

investigation and basing on the proceedings and memo vide

C.No.23/C-2/DCRB-KDP/2020 dated 16.07.2020 of Superintendent

of Police, Kadapa, collected C.D file from the Inspector of Police, LR

Palli Circle, YSR Kadapa District.....".

The foundation laid in Paragraph No.6 of the counter affidavit

filed by Deputy Superintendent of Police, C.I.D, Kurnool, making

such an allegation extracted above itself shows malafides on the part

of Director General of Police, A.P in entrustment of investigation. If

really, Director General of Police, A.P received such representation

from the defacto complainant, there must be some reference in the

order passed by Director General of Police, A.P, transferring the

investigation to deputy Superintendent of Police, C.I.D, Kurnool. This

statement is self contradictory to the facts on record, only based on

the letter dated 30.06.2020 addressed by Additional Director General

of Police, C.I.D, Mangalagiri, investigation was transferred, but the

Additional Director General of Police, C.I.D, Mangalagiri did not

receive any such representation or requisition from the defacto

complainant. Therefore, the action of the Director General of Police,

A.P and the Additional Director General of Police, C.I.D, Mangalagiri

is malafide, in view of the specific allegation made in Paragraph No.6

of the counter affidavit of Deputy Superintendent of Police, C.I.D,

Kurnool. Thus, the proposed further investigation is a clear malafide

act of Director General of Police, A.P and the Additional Director

General of Police, C.I.D, Mangalagiri, appointing Deputy

Superintendent of Police, C.I.D, Kurnool as Investigating Officer to

conduct further investigation and requested to set-aside the

proceedings Rc.No.3224/C-2/2020 dated 13.07.2020 passed by the 13 MSM,J WP Nos.14229 & 14265 of 2020

Director General of Police, A.P and requested to pass appropriate

order as claimed in the writ petition.

Sri P. Veera Reddy, learned Senior Counsel appearing for the

petitioner in W.P.No.14265 of 2020 mainly contended that only the

Investigating Officer in Crime No.73 of 2016 can conduct further

investigation under Section 173(8) Cr.P.C i.e. officer-in-charge of the

police station or Investigating Officer. It is further contended that the

Director General of Police, A.P, Additional Director General of Police,

C.I.D or Deputy Superintendent Of Police, C.I.D, Kurnool are not

officer-in-charge of the police station or Investigating Officers, as

defined under Section 2(o) of Cr.P.C. Therefore, entrustment of

further investigation by Director General of Police to Additional

Director General of Police, C.I.D, A.P, in-turn directing Deputy

Superintendent of Police, C.I.D, Kurnool to conduct further

investigation is contrary to the purport of Section 173(8) Cr.P.C.

Yet, another contention raised by Sri P. Veera Reddy, learned

Senior Counsel in W.P.No.14265 of 2020 is that, even the Magistrate

is not competent to order further investigation by changing the

Investigating Agency and that, on account of further investigation,

trial in S.C.No.96 of 2018 and S.C.No.100 of 2019 on the file of

Assistant Sessions Judge, Rayachoty could not be proceeded and it

amounts to violation of fundamental right guaranteed under Article

21 of the Constitution of India, since, speedy trial is part of right to

life and liberty and placed reliance on the judgment of the Apex Court

in Chandra Babu alias Moses v. State3, Tyagi v. Irshad Ali alias

Deepak and others4 and Vinubhai Haribhai Malaviya & Ors. Vs.

3 (2015) 8 SCC 774 4 (2013) 5 SCC 766) 14 MSM,J WP Nos.14229 & 14265 of 2020

State of Gujrat & Anr5 in support of his contention and requested to

pass appropriate order.

Learned Government Pleader for Home supported the

proceedings Rc.No.3224/C-2/2020 dated 13.07.2020 issued by the

Director General of Police, A.P, Mangalagiri at the request of the

Additional Director General of Police, C.I.D, A.P vide letter dated

30.06.2020. He contended that Deputy Superintendent of Police,

C.I.D, Kurnool is an officer superior in rank to the officer in-charge of

the police station, conduct further investigation and placed reliance

on the judgment of the Apex Court in Dinesh Dalmia v. C.B.I6, State

of A.P. v. A.S. Peter7 and unreported judgment of learned single

Judge of High Court of Judicature at Hyderabad in K. Krishna

Reddy v. State of Andhra Pradesh8, on the strength of the

principles laid down in the above judgments, learned Government

Pleader for Home contended that Deputy Superintendent of Police,

C.I.D, Kurnool, being an officer in the superior cadre, can conduct

further investigation, in view of enabling provision under

Section 173(8) Cr.P.C. Learned Government Pleader for Home further

contended that, the real culprits as averred in the counter affidavit

filed by Deputy Superintendent of Police, C.I.D, Kurnool, are Accused

Nos. 7 to 10 along with Accused No.6 and to unearth the real facts or

truth in the allegations, further investigation is being conducted.

Since, the fairness in the investigation is the hallmark of justice,

therefore, the Director General of Police, A.P. entrusted the

investigation to Additional Director General of Police, C.I.D, A.P, who

in-turn entrusted the same to Deputy Superintendent of Police, C.I.D,

5 AIR 2019 Supreme Court 5233 6 AIR 2008 SC 78 7 AIR 2008 SC 1052 8 W.P.No.42627 of 2017 dated 24.04.2018 15 MSM,J WP Nos.14229 & 14265 of 2020

Kurnool with an intention to do complete justice to unravel the truth

and to punish the real accused while taking care that no innocent

cannot be convicted. Hence, further investigation is only in the

interest of justice and not tainted by any malafides and therefore, the

proceedings are legally valid and cannot be set-aside and requested to

pass an order in favour of the respondents and dismiss the writ

petitions.

Considering rival contentions, perusing the material available

on record, the points that arose for consideration are as follows:

1. Whether C.I.D and Law & Order police are independent Investigating Agencies under the control of Director General of Police, Andhra Pradesh.?

2. Whether the Additional Director General of Police, C.I.D, A.P. Mangalagiri is an officer-in-charge of the police station as defined under section 2 (o) of Cr.P.C?

3. Whether the Additional Director General of Police, C.I.D, A.P. is competent to make request to the Director General of Police, A.P, for suo moto transfer of further investigation in Crime No.73 for the offences punishable under Sections 323, 364, 305, 447, 506 and 149 I.P.C of Ramapuram Police Station, YSR Kadapa District to C.I.D, A.P. If so, whether there are any malafides in making such request and whether the Director General of Police, A.P. is competent to transfer further investigation to Additional Director General of Police, C.I.D, A.P. Mangalagiri?

4. Whether on account of further investigation would result in delay of disposal of S.C.No. 96 of 2018 and S.C.No.100 of 2019 pending on the file of Assistant Sessions Judge's Court, Rayachoti is violative of fundamental right guaranteed under Article 21 of the Constitution of India. If so, the impugned proceedings under challenge are liable to be set aside?

16 MSM,J WP Nos.14229 & 14265 of 2020

P O I N T No.1:

The first and foremost contention of the learned Senior Counsel

appearing for the petitioners in both the writ petitions is that though

C.I.D is under the control of state police, it is having independent

entity and it is a separate Investigating Agency to investigate into to

the specified crime enumerated in the Andhra Pradesh Police Manual

and they cannot suo moto usurp the power of officer-in-charge of the

police station or the Investigating Officer, unless there is material to

make such request to the Director General of Police, A.P for transfer

of Investigation. Whereas the learned Government Pleader for Home

contended that, C.I.D is a state agency under the direct control of

Director General of Police, A.P. The Director General of Police, A.P

being the administrative head can entrust further investigation to any

person or agency, if the circumstances warrant such entrustment.

Apart from that, in the facts of the case, allegedly a requisition was

received by the Director General of Police, A.P. from the defacto

complainant, making serious allegations about the earlier

Investigating Officer of Ramapuram Police Station, as it is perfunctory

and the investigation was done only to screen the real culprits and

did not trace the vehicle and other property. Therefore, entrustment

or transfer of Investigation by Director General of Police, A.P. to

Additional Director General of Police, C.I.D, A.P and thereby directing

Deputy Superintendent Of Police, C.I.D, Kurnool, to conduct further

investigation is strictly in adherence of Section 173(8) of Cr.P.C.

In view of the rival contentions, it is appropriate to advert to the

very establishment of C.I.D Police under the provisions of Police Act,

17 MSM,J WP Nos.14229 & 14265 of 2020

1856 and relevant Standing Orders under Andhra Pradesh Police

Manual which defines the powers of C.I.D.

Initially, the Law & Order alone was established within the

state and later the other departments like Crime Investigation

Department, Railway Police Protection Force, Andhra Pradesh

Special Police, Andhra Pradesh Industrial Security Force were

established and they are deemed to be under the control of State

Police i.e. directly under the control of Director General of Police. The

genesis of other police establishments like Industrial Security Force

and Andhra Pradesh Special Police, Railway Police is not relevant,

but, only the formation and organisation of Crime Investigation

Department i.e. C.I.D is relevant for deciding the present issue.

Crime Investigation Department (C.I.D) is a branch of the State

Police Services of India responsible for the investigation of crime,

based on the Criminal Investigation Departments of British police

forces. The first C.I.D was created by the British Government in 1902,

based on the recommendations of the Police Commission. The C.I.D

was split into Special Branch, C.I.D and the Crime Branch (CB-

C.I.D). C.I.D may have several branches from state to state. These

branches include, C.B-C.I.D, Anti-Human Trafficking & Missing

Persons Cell, Anti-Narcotics Cell, Finger Print Bureau, C.I.D, Anti-

Terrorism squad. CB-C.I.D is a special wing in a C.I.D headed by

the Additional Director General of Police (ADGP) and assisted by

the Inspector General of Police (IGP). This branch investigates serious

crimes including murder, riot, forgery, counterfeiting and cases

entrusted to CB-C.I.D by the State Government or the High Court.

18 MSM,J WP Nos.14229 & 14265 of 2020

Therefore, the C.I.D though under the control of Andhra

Pradesh State Police, it is a separate/independent Investigating

Agency for conducting investigation in specific crimes.

Whereas, the Law & Order Police is also an Independent Agency

for conducting investigation in different crimes. Andhra Pradesh

(Andhra Area) District Police Act, 1859, defined the word 'Police' and

it shall include all persons appointed under the Act, but did not

distinguish various branches of state police, however, defined the

powers of Director General of Police, A.P, Additional Director General

of Police, C.I.D, A.P and powers of police officers and other provisions

relating to service conditions of police including departmental actions

against such officers. The Act is totally silent as to establishment of

different Wings or Branches under the control of Andhra Pradesh

Police Department. While exercising powers under Andhra Pradesh

(Andhra Area) Police Act, the state police published Andhra Pradesh

Police Manual. Chapter 44 deals with Crime Investigation

Department, whereas Chapters 42 deals with City/District Armed

Reserve/Special Armed Reserve Police and Chapter 43 deals with

Railway Police. Therefore, Chapter 44 of A.P Police Manual is relevant

for deciding the present controversy.

Standing Order 861-1 specified the functions of Crime

Investigation Department and they are as follows:

A. Investigation of specified cases registered on the orders of B. ADGP C.I.D; cases entrusted by the Government and DGP C. Maintenance, up-dating and use of crime-criminal classification network (CCTN), E-cops, Crime and criminal records, planning and implementation of criminal intelligence and crime analysis to improve prevention, investigation and prosecution.

19 MSM,J WP Nos.14229 & 14265 of 2020

D. Coordination of investigation in the State and with other States and National Institutions/Organisations dealing with crime investigation. E. Efficient, professional and independent functioning of SCRB, FPB and their modernisation.

F. Advise, assist and report to DGP and Government on matters concerning to investigation and prosecution.

G. Interpol liaison, prevention of video-piracy, drug trafficking, taking up anti-human trafficking measures.

H. Updating AP Police Intranet applications and missing persons monitoring.

I. Investigation of white collar crime including Multi-level Marketing (MLM) frauds, chit fund frauds and malpractices in examinations. J. Investigation of organized crime having state-wide ramifications from its source, transit and destination.

Similarly, Standing Order 861-2 specifies the hierarchy of the

Police Officers working in C.I.D, whereas, Standing Order 862-1 says

that, there will be Inspector General of Police in C.I.D who assist the

Additional Director General of Police, C.I.D, A.P. Their general role

and functions will be same as detailed in Order 42. The responsibility

of supervision, direction and powers will be similar to those exercised

by Zonal I.G.P to the extent of the charge they are entrusted in C.I.D.

The main functions of I.G.P C.I.D is supervision of crimes

investigated by the C.I.D, Co-ordination of investigation with local

police/city police, building up and maintaining an efficient and up to

date, crime and criminal information system. Therefore, I.G.P is the

only competent officer to supervise the trials investigated by the

C.I.D, coordinate the investigation with local police and city police to

build up and maintain an efficient and up-to-date crime and criminal

information system, besides the other duties enumerated in the

Standing Order, but, they are not relevant to decide the present

controversy.

20 MSM,J WP Nos.14229 & 14265 of 2020

Similarly, classes of crimes to be investigated by C.I.D and the

procedure prescribed is enumerated under Standing Order 866-1 and

it is appropriate to extract the same for better appreciation of the

case.

"866-1. The Crime Investigation Department, will ordinarily, deal with crimes of the following classes. Request for taking up of investigation by C.I.D can be made by any Unit Officer, but without the orders of Addl.DGP C.I.D or DGP no enquiry or investigation shall be taken up by C.I.D.

A. Counterfeit currency and important thefts of currency notes. B. Counterfeit coining when the counterfeits are struck from dies, and other cognate offences in respect of coining by dies. C. Professional poisoning D. Theft of Government arms and ammunition E. Illicit manufacture, transport, sale, possession of firearms, ammunition, explosives and explosive substances F. Important cases in which foreigners are concerned (including cases of international criminals and trafficking in women by foreigners).

G. Frauds by means of advertisements, bogus funds and companies/societies, impersonation of public servants, and swindling.

H. Specially important cases of murder, all important and inter-

State dacoities, robbery and housebreaking.

I. Frauds, thefts or cheating of a peculiar nature affecting more than one district.

J. Stock Market and Bank frauds.

K. Important terrorist cases and cases of bio terrorism L. Important defalcations of public money and theft of public property.

M. Smuggling of narcotics and psychotropic substances, drug trafficking and serious offences under NDPS Act. N. Financial and Economic crimes i.e., money laundering, bank frauds, forgeries, misappropriations, cheating, breach of trust.

O. Organized crime (Mafia type) and gag cases P. Important conspiracy cases whose ramifications extend to several districts.

Q. Organised offences relating to environment, flora and fauna R. Trafficking in women, girls and children

21 MSM,J WP Nos.14229 & 14265 of 2020

S. Important cases of rape and dowry deaths T. Pornography U. Any serious crime, which appears to have a political motive, including all offences, connected with arms and explosives, which are suspected to be of a political nature.

V. Organised thefts of motor vehicles W. Other cases of Inter-State or International nature requiring specialized investigation and co-ordination. X. Organised cases of atrocities against Scheduled Castes or Scheduled Tribes and important communal or caste riots accompanied by murders and arson Y. Cases of such a nature as, in the opinion of DGP, the Addl DGP C.I.D or district authorities, call for investigation by an officer of the C.I.D. Z. Cases of bringing fraudulent civil suits."

In view of the duties and functions enumerated under Chapter

44 of Andhra Pradesh Police Manual, it is clear that the role of

Additional Director General of Police, C.I.D, A.P is only to supervise

the investigation done by C.I.D and the C.I.D is entitled to investigate

into the crimes specified under Standing Order 866-1 of A.P Police

Manual. In the facts of the case, the investigation was completed in

Crime No.73 for the offences punishable under Sections 323, 364,

305, 447, 506 and 149 I.P.C of Ramapuram Police Station, filed

charge sheet before the jurisdictional Magistrate, who in-turn, after

following necessary procedure committed the case by exercising

power under Section 209 Cr.P.C to the Sessions Division, as the

offences allegedly committed by the petitioners herein along with

other accused are exclusively triable by Court of Sessions. On

committal by the Magistrate to the Sessions Division i.e Principal

District Judge, Kadapa, registered the same as S.C.No.96 of 2018 and

S.C No.100 of 2019, made over to Assistant Sessions Judge, Raychoti

who is having jurisdiction over the area where the scene of offence is

situated and it is pending for trial. Initially, the investigation was not 22 MSM,J WP Nos.14229 & 14265 of 2020

entrusted to the Additional Director General of Police, C.I.D, A.P

admittedly and though C.I.D, A.P at Mangalagiri is a Police Station for

the entire State within the meaning of police station under Section

2(s) of Cr.P.C, cannot exercise power, as it is beyond the scope

of Standing Order 866-1 of A.P Police Manual. The competency of the

Additional Director General of Police, C.I.D, A.P, to make request to

Director General of Police to transfer investigation cannot be decided

at this stage, as the scope of the present issue is to the Limited extent

of separate entity to both Law & Order Police and C.I.D Police.

The Deputy Inspector General of Police, (Law & Order and Co-

ordination), A.P. Mangalagiri filed counter affidavit on behalf of

Director General of Police, A.P., but, in the counter affidavit, nothing

was pleaded as to the entity of C.I.D and Law & Order Police

separately, but raised a contention that C.I.D is part of A.P Police

Department, governed by the Police Act.

Surprisingly, in the counter affidavit filed by Deputy

Superintendent of Police, C.I.D, Kurnool, it is specifically pleaded that

C.I.D is an independent Investigation Agency for investigating into the

crimes and clarified that the C.I.D is a separate or independent

Investigating Agency. In Paragraph No.8, the specific allegation is as

follows.

"........it is to submit that as contemplated under Cr.P.C the investigation may be entrusted to any investigating agency and more so the Director General Police is the State Unit Head and hence is empowered to issue necessary instructions to any investigating agency to investigate the matter and basing on his authority he has entrusted the investigation to the C.I.D., as per the APPM Order No.33(1) and 33(5) and hence the respondent No.6 took up investigation .............."

23 MSM,J WP Nos.14229 & 14265 of 2020

Thus, from the sentences extracted above, it is evident that the

Law & Order Police and C.I.D Police are having separate entity and

they are separate or independent Investigating Agencies by

themselves, subject to the standing order referred above.

When, Deputy Superintendent of Police, C.I.D, Kurnool judicial

admission made in the counter, admitted that C.I.D is an

independent investigating agency, no further discussion is required to

decide as to whether these two agencies are having independent

entity to investigate into the offences. On the basis of judicial

admission made in the counter by Deputy Superintendent of Police,

C.I.D, Kurnool and the very basis of establishment of C.I.D coupled

with the duties specified in Chapter 44 of A.P Police Manual, more

particularly, Standing Order 866-1, I hold the C.I.D is a separate

special independent Investigating Agency to conduct investigation in

the specified crimes as per Standing Order 866-1 or any other crimes

entrusted to it by the concerned authorities. At the same time, the

Law & Order Police is another independent agency for conducting

investigation. Accordingly the point is decided.

P O I N T No.2

The main contention of the petitioners is that Additional

Director General of Police, C.I.D, A.P is not an officer in-charge of the

police station and he is not entitled to make a request for transfer of

Investigation to C.I.D, A.P, to entrust further investigation to Deputy

Superintendent of Police, C.I.D, Kurnool in Crime No.73 of 2016 and

that only officer in-charge of the police station or an Investigating

Officer can conduct further investigation in terms of Section 173(8)

Cr.P.C, thereby, making a request for transfer of Investigation by the 24 MSM,J WP Nos.14229 & 14265 of 2020

Additional Director General of Police, C.I.D, A.P, to the Director

General of Police, A.P on 30.06.2020 by addressing a letter is vitiated

by malafides. The Learned Government Pleader for Home submitted

that such a narrow interpretation cannot be given to the provisions of

Cr.P.C and Cr.P.C is only meant to sub-serve the very purpose of

preventing and detection of crimes, that too, making such request is

only in the interest of justice to unearth the real culprit and not

otherwise, consequently the contention of the petitioners has no

substance.

In view of the rival contentions, it is appropriate to advert to the

relevant provisions of Cr.P.C, various Standing Orders in Andhra

Pradesh Police Manual and Andhra Pradesh (Andhra Area) District

Police Act to decide whether the Additional Director General of Police,

C.I.D, A.P would fall within the definition of "officer-in-charge of the

police station" or Investigating Officer to make such request for

transfer of Investigation.

Section 2(s) of Cr.P.C defined "police station" means any post or

place declared generally or specially by the State Government, to be a

police station, and includes any local area specified by the State

Government in this behalf.

Section 2(o) of Cr.P.C defined "officer in charge of a police

station" which includes, when the 'officer-in-charge of the police

station' is absent from the station house or unable from illness or

other cause to perform his duties, the police officer present at the

station- house who is next in rank to such officer and is above the 25 MSM,J WP Nos.14229 & 14265 of 2020

rank of constable or, when the State Government so directs, any

other police officer so present.

According to Section 173(8) Cr.P.C, nothing in this section shall

be deemed to preclude further investigation in respect of an offence

after a report under sub- section (2) has been forwarded to the

Magistrate and, where upon such investigation, the 'officer-in-charge

of the police station' obtains further evidence, oral or documentary,

he shall forward to the Magistrate a further report or reports

regarding such evidence in the form prescribed; and the provisions of

sub- sections (2) to (6) shall, as far as may be, apply in relation to

such report or reports as they apply in relation to a report forwarded

under sub- section (2). Therefore, the power is conferred on the

'officer-in-charge of the police station' or the Investigating Officer to

conduct further investigation to collect further evidence and file

further report or reports regarding such crimes.

The word 'investigation' is defined under Section 2(h) of Cr.P.C

which includes all the proceedings under this code for the collection

of evidence conducted by a police officer or by any person other than

a magistrate who is authorised by a magistrate in this behalf.

Thus, a bare look at Section 173(8) Cr.P.C, it is clear that, an

'officer-in-charge of the police station' or an 'Investigating Officer' is

competent to conduct further investigation and there is no fetter on

their power to conduct further investigation in the entire Cr.P.C. But

the question is whether the Additional Director General of Police,

C.I.D, A.P, would fall within the definition of 'officer-in-charge of the

police station'. The Police Act did not define the word 'officer-in-

26 MSM,J WP Nos.14229 & 14265 of 2020

charge of the police station', but, in Standing Order 35 of Andhra

Pradesh Police Manual, it is specified that the entire state of Andhra

Pradesh is within the jurisdiction of office of Inspector General of

Police, C.I.D at Mangalagiri. Therefore, the office of Inspector General

of Police by itself is a police station and it's in charge is Additional

Director General of Police, C.I.D. would fall within the ambit of the

'officer-in-charge of the police station', i.e. C.I.D police station, as

defined under Section 2 (o) of Cr.P.C for the purpose of discharging

the duties specified under Chapter 44 of Andhra Pradesh Police

Manual. He is not an Investigating Officer in Crime No.73 of 2016.

Therefore, on strict interpretation of Section 173(8) read with Section

2(o) of Cr.P.C, the Additional Director General of Police, C.I.D, A.P

would not fall within the definition of 'officer-in-charge of the police

station' for the purpose of conducting further investigation by

exercising power under Section 173(8) of Cr.P.C.

Whereas, the learned Government Pleader for Home would

contend that, such narrow interpretation cannot be given, as it is

intended to do justice to the victims of a crime.

No doubt such restrictive meaning cannot be given to the word

'officer-in-charge of the police station'. But, at the same time, it is the

duty of the Court to protect the interest of the innocent persons and

strike balance between the rights of victims and rights of the accused

while giving interpretation to such word 'officer-in-charge of the police

station'. When such an attempt is made to strike balance between the

interest of victims of the crime and innocent persons of any crime, it

is the difficult to give such wider interpretation to include every police

officer in the state as 'officer-in-charge of the police station'. Take for

instance, the Railway Police Protection Force or Andhra Pradesh 27 MSM,J WP Nos.14229 & 14265 of 2020

Special Police or Industrial Security Force. They are also Police

Stations within the control of the Andhra Pradesh Police

Organisation. But they cannot be given such status of 'officer-in-

charge of the police station' for the purpose of conducting further

investigation in a crime which is already invested with different

agency. If, such interpretation as put forth by the learned

Government Pleader for Home is accepted, it will have it serious

consequences and every 'officer-in-charge of the police station'

belonging to different agencies, as referred above, may come forward

to take up further investigation suo moto one after the other. Hence,

such wider interpretation cannot be given to the word 'officer-in-

charge of the police station'.

The obvious object of this definition is that, the working at a

police station should not stop when the 'officer-in-charge of the police

station' is absent for illness or other cause is unable to discharge his

duties. The definition of the 'officer-in-charge of the police station'

given in the section is inclusive definition. It indicates that when the

'officer-in- charge of the police station' is absent from the station

house or unable to discharge the duty due to illness or other cause to

perform his duties, the police officer present at the station house who

is next in Rank to such officer and is above the rank of constable, can

discharge the duties of the 'officer-in-charge of the police station'.

(vide Tiran Mandal v. Malati Bibi9 and Haribandhu v. Narayan10).

The State Government may empower any other officer inferior in

Rank to discharge the duties of the 'officer-in-charge of the police

station'. In the presence of the 'officer-in-charge of the police station'

9 1967 Cal 145 10 1963 Cut 790 28 MSM,J WP Nos.14229 & 14265 of 2020

no other police officer can discharge the duties of the officer in charge

(vide Momin v. Emperor11).

Thus, it is obvious from the definition of 'officer-in-charge of

the police station' under Section 2(o) of Cr.P.C coupled with the

language employed in Section 173(8) Cr.P.C that only an officer who

is in-charge of the police station or an investigating officer who has

conducted investigation earlier and filed charge-sheet alone is entitled

to conduct investigation, unless the Higher Court transferred such

further investigation to any other independent agency for conducting

further investigation. Consequently, the Additional Director General

of Police, A.P would not fall within the definition of 'officer-in-charge

of the police station' for the purpose of conducting further

investigation, exercising power under Section 173(8) Cr.P.C, though

he is an 'officer-in-charge of the police station' as defined under

Section 2 (o) Cr.P.C for the police station of C.I.D of Andhra Pradesh.

Accordingly the point is answered.

P O I N T No.3

The very basis for transfer of further investigation is the letter

addressed by the Additional Director General of Police, C.I.D, A.P to

the Director General of Police, A.P. dated 30.06.2020 with a request

to transfer the investigation in Crime No.73 of 2016. The contents of

the letter are relevant for the purpose of deciding the controversy

between the parties and the same is extracted hereunder for better

appreciation and understanding of the case.

11

1928 Cal 771 29 MSM,J WP Nos.14229 & 14265 of 2020

Similarly, a Memorandum was issued by the Director General

of Police on 13.07.2020 transferring Crime No.73 of 2016 on the file

of Ramapuram Police Station to C.I.D for further investigation and

the same is reproduced in toto for better appreciation of facts.

30 MSM,J WP Nos.14229 & 14265 of 2020

A perusal of the request made by the Additional Director

General of Police, C.I.D, A.P, for transfer of Investigation in Crime

No.73 of 2016 of Ramapuram Police Station to C.I.D, A.P, it did not

disclose any specific reason for transfer of Investigation to Additional

Director General of Police, C.I.D, A.P by the Director General of 31 MSM,J WP Nos.14229 & 14265 of 2020

Police, A.P. His request at the end of the letter is that, only to accord

permission to transfer the above case to C.I.D, A.P for conducting

further investigation. It is not known as to what is the source of

information about pendency of the proceedings before the Court and

requirement of further investigation by Additional Director General of

Police, C.I.D, A.P, but importing his own knowledge, he made such

incessant or invidious request for transfer of further investigation in

Crime No.73 of 2016 to C.I.D, A.P, Mangalgiri. It is difficult to

comprehend the reason behind addressing this letter dated

30.06.2020 by the Additional Director General of Police, C.I.D, A.P to

the Director General of Police, A.P. Obviously, reasons may be

different, the Director General of Police, A.P and the Additional

Director General of Police, C.I.D, A.P, who are competent to resort to

make request and pass order did not file independent counters to

explain as to what compelled the Additional Director General of

Police, C.I.D, A.P to address the letter to Director General of Police,

A.P for transfer of Investigation and how he could know about the

details of Crime No.73 of 2016. In the absence of any reasons

mentioned in the letter dated 30.06.2020 addressed by the Additional

Director General of Police, C.I.D, A.P to the Director General of Police,

A.P., it is difficult to presume the lurking reason behind addressing

such letter to take up further investigation. The Additional Director

General of Police, C.I.D and Director General of Police, A.P. appears

to have shown interest in the matter of conducting further

investigation with great sense of responsibility. At the same time, they

forgot about their responsibility to file counter with the same sense.

In fact, they are the competent persons to explain under what

circumstances such request is made by Additional Director General

of Police, C.I.D, A.P to make such request and pass an order by 32 MSM,J WP Nos.14229 & 14265 of 2020

Director General of Police, A.P. More curiously, the Deputy

Superintendent of Police, C.I.D, Kurnool, who is incompetent to

explain what compelled the two authorities referred above to take

such decision, filed counter importing his personal knowledge. The

counter filed by the Deputy Superintendent of Police, C.I.D, Kurnool,

is without any basis regarding the reason for taking such action for

further investigation

One of the major contentions of the petitioners is that, due to

political influence on the Additional Director General of Police, C.I.D,

A.P he had addressed such letter in the guise of further investigation

and attributed malafides indirectly to Additional Director General of

Police, C.I.D, A.P. But, whereas, the learned Government Pleader for

Home contended that a representation was received from the defacto

complainant in Crime No.73 of 2016 by the Additional Director

General of Police, C.I.D, A.P, only in pursuance of such

representation from the defacto complainant, he addressed such

letter to the Director General of Police, A.P.

No doubt, if representation is received by the Additional

Director General of Police, C.I.D, A.P, from the defacto

complainant, his duty on the administrative side is to refer the same

to the concerned or to the higher officials to take further action. But

he cannot request directly for transfer of Investigation from one

independent investigating agency to the other independent

investigating agency. Apart from that, letter dated 30.06.2020 is

totally silent about the representation he received from the defacto

complainant in the above crime. If, he really had received such

representation/letter from the defacto complainant, he would have 33 MSM,J WP Nos.14229 & 14265 of 2020

referred the same at least in the reference or in the body of the letter

dated 30.06.2020 to show the cause for making such request to

transfer the crime. Even if such request is received, he cannot suo

moto make a request for transfer of Investigation and at best he may

invite instructions from the higher superior officers i.e. Director

General of Police, A.P. But, for the reasons best known to the

Additional Director General of Police, C.I.D, A.P, he has suo moto

taken up the issue and addressed letter to the Director General of

Police, A.P even without referring the alleged representation received

by him, as contended during oral argument by the learned

Government Pleader for Home.

In the absence of any such details in the letter dated

30.06.2020, there is every possibility to attribute malafides to the

Additional Director General of Police, C.I.D, A.P, in view of the

material available on record. But, I am not recording any finding as to

the malafides attributed to the Additional Director General of Police,

C.I.D, A.P who is in the highest rank of the police department and

they are not supposed to have any special interest in the investigation

of any crime and supposed to work free from any influences since

their role is to take up investigation in the matter specified in Chapter

44 of Andhra Pradesh Police Manual or on receipt of any complaint,

they are competent to register crime and investigate into it, if it falls

within the powers that conferred on the Additional Director General

of Police, C.I.D, A.P in terms of Chapter 44 of Andhra Pradesh Police

Manual. In the present case, it appears that the Additional Director

General of Police, C.I.D, A.P, exercised the jurisdiction suo moto,

though charge sheet is filed and registered as S.C.No. 96 of 2018 and

S.C.No.100 of 2019 for various offences pending on the file of 34 MSM,J WP Nos.14229 & 14265 of 2020

Assistant Sessions Judge, Raychoty. Therefore, the Additional

Director General of Police, C.I.D, A.P is not supposed to make a

request suo moto to conduct further investigation in the pending

matter before the competent court and he cannot exercise power

under Section 173(8) Cr.P.C suo moto. In the counter affidavit filed by

Deputy Superintendent of Police, C.I.D, Kurnool, he asserted that as

per Standing Order 35 (1) of Andhra Pradesh Police Manual, the main

role of Additional Director General of Police, C.I.D, A.P is to ensure

performance of one of the most vital functions of the police i.e.

investigation and detection of cases in the State.

Similarly, Standing Order 35(2)(e) of Andhra Pradesh Police

Manual, empowered the Additional Director General of Police, C.I.D,

A.P to issue general direction, supervise and coordination of

investigation of cases across the state.

Taking advantage of these standing orders learned Government

Pleader for Home contended that the Additional Director General of

Police, A.P, has got power to make a request to transfer investigation

from one investigating agency to another investigating agency. But, I

am unable to agree with the contention of the Additional Director

General of Police, C.I.D, AP, for the simple reason that, Standing

Order 35(1) and (2)(e) permits the Additional Director General of

Police, C.I.D, A.P to ensure investigation and detection of cases in the

State on correct lines and to coordinate with the investigation in

cases across the state. But, it is subject to limitations specified in

Chapter 44 of Andhra Pradesh Police Manual and it is not

independent of the power conferred on the Additional Director

General of Police, C.I.D, A.P. When the investigation is being done or

done by a different independent agency i.e. Law & Order Police, the 35 MSM,J WP Nos.14229 & 14265 of 2020

Additional Director General of Police, C.I.D, A.P has no role to

conduct further investigation or supervise the investigation being

done by the other agency. At best, the Additional Director General of

Police, Law & Order Police is competent to supervise the investigation

being done by the investigating officer throughout the state and

ensure that the investigation is being done in accordance with the

procedure. Therefore the Additional Director General of Police, C.I.D,

A.P, is not entitled to usurp the power suo moto that vested on the

'officer-in-charge of the police station' of a different investigating

agency or powers vested on a superior officer of the police of Law &

Order. The very addressing of a letter by the Additional Director

General of Police, C.I.D, A.P without any requisition or representation

from any person creates any amount of doubt on the bonafides of the

Additional Director General of Police, C.I.D, A.P. It is known fact that

every officer, either police or judicial officer have to act within their

limitations and jurisdiction. If they exceed the jurisdictional limits,

certainly they are bound to face the consequences of exercise of

excessive jurisdiction under the guise of suo moto power.

Contextually, it is necessary to refer the duties of the police

officers. The primary duty of the police is to maintain law and order

since they are working for providing protection to the public from any

injury.

The most important traditional function of the police is to deal

with the criminal in an action, this function required detection and

investigation of crime, arrest of the offenders and the collection of

evidence against those who are prosecuted in Court of law. Dr.

Jerome Hall has pointed out in his article "Police authority and 36 MSM,J WP Nos.14229 & 14265 of 2020

practices" that according to the legal and political theory, the rights

and duties of the police to inflict punishment are sharply limited but

since their job is to pick up criminals from society. They play a vital

role in bringing the offenders to justice. It is generally believed that

police are obliged by the nature of their duties to use violence as a

measure to control and apprehend criminals in the presence of

counter violence. The Apex Court has observed in number of cases

that the duty of the Investigating Officer is not merely to bolster up a

prosecution case with such evidence as may enable the Court to

record a conviction but to bring out the real unvarnished truth.

The third function of the police is owing to the growth of certain

problems of the contemporary period involving the enforcement of a

wide variety of regulation. Which are not concerned directly with the

criminal; direction of automobile traffic, enforcement sanitation and

licensing regulations, control of crowds, action against obscene

literature and civil defence and disaster management duty. The police

in India have to perform all the functions enumerated above as in

other countries, but their burden is exceptionally heavy due to the

peculiarity of the socio-economic life of the community,

heterogeneous nature of the population and the existence of almost

all the political philosophies.

The relationship of police with the community/society is

relevant for the purpose of deciding the issue before the Court.

Everyone knows about the unpleasant relationship between police

and community which creates difficulties during investigation, expect

that all difficulties in society should be solved by the police, but the

basic duty of police is protection of human life, liberty and property

and enforcement of law and order. Increasing crime, growing pressure 37 MSM,J WP Nos.14229 & 14265 of 2020

of living, rising population, labour disputes, problems of student,

political activities with the call of extremists, enforcement of social

and economic legislation etc. have added new dimension of police

tasks in the Country. The lack of public cooperation in police work

makes difficult to discharge their function efficiently. It is common

fact that law-abiding citizens have greater fear for police than

offenders and do not hesitate to use violence, undue influence to

secure their escape, threats etc. On the other hand normal people

avoid contact with the public and prefer to keep away from law courts

even at the loss of suffering or loss of legitimate claims rather than

reporting matter to the police for their action.

The Apex Court in "Rampal Pithwa Rahidas and ors. vs.

State of Maharashtra12" held that police must carry out

investigations with due honesty, and fairly and must not resort to

fabricating false evidence or creating false clues. Otherwise it would

be an invitation to anarchy.

It is of the utmost importance that people entrusted with the

investigation must be scrupulously honest and efficient; otherwise

cases both of innocent persons being wrongly convicted and of really

guilty persons being wrongly let off are likely to occur.

Therefore, it is imperative on the part of the police to conduct

investigation in a fair manner to see that no innocent be convicted by

fabricating any evidence during investigation.

The investigating officer is required not only to collect evidence

for the successful prosecution of the case but also to exercise his

discretion in arriving at a decision as to whether the case is fit for

12 1994 Cri LJ 2320 38 MSM,J WP Nos.14229 & 14265 of 2020

trial. It is, therefore, just and expedient that the person entrusted

with the investigation should be one who is not unduly interested in

the case and is not personally acquainted with its facts (Vide Gopal

Krishna v State13)

As citizenry of the country, complaining against the conduct of

police officials, the Central Government constituted many committees

in the name of police reforms. The Police reforms has been on the

agenda of Governments almost since independence but even after

more than 50 years, the police is seen as selectively efficient,

unsympathetic to the under privileged. It is further accused of

politicization and criminalization. In this regard, one needs to note

that the basic framework for policing in India was made way back in

1861, with little changes thereafter, whereas the society has

undergone dramatic changes, especially in the post independence

times. The public expectations from police have multiplied and newer

forms of crime have surfaced. The policing system needs to be

reformed to be in tune with present day scenario and upgraded to

effectively deal with the crime and criminals, uphold human rights

and safeguard the legitimate interests of one and all.

Various Committees/Commissions in the past have made a

number of important recommendations regarding police reforms.

Notable amongst these are those made by the National Police

Commission (1978-82); the Padmanabhaiah Committee on

restructuring of Police (2000); and the Malimath Committee on

reforms in Criminal Justice System (2002-03). Yet another

Committee, headed by Shri Ribero, was constituted in 1998, on the

directions of the Supreme Court of India, to review action taken by

13 AIR 1964 All 481 39 MSM,J WP Nos.14229 & 14265 of 2020

the Central Government/State Governments/UT Administrations in

this regard, and to suggest ways and means for implementing the

pending recommendations of the above Commission.

The important recommendations made by various Commissions

and Committees and the specific action taken by the Central

Government was also considered by the Courts. Before

recommendations made by Padmanabhaiah Committee, Malimath

Committee and Ribero Committee, an another Committee was

constituted in 1998, on the directions of the Supreme Court of India,

to review action taken by the Central Government. The Committee

short-listed 49 recommendations from out of the recommendations of

the previous Commission/Committees on Police Reforms as being

crucial to the process of transforming the police into a professionally

competent and service oriented organization.

(I) improving professional standards of performance in urban as well rural police stations, (II) emphasizing the internal security role of the police, (III) addressing the problems of recruitment, training, career progression and service conditions of police personnel, (IV) tackling complaints against the police with regard to non-

registration of crime, arrests, etc. and (V) insulating police machinery from extraneous influences.

The last two recommendations gained importance and mostly

made an attempt to separate the investigating agency from the

control of political bosses and politicians to stop but so far, no such

recommendations were implemented by the government till date.

The Police Act, 1861 vests the superintendence of the police

directly in the hands of the political executive i.e the state

government. At the present time, the Head of Police (Director

General/ Inspector General) enjoys her/his tenure at the pleasure of 40 MSM,J WP Nos.14229 & 14265 of 2020

the Chief Minister. She/he may be removed from the post at any time

without assigning any reasons. Such a state of affairs has resulted in

wide-spread politicisation of the police where increasingly, allegiance

is owed not to the law but to the ruling political elite. The

pervasiveness of this influence over the rank and file, as much as

senior police officers in ways that are not keeping with police

regulations means that there is lesser obedience to the law, chain of

command and established procedures. The upshot being, a situation

where police officers are functioning with a greater willingness to obey

unwritten and informal orders to subvert legitimate democratic

processes in lieu of personal gain and political patronage. This

interferes with the exercise of democratic freedom by those who are

opposed to the party in power. It is well demonstrated that political

interference in the investigative work of the police hinders rule of law.

Officers are often pressured to use their investigative powers to

pursue political vendettas or shield those who enjoy the patronage of

politicians belonging to the ruling party. The registration or non-

registration of cases to favour or harm or to manipulate crime

statistics for political expediency creates a deep sense of

discrimination and uncertainty in the public. On the other hand,

officers who resist illegitimate political interference are subject to

frequent transfers and in extreme cases, departmental inquiries and

even false legal proceedings. All this has the cumulative effect of

impairing any ability of the police force to perform its main function

to provide the community with a safe and secure environment.

In view of these circumstances, all these Committees made

serious recommendations for separation of Investigating Agency from

political parties, but, till date, the recommendations were not 41 MSM,J WP Nos.14229 & 14265 of 2020

implemented and the system is working under the direct control of

the politicians as well as the political parties.

If, for any reason, the police exceeds the jurisdictional limits

either of their own or due to influence of any Agencies, it will lead to

"democratic backsliding" i.e de-democratization or erosion of

democracy. To avoid such backsliding of democracy, the Investigating

Agencies have to maintain the basic standards both ethical and

procedural.

Here, the Additional Director General of Police, C.I.D, A.P

though not an 'officer-in-charge of the police station' to conduct

further investigation in Crime No.73 of 2016 on the file of

Ramapuram Police Station, and file further report, addressed a letter

to Director General of Police, A.P, usurping the power of the

Investigating Officer in Crime No.73 of 2016.

Turning to the facts of the case, the Additional Director General

of Police, C.I.D, A.P without any basis, but, gaining knowledge about

the pendency of sessions cases pertaining to Crime No.73 of 2016

made a request suo moto for transfer of investigation. This is nothing

but, addressing a letter at his whim and caprice due to lurking

interest of undisclosed bigwigs of the State behind this letter dated

30.06.2020.

The contention of the learned Government Pleader for Home is

that, the Additional Director General of Police, C.I.D, A.P, received

representation and on the basis of the said representation, he made a

request for transfer of Investigation. As discussed above, there was no

such reference about the representation received from the defacto 42 MSM,J WP Nos.14229 & 14265 of 2020

complainant in the letter addressed by Additional Director General of

Police, C.I.D, A.P to the Director General of Police, A.P, so also in the

Memorandum Rc.No.3224/C-2/2020 dated 13.07.2020 issued by the

Director General of Police, A.P to Additional Director General of

Police, C.I.D, A.P transferring investigation. At this stage, it is once

again relevant to refer to the allegations made in the counter affidavit

filed by Deputy Superintendent Of Police, C.I.D, Kurnool, and it is

extracted hereunder for better appreciation of the case:

""acting upon the representation of the defacto complainant, the Director General of Police, Andhra Pradesh, Mangalagiri has entrusted the investigation to the C.I.D, A.P., Mangalagiri vide Rc.No.3224/C-2/2020 dated 13.07.2020, whereby the Additional Director General of Police, C.I.D, Mangalagiri entrusted the investigation to Dy.Supt of Police, C.I.D, Kurnool vide Memo C.No.4628/C32/C.I.D/2020 dated 15.07.2020. He took up investigation and basing on the proceedings and memo vide C.No.23/C-2/DCRB-KDP/2020 dated 16.07.2020 of Superintendent of Police, Kadapa, collected C.D file from the Inspector of Police, LR Palli Circle, YSR Kadapa District. Respondent No.6/DEPUTY SUPERINTENDENT OF POLICE, C.I.D, Kurnool, ........".

The contention of Deputy Superintendent Of Police, C.I.D,

Kurnool, appears to be that acting upon the representation of the

defacto complainant, the Director General of Police, A.P., has

entrusted the investigation to the C.I.D vide proceedings dated

13.07.2020. Thus, it is clear from the contention in the first four

lines of Paragraph No.6 of the counter filed by Deputy Superintendent

Of Police, C.I.D, Kurnool, that, the Director General of Police, A.P,

herein acted upon the representation of the defacto complainant. To

whom the defacto complainant submitted such representation, either

to the Additional Director General of Police, C.I.D, AP or Director

General of Police, A.P is a mystery. Such mystery cannot be

demystified in view of limited questions. If the Additional Director

General of Police, C.I.D, A.P received such representation, he ought to

have forwarded the same along with letter to Director General of 43 MSM,J WP Nos.14229 & 14265 of 2020

Police, A.P, to act upon such representation. But, the letter dated

30.06.2020 is silent about the representation of the defacto

complainant in Crime No.73 of 2016. Thus, it is evident from the

record that, for the reasons best known to him which this Court

cannot explain in the judgment, Additional Director General of Police

addressed such letter dated 30.06.2020 for transfer of investigation

and the Director General of Police, A.P, in most nonchalant manner,

issued Memo dated 13.07.2020 transferring investigation to C.I.D.

Thus, it is clear that the Director General of Police, A.P acted upon

the request made by the Additional Director General of Police, C.I.D,

A.P and passed a mechanical order transferring further investigation

in Crime No.73 of 2016 of Ramapuram Police Station without

assigning any reason to C.I.D, A.P. Addressing such letter will give

rise to many suspicions. Thus, the Additional Director General of

Police, C.I.D, A.P, who is the head of premier Investigating Agency in

the State is incompetent to make such request for transfer of

investigation from one independent Investigating Agency to him.

Though an administrative order is passed by the Director

General of Police, A.P, transferring investigation in Crime No.73 of

2016 to C.I.D by letter dated 13.07.2020, such administrative acts

are subject to scrutiny by the higher Courts while exercising power of

judicial review under Article 226 of the Constitution of India. Any

administrative act or order passed or proceedings issued must be

supported by a reason. However, Deputy Superintendent Of Police,

C.I.D, Kurnool by importing his own knowledge filed elaborate

counter, as per the allegations made in the counter, a representation

was allegedly submitted by the defecto complainant in Crime No.73 of

2016 complaining about the unfair or perfunctory investigation done 44 MSM,J WP Nos.14229 & 14265 of 2020

by the original investigating officer in Crime No.73 of 2016, so also

the other allegations made against the different accused persons who

are not arraigned as accused in S.C.No.96 of 2018 and S.C.No.100 of

2019 pending on the file of Assistant Sessions Judge, Rayachoty. It

appears that Deputy Superintendent of Police, C.I.D, Kurnool

exhibited his personal knowledge in the counter, though the

competent officer should explain such reason for addressing letter

13.07.2020 who is the Additional Director General of Police, A.P. The

Director General of Police has to explain the reason for issuing such

memo dated 13.07.2020 transferring investigation to C.I.D. Hence, in

the absence of their independent counters filed by the Director

General of Police, A.P and Additional Director General of Police, C.I.D,

A.P, it is difficult to believe the reason for passing such administrative

order by the Director General of Police, A.P and addressing a letter by

the Additional Director General of Police, C.I.D, A.P to the Director

General of Police, A.P. When the order or proceeding issued by the

Director General of Police, A.P, is bereft of any reason, while

exercising power of judicial review under Article 226 of the

Constitution of India, this Court can set-aside such an order. The law

declared by the Apex Court is abundantly clear that when the order

passed by the administrative authority or action taken by

administrative authority is without any reason, it is against the

principles of natural justice and the court can quash proceedings or

orders passed by administrative authority.

The jurisdiction of Court under Article 226 of Constitution of

India is wide and this Court can examine the process of passing

administrative order. If the Court finds that the procedure followed by

the administrative authorities is contrary to the principles of natural 45 MSM,J WP Nos.14229 & 14265 of 2020

justice or the procedure established, the Court can interfere with the

administrative orders passed by the administrative authorities or

quasi judicial authorities. In "West Bengal Central School Service

Commission v. Abdul Halim14" herein the Apex Court reiterated the

following principles of judicial review.

"It is well settled that the High Court in exercise of jurisdiction Under Article 226 of the Constitution of India does not sit in appeal over an administrative decision. The Court might only examine the decision making process to ascertain whether there was such infirmity in the decision making process, which vitiates the decision and calls for intervention Under Article 226 of the Constitution of India.

In any case, the High Court exercises its extraordinary jurisdiction Under Article 226 of the Constitution of India to enforce a fundamental right or some other legal right or the performance of some legal duty. To pass orders in a writ petition, the High Court would necessarily have to address to itself the question of whether there has been breach of any fundamental or legal right of the Petitioner, or whether there has been lapse in performance by the Respondents of a legal duty.

The High Court in exercise of its power to issue writs, directions or orders to any person or authority to correct quasi-judicial or even administrative decisions for enforcement of a fundamental or legal right is obliged to prevent abuse of power and neglect of duty by public authorities.

In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan v. Mallikarjuna reported in AIR 1960 SC

137. If the provision of a statutory Rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari.

The sweep of power Under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no

14 2019 (9) SCALE 573

46 MSM,J WP Nos.14229 & 14265 of 2020

reasonable person could have ever arrived at it, the same is liable to be struck down by a writ Court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse.

However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ Court does not interfere, because a decision is not perfect."

In M/s. Steel Authority of India Ltd., v. STO, Rourkela-I

Circle & Ors15, the Supreme Court testing the correctness of an

order passed by the Assistant Commissioner of Sales Tax against the

assessment, held that, "Reason is the heartbeat of every conclusion. It

introduces clarity in an order and without the same it becomes

lifeless".

In Kranti Associates Private Limited and another vs Masood

Ahamed Khan16, the Apex Supreme Court has considered a catena of

decisions, which are extracted hereunder:

"12. The necessity of giving reason by a body or authority in support of its decision came up for consideration before this Court in several cases. Initially this Court recognised a sort of demarcation between administrative orders and quasi- judicial orders but with the passage of time the distinction between the two got blurred and thinned out and virtually reached a vanishing point in the judgment of this Court in A.K. Kraipak v. Union of India [(1969) 2 SCC 262].

13. In Keshav Mills Co. Ltd. v. Union of India [(1973) 1 SCC 380], this Court approvingly referred to the opinion of Lord Denning in R. v. Gaming Board for Great Britain, ex p Benaim [(1970) 2 QB 417] and quoted him as saying "that heresy was scotched in Ridge v. Baldwin [1974 AC 40]".

14. The expression "speaking order" was first coined by Lord Chancellor Earl Cairns in a rather strange context. The Lord Chancellor, while explaining the ambit of the writ of certiorari, referred to orders with errors on the face of the record and pointed out that an order with errors on its face, is a

15 2008 (5) Supreme Court Cases 281 16 (2010) 9 SCC 496 47 MSM,J WP Nos.14229 & 14265 of 2020

speaking order. (See pp. 1878-97, Vol. 4, Appeal Cases 30 at 40 of the Report).

15. This Court always opined that the face of an order passed by a quasi- judicial authority or even an administrative authority affecting the rights of parties, must speak. It must not be like the "inscrutable face of a sphinx".

In Union of India v. Mohan Lal Capoor17 the Apex Court

while dealing with the question of selection under the Indian

Administrative Service/Indian Police Service (Appointment by

Promotion) Regulations held that the expression "reasons for the

proposed supersession" should not be mere rubber-stamp reasons.

Such reasons must disclose how mind was applied to the subject-

matter for a decision regardless of the fact whether such a decision is

purely administrative or quasi-judicial. The Court held that the

reasons in such context would mean the link between materials

which are considered and the conclusions which are reached.

Reasons must reveal a rational nexus between the facts considered

and the conclusions reached. Only in this way could opinions or

decisions recorded be shown to be manifestly just and reasonable."

The justice system is dynamic in nature and has therefore advanced

with civilization to help the individuals to deal with ills of the society.

Principles of natural justice provide them with adequate opportunity

to defend themselves in a fair and reasonable ground. It is an

inherent part of Administrative Law, and helps the citizens to protect

him against organized power. Natural justice has no fixed definition it

has been defined by various scholars, lawyers, and judges in different

ways. Nevertheless, Lord Esher M.R has defined it as "the natural

sense of what is right and wrong." Natural justice is not a water-tight

compartment it has various shapes, forms, and shades, it has evolved

17 (1973) 2 SCC 836 48 MSM,J WP Nos.14229 & 14265 of 2020

over the ages and recognized as a sign of a healthy government. Rules

of Natural Justice are rational and appeals to the basic sense of man.

Natural Justice is mainly embedded in the conscience of a common

man and is independent of the codified law. It is adhered by all the

administrative, judicial, and quasi-judicial body with utmost

importance to enforce rule of law, accountability in administrative

authority and to show regard for human dignity. These principles are

those rules which have been laid down by the court to protect the

common man against arbitrary use of power by an administrative

body.

The importance of 'reason' in the legal system is to connect the

dots between facts and decisions; it helps in establishing precedents

to the system therefore it adds more certainty. Reasons provided

must be clear, cogent and succinct. This feature works on two

principles; firstly, if lower body has given adequate reasons and

higher body is affirming that decision then it is not necessary to

provide anymore reasons but if the higher body is altering lower

body's decision, then reasons must be provided. Secondly, if the

higher body is affirming lower body's decision who has not given

adequate reasons then the latter must provide with it. In Eurasian

Equipment and Chemicals Limited v. State of West Bengal18, all

the executive engineers were blacklisted. The Supreme Court held

that without giving a valid and reasonable ground, the administrative

body cannot blacklist anyone on blanket orders; further the

individual who has been show caused should be given fair

opportunity to be heard.

18

[1975] 2 SCR 674 49 MSM,J WP Nos.14229 & 14265 of 2020

Thus, natural justice is an essential component of the justice

system and it not only provides fair and reasonable opportunity to an

individual to defend himself, but also an effective tool to protect the

citizens against evils of the administrative system. It is the duty of the

administrative, judicial and quasi-judicial bodies to ensure

reasonable and justifiable order/judgment which can be guaranteed

by proper application of principle of natural justice. The act, in

violation of the principles of natural justice or quasi-judicial act in

violation of the principles of natural justice, is void or of no value.

In A.R. Antulay v. R.S. Nayak19, Supreme Court held that violation

of natural justice would render the order void. In Anisminic Limited

v. Foreign Compensation Commission20 the House of Lords held

that breach of natural justice nullifies the order.

In view of the law declared by the Supreme Court and

persuaded by the law laid down by other Courts in the catena of

decisions referred above, the order passed by the Director General of

Police, A.P on the request made by the Additional Director General of

Police, C.I.D, A.P is liable to be set-aside as the order is bereft of

reason.

No doubt, further investigation can be done by the 'officer-in-

charge of the police station', in view of the power vested on such

officer by virtue of Section 173(8) Cr.P.C even without obtaining

permission from the jurisdictional Magistrate or Sessions Court and

file final report or reports on collection of additional evidence, but not

by any person other than the 'officer-in-charge of the police station'.

Learned Government Pleader for Home contended that the Additional

19 [1984] S.C.R. 495 20 [1969] 2 AC 147 50 MSM,J WP Nos.14229 & 14265 of 2020

Director General of Police or Deputy Superintendent Of Police, C.I.D,

Kurnool are the senior officers of the police department and they are

entitled to conduct further investigation. But, I am unable to agree

with the view of the learned Government Pleader for Home, for the

reason that, the Additional Director General of Police, C.I.D, A.P and

Deputy Superintendent Of Police,C.I.D, Kurnool are members of a

different Investigating Agency which is claiming to be a premier

Investigating Agency in the State level under the control of the State

Police Organisation. The claim of the C.I.D as a premier investigating

agency is nothing but rodomontade, that means boastful or inflated

talk or behaviour of the agency.

Section 36 Cr.P.C deals with powers of superior officers of

police. According to it, the Police officers superior in rank to an officer

in charge of a police station may exercise the same powers,

throughout the local area to which they are appointed, as may be

exercised by such officer within the limits of his station.

Though the jurisdiction of the Additional Director General of

Police, C.I.D, A.P is extended throughout the State, he is not

officer-in-charge of the police station or superior officer of officer-in-

charge of the police station for conducting further investigation within

the meaning of Section 2(o) read with Section 173(8) Cr.P.C as stated

above. The power under Section 36 Cr.P.C has to be exercised by

District Police Chief who by virtue of the said section is empowered to

appoint an officer above the rank of an officer in charge of a police

station to exercise the same powers as may be exercised by an

'officer-in-charge of the police station'.

51 MSM,J WP Nos.14229 & 14265 of 2020

Learned Government Pleader for Home placed reliance on the

judgement of Apex Court in State of A.P. v. A.S. Peter (referred

supra), wherein the Apex Court held that, investigation whether

taken up by different agency C.I.D is a part of investigating other

cities of the state. Further investigation directed by Additional

Director General of Police exercising power under Section 36 of the

code empowers a police officer, superior in Rank to an officer in

charge of a police station to exercise same powers throughout local

area to which they are appointed as may be exercised by such officer

within the limits of a station therefore permissible for higher

authority to carry out or direct further investigation in the matter

jurisdiction of High Court and the Apex court set aside the judgement

of the High Court of Andhra Pradesh.

Learned Government Pleader for Home relied on judgement of

this court in K Krishna Reddy v. State of Andhra Pradesh (referred

supra) learned Single Judge by placing reliance on various

judgements including the judgement in State of A.P. v. A.S. Peter

(referred supra) and Vinay Tyagi v. Irshad Ali alias Deepak and

others (referred supra) held that, further investigation can be

undertaken by the 'officer-in-charge of the police station'.

Refuting these contentions, learned Senior Counsel Sri P. Veera

Reddy has placed reliance on judgement of Apex Court in Chandra

Babu alias Moses v. State (referred supra) where the Division Bench

of the Supreme Court held that transfer of Investigation by Magistrate

after receipt of report on reference under Section 156 (3) Cr.P.C from

one agency to another investigating agency is an illegality. In the facts

of the above statement, the Apex Court referred the judgement of 52 MSM,J WP Nos.14229 & 14265 of 2020

another Division Bench in Vinay Tyagi v. Irshad Ali alias Deepak

and others (referred supra) wherein the Court opined as follows:

"37. In some judgments of this Court, a view has been advanced, [amongst others in Reeta Nag v. State of W.B, Ram Naresh Prasad v. State of Jharkhand and Randhir Singh Rana v. State (Delhi Admn.) that a Magistrate cannot suo motu direct further investigation under Section 173(8) of the Code or direct reinvestigation into a case on account of the bar contained in Section 167(2) of the Code, and that a Magistrate could direct filing of a charge-sheet where the police submits a report that no case had been made out for sending up an accused for trial. The gist of the view taken in these cases is that a Magistrate cannot direct reinvestigation and cannot suo motu direct further investigation.

38. However, having given our considered thought to the principles stated in these judgments, we are of the view that the Magistrate before whom a report under Section 173(2) of the Code is filed, is empowered in law to direct "further investigation" and require the police to submit a further or a supplementary report. A three-Judge Bench of this Court in Bhagwant Singh has, in no uncertain terms, stated that principle, as aforenoticed.

39. The contrary view taken by the Court in Reeta Nag and Randhir Singh do not consider the view of this Court expressed in Bhagwant Singh. The decision of the Court in Bhagwant Singh in regard to the issue in hand cannot be termed as an obiter. The ambit and scope of the power of a Magistrate in terms of Section 173 of the Code was squarely debated before that Court and the three-Judge Bench concluded as aforenoticed. Similar views having been taken by different Benches of this Court while following Bhagwant Singh, are thus squarely in line with the doctrine of precedent. To some extent, the view expressed in Reeta Nag, Ram Naresh and Randhir Singh, besides being different on facts, would have to be examined in light of the principle of stare decisis."

By referring various judgments, the Apex Court subsequent to

Peter's case, concluded s follows:

"Whether the Magistrate should direct "further investigation" or not is again a matter which will depend upon the facts of a given case. The learned Magistrate or the higher court of competent jurisdiction would direct "further investigation" or "reinvestigation" as the case may be, on the facts of a given case. Where the Magistrate can only direct further investigation, the courts of higher jurisdiction can direct further, reinvestigation or even investigation de novo depending on the facts of a given case. It will be the specific order of the court that would determine the nature of investigation."

21. We respectfully concur with the said view. As we have already indicated, the learned Chief Judicial Magistrate has basically directed for further investigation. The said part of the order cannot be found fault with, but an eloquent one, he could not have directed another investigating agency to investigate as that would not be within the sphere of further investigation and, in any case, he does not have the jurisdiction to direct reinvestigation by another agency. Therefore, that part of the order deserves to be lancinated and accordingly it is directed that the investigating agency that had investigated shall carry on the further investigation and such 53 MSM,J WP Nos.14229 & 14265 of 2020

investigation shall be supervised by the concerned Superintendent of Police.

The view expressed by the Apex Court in Chandra Babu alias

Moses v. State (referred supra) is somewhat contrary to the law

declared by the Apex Court in Peter case referred above. But, the

judgment in Chandra Babu alias Moses v. State (referred supra) is

later in point of time and there is no reference about the judgment in

State of A.P. v. A.S. Peter (referred supra) in the latter judgment. In

any view of the matter, it is relevant to refer certain provisions of

Police Act at this stage, since the powers of different police authorities

are prescribed under the Act.

According to Section 5 of Andhra Pradesh (Andhra Area)

District Police Act, 1859, the administration of the Police throughout

the General Police District shall be vested in an officer to be styled as

the Director General for the Andhra area of the state of Andhra

Pradesh and on such superior Police officers as to the state

government shall deem fit.

Similarly, Section 6 of the Andhra Pradesh Andhra Area

District Police Act, 1859, deals with the powers of police. According to

it, all Powers not inconsistent with the provisions of this Act which up

to the passing of this Act belonged by law to the existing police

authorities appointed under this Act provided always that no police

authorities appointed shall process or exercise any judicial or revenue

authority.

The word "superior police' is also defined under Section 1 of the

Andhra Pradesh Andhra Area District Police Act, 1859, which is

substituted by A.P Act No.12 of 1989 w.e.f 10.05.1989 and it is as

follows:

54 MSM,J WP Nos.14229 & 14265 of 2020

"The expression superior police shall mean the director of the police inspector General of Police, Commissioner of Police, District Superintendent of Police, Deputy Commissioner of Police, Assistant Commissioner of Police, Assistant Superintendent of Police and Deputy Superintendent of Police."

The expression "subordinate police" is defined as under:

"the expression subordinate police shall mean all police officers of and below the rank of an inspector."

Thus, the Additional Director General of Police, C.I.D, A.P falls

under the definition of 'superior police officer' but belonging to a

different Investigating Agency of the State. Therefore, an officer of a

different Investigating Agency cannot be said to be Superior Police

Officer to exercise power of further investigation under the guise of

Section 173(8) Cr.P.C. In State of A.P. v. A.S. Peter (referred supra),

the Apex Court did not advert to the definitions of 'superior police

officer' under Andhra Pradesh (Andhra Area) District Police Act, 1859,

and 'officer-in-charge of the police station' under Section 2(o) of

Cr.P.C and also the duties of C.I.D Police enumerated under Chapter

44 of AP Police Manual, but, simply concluded that the Additional

Director General of Police, C.I.D is a superior officer in rank.

The Apex Court in catena of perspective pronouncements

discussed the powers of superior officer of police, including further

investigation, exercising power under Section 173(8) Cr.P.C.

The Apex Court in Samaj Parivartan Samudaya & Ors. v.

State of Karnataka21, observed as follows:

"17. The machinery of criminal investigation is set into motion by the registration of a First Information Report (FIR), by the specified police officer of a jurisdictional police station or otherwise. The CBI, in terms of its manual has adopted a procedure of conducting limited pre- investigation inquiry as 21 2012 AIR SCW 3323 55 MSM,J WP Nos.14229 & 14265 of 2020

well. In both the cases, the registration of the FIR is essential. A police investigation may start with the registration of the FIR while in other cases (CBI, etc.), an inquiry may lead to the registration of an FIR and thereafter regular investigation may begin in accordance with the provisions of the CrPC. Section 154 of the CrPC places an obligation upon the authorities to register the FIR of the information received, relating to commission of a cognizable offence, whether such information is received orally or in writing by the officer in- charge of a police station. A police officer is authorised to investigate such cases without order of a Magistrate, though, in terms of Section 156(3) Cr.P.C. the Magistrate empowered under Section 190 may direct the registration of a case and order the police authorities to conduct investigation, in accordance with the provisions of the CrPC. Such an order of the Magistrate under Section 156(3) CrPC is in the nature of a pre-emptory reminder or intimation to police, to exercise their plenary power of investigation under that Section. This would result in a police report under Section 173, whereafter the Magistrate may or may not take cognizance of the offence and proceed under Chapter XVI CrPC. The Magistrate has judicial discretion, upon receipt of a complaint to take cognizance directly under Section 200 CrPC, or to adopt the above procedure.

[Ref Gopal Das Sindhi & Ors. v. State of Assam &Anr22]; Mohd. Yusuf v. Smt. Afaq Jahan &Anr23; and Mona Panwar v. High Court of Judicature of Allahabad Through its Registrar & Ors24].

20. Thus, the CrPC leaves clear scope for conducting of further inquiry and filing of a supplementary charge sheet, if necessary, with such additional facts and evidence as may be collected by the investigating officer in terms of Sub- sections (2) to (6) of Section 173 CrPC to the Court."

The Apex Court discussed similar issue in Vinay Tyagi v.

Irshad Ali alias Deepak and others (referred supra) and it is as

follows:

"21. Referring to the provisions of Section 173 of the Code, the Court observed that the police has the power to conduct further investigation in terms of Section 173(8) of the Code but also opined that even the Trial Court can direct further investigation in contradistinction to fresh investigation, even where the report has been filed. It will be useful to refer to the following paragraphs of the judgment wherein the Court while referring to the case of Mithabhai Pashabhai Patel v. State of Gujarat25 held as under:

"13. It is, however, beyond any cavil that 'further investigation' and 'reinvestigation' stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely, under Articles 226 and 32 22 AIR 1961 SC 986 23 AIR 2006 SC 705 24 AIR 2011 SC 529 25 2009 AIR SCW 3780 56 MSM,J WP Nos.14229 & 14265 of 2020

of the Constitution of India could direct a 'State' to get an offence investigated and/or further investigated by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior court would ordinarily issue such a direction. Pasayat, J. in Ramachandran v. R. Udhayakumar, (AIR 2008 SC 3102) opined as under:

'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.' A distinction, therefore, exists between a reinvestigation and further investigation.

xxx xxx xxx

15. The investigating agency and/or a court exercise their jurisdiction conferred on them only in terms of the provisions of the Code. The courts subordinate to the High Court even do not have any inherent power under Section 482 of the Code of Criminal Procedure or otherwise. The precognizance jurisdiction to remand vested in the subordinate courts, therefore, must be exercised within the four corners of the Code."

Whether further investigation is permissible, the same also to

be thrashed out by the Magistrate/Court of competent jurisdiction in

terms of Section 173(8) CrPC. Re-investigation is unknown to law.

This issue has been discussed in a series of judgments by the Apex

Court.

The Apex Court in State of Bihar and another v. J.A.C.

Saldanna (referred supra), held that power of the police to investigate

into a cognizable offence is ordinarily not to be interfered with and

observed as follows:

"19. The power of the Magistrate under Section 156(3) to direct farther investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out hereinbefore. The power conferred upon the Magistrate under Section 156(3) can be exercised by the Magistrate even after submission of a report by the investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the investigating officer and direct further investigation. This provision does not in any way affect the power of the investigating officer to further investigate the case even after submission of the report as provided in Section 173(8). Therefore, the High Court was in error in holding that the State Government in exercise of the power of superintendence under S. 3 of the Act lacked the power to direct further investigation into the case. In 57 MSM,J WP Nos.14229 & 14265 of 2020

reaching this conclusion we have kept out of consideration the provision contained in Section 156(2) that an investigation by an officer-in-charge of a police station, which expression includes police officer superior in rank to such officer, cannot be questioned on the ground that such investigating officer had no jurisdiction to carry on the investigation; otherwise that provision would have been a short answer to the contention raised on behalf of respondent 1.

25. There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognisance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provision contained in Section 173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the Court, and to award adequate punishment according to law for the offence proved to the satisfaction of the Court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate. This has been recognised way back the King Emperor v. Khwaja Nazir Ahmad, (1944) 71 Ind App 203 at p. 213, where the Privy Council observed as under:

"In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the court's functions begin when a charge is preferred before it, and not until then.

26. This view of the Judicial Committee clearly demarcates the functions of the executive and the judiciary in the field of detection of crime and its subsequent trial and it would appear that the power of the police to investigate into a cognizable offence is ordinarily not to be interfered with by the judiciary"

58 MSM,J WP Nos.14229 & 14265 of 2020

The Apex Court in Ramachandran v. R. Udayakumar & Ors26,

and Reeta Nag v. State of West Bengal & Ors27, held that there can

be further investigation if required, but not fresh investigation or re-

investigation. It is apt to reproduce para 19 of the judgment in Reeta

Nag's case (supra) herein:

"19. What emerges from the above-mentioned decisions of this Court is that once a charge-sheet is filed under Section 173(2) Cr.P.C. and either charge is framed or the accused are discharged, the Magistrate may, on the basis of a protest petition, take cognizance of the offence complained of or on the application made by the investigating authorities permit further investigation under Section 173(8). The Magistrate cannot suo motu direct a further investigation under Section 173(8) Cr.P.C. or direct a re-investigation into a case on account of the bar of Section 167(2) of the Code."

The Apex Court in Samaj Parivartan Samudaya's case

(referred supra) held that further investigation is permissible,

however, re-investigation is prohibited. It is profitable to reproduce

para 18 of the judgment hereunder:

"18. Once the investigation is conducted in accordance with the provisions of the CrPC, a police officer is bound to file a report before the Court of competent jurisdiction, as contemplated under Section 173 CrPC, upon which the Magistrate can proceed to try the offence, if the same were triable by such Court or commit the case to the Court of Sessions. It is significant to note that the provisions of Section 173(8) CrPC open with non-obstante language that nothing in the provisions of Section 173(1) to 173(7) shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate. Thus, under Section 173(8), where charge-sheet has been filed, that Court also enjoys the jurisdiction to direct further investigation into the offence. {Ref., Hemant Dhasmana v. Central Bureau of Investigation & Anr., [Air 2001 SC 2721]. This power cannot have any inhibition including such requirement as being obliged to hear the accused before any such direction is made. It has been held in Shri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandha Maharaj v. State of Andhra Pradesh and Ors., (AIR 1999 SC 2332) that the casting of any such obligation on the Court would only result in encumbering the Court with the burden of searching for all potential accused to be afforded with the opportunity of being heard."

26 2008 AIR SCW 5469 27 2010 AIR SCW 476 59 MSM,J WP Nos.14229 & 14265 of 2020

In Vinay Tyagi's case (supra), the Apex Court had an occasion

to hold succinctly the distinction between reinvestigation, further

investigation and de novo investigation in various paragraphs.

In the case of a 'fresh investigation', 'reinvestigation' or 'de novo

investigation' there has to be a definite order of the court. The order

of the Court unambiguously should state as to whether the previous

investigation, for reasons to be recorded, is incapable of being acted

upon. Neither the Investigating agency nor the Magistrate has any

power to order or conduct 'fresh investigation'. This is primarily for

the reason that it would be opposed to the scheme of the Code. It is

essential that even an order of 'fresh '/'de novo' investigation passed

by the higher judiciary should always be coupled with a specific

direction as to the fate of the investigation already conducted. The

cases where such direction can be issued are few and far between.

This is based upon a fundamental principle of our criminal

jurisprudence which is that it is the right of a suspect or an accused

to have a just and fair investigation and trial. This principle flows

from the constitutional mandate contained in Articles 21 and 22 of

the Constitution of India. Where the investigation is ex facie unfair,

tainted, malafide and smacks of foul play, the courts would set aside

such an investigation and direct fresh or de novo investigation and, if

necessary, even by another independent investigating agency. As

already noticed, this is a power of wide plenitude and, therefore, has

to be exercised sparingly. The principle of rarest of rare cases would

squarely apply to such cases. Unless the unfairness of the

investigation is such that it pricks the judicial conscience of the

Court, the Court should be reluctant to interfere in such matters to 60 MSM,J WP Nos.14229 & 14265 of 2020

the extent of quashing an investigation and directing a 'fresh

investigation'.

In the case of Sidhartha Vashisht v. State (NCT of Delhi)28,

the Apex Court stated that it is not only the responsibility of the

investigating agency, but also that of the courts to ensure that

investigation is fair and does not in any way hamper the freedom of

an individual except in accordance with law. An equally enforceable

canon of the criminal law is that high responsibility lies upon the

investigating agency not to conduct an investigation in a tainted or

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 de hors his position and influence

in the society. The maxim contra veritatem lex nunquam aliquid

permittit applies to exercise of powers by the courts while granting

approval or declining to accept the report.

In Gudalure M.J. Cherian & Ors. v. Union of India & Ors29,

the Apex Court stated the principle that in cases where charge-sheets

have been filed after completion of investigation and request is made

belatedly to reopen the investigation, such investigation being

entrusted to a specialized agency would normally be declined by the

court of competent jurisdiction but nevertheless in a given situation

to do justice between the parties and to instil confidence in public

mind, it may become necessary to pass such orders. Further, in

R.S. Sodhi, Advocate v. State of U.P30, where allegations were made

against a police officer, the Court ordered the investigation to be

transferred to CBI with intent to maintain credibility of investigation,

public confidence and in the interest of justice. Ordinarily, the courts 28 (2010) 6 SCC 1 29 (1992) 1 SCC 397 30 (AIR 1994 SC 38) 61 MSM,J WP Nos.14229 & 14265 of 2020

would not exercise such jurisdiction but the expression 'ordinarily'

means normally and it is used where there can be an exception. It

means in the majority of cases but not invariably. 'Ordinarily'

excludes extraordinary or special circumstances. In other words, if

special circumstances exist, the court may exercise its jurisdiction to

direct 'fresh investigation' and even transfer cases to courts of higher

jurisdiction which may pass such directions.

Next question that comes up for consideration of this Court is

whether the empowered Magistrate has the jurisdiction to direct

'further investigation' or 'fresh investigation'. As far as the latter is

concerned, the law declared by the Apex Court consistently is that

the learned Magistrate has no jurisdiction to direct 'fresh' or 'de novo'

investigation. However, once the report is filed, the Magistrate has

jurisdiction to accept the report or reject the same right at the

threshold. Even after accepting the report, it has the jurisdiction to

discharge the accused or frame the charge and put him to trial. But,

there are no provisions in the Code which empower the Magistrate to

disturb the status of an accused pending investigation or when report

is, filed to wipe out the report and its effects in law.

In Minu Kumari & Anr. v. State of Bihar & Ors31, the Apex

Court explained the powers that are vested in a Magistrate upon filing

of a report in terms of Section 173(2)(i) and the kind of order that the

Court can pass. The Court held that when a report is filed before a

Magistrate, he may either (i) accept the report and take cognizance of

the offences and issue process; or (ii) may disagree with the report

and drop the proceedings; or (iii) may direct further investigation

under Section 156(3) and require the police to make a further report. 31

AIR 2006 SC 1937 62 MSM,J WP Nos.14229 & 14265 of 2020

This judgment, thus, clearly shows that the Court of Magistrate has a

clear power to direct further investigation when a report is filed under

Section 173(2) and may also exercise such powers with the aid of

Section 156(3) of the Code. The lurking doubt, if any, that remained

in giving wider interpretation to Section 173(8) was removed and

controversy put an end by the judgment of the Apex Court in the case

of Hemant Dhasmana v. C.B.I32 where the Court held that although

the said order does not, in specific terms, mention the power of the

court to order further investigation, the power of the police to conduct

further investigation envisaged therein can be triggered into motion at

the instance of the court. When any such order is passed by the

court, which has the jurisdiction to do so, then such order should not

even be interfered with in exercise of a higher court's revision

jurisdiction. Such orders would normally be of an advantage to

achieve the ends of justice. It was clarified, without ambiguity, that

the Magistrate, in exercise of powers under Section 173(8) of the Code

can direct the CBI to further investigate the case and collect further

evidence keeping in view the objections raised by the appellant to the

investigation and the new report to be submitted by the Investigating

Officer, would be governed by Sub-section (2) to Sub-section (6) of

Section 173 of the Code. There is no occasion for the Apex Court to

interpret Section 173(8) of the Code restrictively. After filing of the

final report, the learned Magistrate can also take cognizance on the

basis of the material placed on record by the investigating agency and

it is permissible for him to direct further investigation. Conduct of

proper and fair investigation is the hallmark of any criminal

investigation.

32

(2001) 7 SCC 536 63 MSM,J WP Nos.14229 & 14265 of 2020

Having analysed the provisions of the Code and the various

judgments as afore-indicated, the Apex Court came to the following

conclusions in regard to the powers of a Magistrate in terms of

Section 173(2) read with Section 173(8) and Section 156(3) of the

Code:

1. The Magistrate has no power to direct 'reinvestigation' or 'fresh investigation' (de novo) in the case initiated on the basis of a police report.

2. A Magistrate has the power to direct 'further investigation' after filing of a police report in terms of Section 173(6) of the Code.

3. The view expressed in (2) above is in conformity with the principle of law stated in Bhagwant Singh's case by a three Judge Bench and thus in conformity with the doctrine of precedence.

4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8).

5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the Court to the extent that even where the facts of the case and the ends of justice demand, the Court can still not direct the investigating agency to conduct further investigation which it could do on its own.

6. It has been a procedure of proprietary that the police has to seek permission of the Court to continue 'further investigation' and file supplementary charge-sheet. This approach has been approved by the Apex Court in a number of judgments. This, as such, would support the view that the Apex Court taken in the facts of the case.

64 MSM,J WP Nos.14229 & 14265 of 2020

The Apex Court also held that the superior courts have the

jurisdiction under Section 482 of the Code or even Article 226 of the

Constitution of India to direct 'further investigation', 'fresh' or

'de novo' and even 'reinvestigation'. 'Fresh', 'de novo', and

'reinvestigation' are synonymous expressions and their result in law

would be the same. The superior courts are even vested with the

power of transferring investigation from one agency to another,

provided the ends of justice so demand such action. Of course, it is

also a settled principle that this power has to be exercised by the

superior courts very sparingly and with great circumspection."

Thus, the Superior Courts are alone vested with the power to

transfer of investigation from one agency to another agency, as

discussed in Point No.1 and as admitted by Deputy Superintendent of

Police, C.I.D, Kurnool in his counter affidavit that C.I.D is an

independent Investigating Agency on par with Law & Order Police,

which is another independent Investigating Agency. When an

investigation was done by Law & Order Police, i.e. a separate

independent Investigating agency, further investigation has to be

undertaken by the same agency exercising power under Section

173(8) Cr.P.C. However, this will not create any fetter on the power of

the superior courts to exercise power for transfer of investigation from

one investigating agency to another investigating agency which are

independent. Thus, from the principle laid down in the above

judgments, the superior courts alone are vested with the power of

transferring of investigation from one agency to other, but not by

superior police officer like Director General of Police, A.P. 65 MSM,J WP Nos.14229 & 14265 of 2020

In K.V. Rajendran v. Superintendent of Police, C.I.D33, the

three Judge Bench held that transfer of investigation must be in rare

and exceptional cases to do complete justice between the parties and

to instil straight confidence in the public mind. This Court must

strive to ensure that search for the truth is undertaken by an

independent agency, not controlled by either of the two state

governments. Most importantly, the credibility of the investigation

and the investigating authority, must be protected.

In recent judgment of Apex Court in Rhea Chakraborty v.

State of Bihar34, the Supreme Court held that, the dissemination of

the real facts through unbiased investigation would certainly result in

justice for the innocents, who might be the target of vilification

campaign. Equally importantly, when integrity and credibility of the

investigation is discernible, the trust, faith and confidence of the

common man in the judicial process will resonate.

In Raj Pal Singh v. Central Bureau of Investigation35 the

Division Bench of Himachal Pradesh encountered the same situation

and concluded that, the superior courts are alone vested with the

power to transfer investigation from one investigating agency to other.

In view of the law discussed above, the Investigating Officer

who completed the investigation after filing charge sheet may

continue further investigation exercising power under Section 173 (8)

Cr.P.C, but not by any other officer belonging to a different agency,

taking advantage of Section 36 of Cr.P.C.

33 (2013) 12 SCC 480 34 Tr.Petition (Crl.) No.225 of 2020 dated 19.08.2020 35 CWP No. 2526 of 2015-C dated 30.05.2015 66 MSM,J WP Nos.14229 & 14265 of 2020

In Peter case (referred supra) the Apex Court did not advert to

the meaning of the word 'superior officer' under the Police Act and

powers of C.I.D under Chapter 44 of Andhra Pradesh Police Manual,

but passed an order as if the Additional Director General of Police,

C.I.D, A.P, is superior Police Officer. Hence, I am of the view that the

principle laid in the above judgment cannot be applied to the present

facts of the case, in view of the view expressed by the Apex Court in

the judgements referred above. Hence, I hold that Director General of

Police, A.P. and Additional Director General of Police, C.I.D, A.P, have

no authority to transfer further investigation after filing charge from

one independent investigating agency to another investigating agency.

Accordingly, the point is answered in favour of the petitioners and

against the respondents.

P O I N T No.4

As seen from the material on record, though crime

was registered, the investigating agency could not complete

investigation and file final report within the time fixed by the Code of

Criminal Procedure, as there is delay at different stages, more

particularly, in the investigation like committal and taking cognizance

by the Sessions Court, on account of abscondance of other accused

who are accused in Sessions Case No.100 of 2019. Though the

offence was committed in the year 2016, the sessions cases were

registered initially in the year 2018 and 2019. The grievance of the

respondents is that, a representation was made by the defacto

complainant, but, it was not known whether the representation was

made to the Director General of Police, A.P or Additional Director

General of Police, C.I.D, A.P. Anyhow, in the representation, the 67 MSM,J WP Nos.14229 & 14265 of 2020

defacto complainant made several allegations about perfunctory

investigation done by the previous Investigating Agency i.e. 'officer-in

charge of the police station' in Crime No. 73 of 2016 and it is also

alleged in the counter affidavit filed by Deputy Superintendent Of

Police, C.I.D, Kurnool, that several facts have to be unearthed by

conducting further investigation, including tracing the vehicle and

complicity of the three other persons who are Accused Nos. 7 to 10 as

they are the main culprits who are screened by the Investigating

Agency.

As per the allegations made in the counter affidavit filed by

Deputy Superintendent of Police, C.I.D, Kurnool, the defacto

complainant stated in the representation that, real culprits are

Accused Nos. 7 to 10 who cannot be allowed to sneak away from the

prosecution. Does it mean that the petitioners along with the other

accused who are facing the trial are not real culprits? If, that is the

case, let the prosecution be withdrawn against the present petitioners

and other accused facing trial and proceed against the persons who

are not arrayed as accused strictly adhering to the procedure. But,

without withdrawing the prosecution against these petitioners, the

State intended to proceed against these petitioners along with the

other accused and third parties, who are not real culprits, which is

impermissible under law in view of Section 319 Cr.P.C. The

contention of the Deputy Superintendent of Police, C.I.D, Kurnool,

itself creates any amount of suspicion in the prosecution case. In

fact, there is no basis for such conclusion and if, for any reason, the

Court is satisfied on the basis of evidence recorded by it, during trial,

may issue summons to additional accused who are not arrayed as

accused before the Court facing trial by exercising power under 68 MSM,J WP Nos.14229 & 14265 of 2020

Section 319 Cr.P.C. Instead of resorting to such permissible

procedure, to rope in the other three persons, further investigation is

started and entrusted the same to C.I.D, A.P./Additional Director

General of Police, C.I.D, A.P, for conducting further investigation.

As discussed above, further the investigation, if any,

undertaken must be supplementary to the primary report/

preliminary report filed under Section 173 (2) to (6) Cr.P.C and not for

any other purpose. Hence, to find out the complicity of the other

three persons who are arrayed has Accused Nos. 7 to 10, the Deputy

Superintendent Of Police, C.I.D, Kurnool, cannot be permitted to

conduct further investigation in terms of Section 173 (8) Cr.P.C and

such power can be exercised for issuing summons to any other third

person other than the accused facing trial before the Court, under

Section 319 Cr.P.C is the Sessions Court only. Therefore,

investigation undertaken by the Additional Director General of Police,

C.I.D, A.P, entrusting the same to Deputy Superintendent of Police,

C.I.D, Kurnool, is only to investigate into the complicity of the

persons other than the accused/ petitioners herein not pertaining to

preliminary report filed under Section 173 (2) Cr.P.C, such further

investigation to decide the involvement of other three persons under

Section 173 (8) Cr.P.C is impermissible. Moreover, such power is

vested only on the Sessions Court under Section 319 Cr.P.C.

On account of the investigation taken up in the name of further

investigation, there is every possibility of causing delay in trial of the

accused for various offences with which they are charged. Speedy

trial is the fundamental right of the accused and it is a part of

Article 21 of the Constitution of India.

69 MSM,J WP Nos.14229 & 14265 of 2020

Learned Senior Counsel for the petitioners Sri P. Veera Reddy

and Sri Vedula Venkataramana contended that, on account of further

investigation substantial delay will be caused in disposal of sessions

cases pending and it violates the fundamental right guaranteed to the

petitioners under Article 21 of the Constitution of India.

In support of their contention, learned counsel for the

petitioners placed reliance on the judgment of Apex Court in Pooja

Pal v. Union of India36 which speaks of the fundamental right

under Article 21 of the Constitution in the context of the goal of

"speedy trial" being tempered by "fair trial", wherein the Apex Court

held as follows:

"A "speedy trial", albeit the essence of the fundamental right to life entrenched in Article 21 of the Constitution of India has a companion in concept in "fair trial", both being inalienable constituents of an adjudicative process, to culminate in a judicial decision by a court of law as the final arbiter. There is indeed a qualitative difference between right to speedy trial and fair trial so much so that denial of the former by itself would not be prejudicial to the accused, when pitted against the imperative of fair trial. As fundamentally, justice not only has to be done but also must appear to have been done, the residuary jurisdiction of a court to direct further investigation or reinvestigation by any impartial agency, probe by the State Police notwithstanding, has to be essentially invoked if the statutory agency already in charge of the investigation appears to have been ineffective or is presumed or inferred to be not being able to discharge its functions fairly, meaningfully and fructuously. As the cause of justice has to reign supreme, a court of law cannot reduce itself to be a resigned and a helpless spectator and with the foreseen consequences apparently unjust, in the face of a faulty investigation, meekly complete the formalities to record a foregone conclusion. Justice then would become a casualty. Though a court's satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of the charge-sheet ipso facto or the pendency of the trial can by no means be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analysed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete out justice to the parties. The prime concern and the endeavour of the court of law is to secure justice on the basis of true facts which ought to be unearthed through a committed, resolved and a competent investigating agency.

A trial encompasses investigation, inquiry, trial, appeal and retrial i.e. the entire range of scrutiny including crime detection and adjudication on the basis thereof. Jurisprudentially, the guarantee under Article 21 embraces both the life and liberty of the accused

36 (2016) 3 SCC 135

70 MSM,J WP Nos.14229 & 14265 of 2020

as well as interest of the victim, his near and dear ones as well as of the community at large and therefore, cannot be alienated from each other with levity. It is judicially acknowledged that fair trial includes fair investigation as envisaged by Articles 20 and 21 of the Constitution of India. Though well-demarcated contours of crime detection and adjudication do exist, if the investigation is neither effective nor purposeful nor objective nor fair, it would be the solemn obligation of the courts, if considered necessary, to order further investigation or reinvestigation as the case may be, to discover the truth so as to prevent miscarriage of the justice. No inflexible guidelines or hard-and-fast rules as such can be prescribed by way of uniform and universal invocation and the decision is to be conditioned to the attendant facts and circumstances, motivated dominantly by the predication of advancement of the cause of justice."

In Vinubhai Haribhai Malaviya & Ors. Vs. State of Gujrat &

Anr (referred supra), the Full Bench of the Apex Court held as

follows:

"15. What is interesting to note is that the narrow view of some of the High Courts had placed a hindrance in the way of the investigating agency, which can be very unfair to the prosecution as well as the accused.

16. Article 21 of the Constitution of India makes it clear that the procedure in criminal trials must, after the seminal decision in Mrs. Maneka Gandhi v. Union of India & Anr. (1978) 1 SCC 248, be "right, just and fair and not arbitrary, fanciful or oppressive" (see paragraph 7 therein). Equally, in Commissioner of Police, Delhi v. Registrar, Delhi High Court, New Delhi (1996) 6 SCC 323, it was stated that Article 21 enshrines and guarantees the precious right of life and personal liberty to a person which can only be deprived on following the procedure established by law in a fair trial which assures the safety of the accused. The assurance of a fair trial is stated to be the first imperative of the dispensation of justice (see paragraph 16 therein).

17. It is clear that a fair trial must kick off only after an investigation is itself fair and just. The ultimate aim of all investigation and inquiry, whether by the police or by the Magistrate, is to ensure that those who have actually committed a crime are correctly booked, and those who have not are not arraigned to stand trial. That this is the minimal procedural requirement that is the fundamental requirement of Article 21 of the Constitution of India cannot be doubted. It is the hovering omnipresence of Article 21 over the CrPC that must needs inform the interpretation of all the provisions of the CrPC, so as to ensure that Article 21 is followed both in letter and in spirit."

Undoubtedly, the law declared by the Apex Court in the

judgments referred supra, made it clear that, speedy trial is a part of

fundamental right guaranteed under Article 226 of the Constitution

of India.

71 MSM,J WP Nos.14229 & 14265 of 2020

At the same time, the Apex Court in Hussainara Khatoon v.

State of Bihar37 held that, that speedy trial is an essential ingredient

of 'reasonable just and fair' procedure guaranteed by Article 21 and it

is the constitutional obligation of the state to set-up such a procedure

as would ensure speedy trial to the accused. The state cannot avoid

its constitutional obligation by pleading financial or administrative

inadequacy. As the guardian of the fundamental rights of the people,

it is constitutional obligation of this court to issue necessary

directions to the State for taking positive action to achieve this

constitutional mandate.

In Motilal Saraf v. State of Jammu and Kashmir38, the

Supreme Court explained the meaning and relevance of speedy trial

and held that the concept of speedy trial is an integral part of Article

21 of the Constitution. The right to speedy trial begins with actual

restraint imposed by arrest and consequent incarceration, and

continues at all stages so that any possible prejudice that may result

from impressible and avoidable delay from the time of commission of

the offence till its final disposal, can be prevented.

The purpose of administration of justice is that the innocent

must be protected, the guilty must be punished and there must be

satisfactory resolution of disputes. The right to speedy trial is

recognized as a common law right flowing from the Magna Carta in

the UK, US, Canada and New Zealand, though this view is not

accepted in Australia. Many international conventions have also

approved of the importance of the right to speedy trial. Article 14 of

the International Convention on Civil and Political Rights, 1966, and 37 1980 SCC (1) 81 38 2006 Cri.L.J.4765 72 MSM,J WP Nos.14229 & 14265 of 2020

Article 3 of the European Convention on Human Rights, 1950, speak

for this right. There is a need to enact laws providing for the right to

speedy justice in civil matters. Delay in justice denotes the time

consumed in the disposal of a case, that is in excess of the time

within which it can reasonably be expected to be decided by the

Court. Difficulties arise when the actual time taken for disposal of a

case far exceeds its expected life span. This amounts to a delay in

dispensation of justice. Factual data shows that despite consistent

effort, the gap between the expected and actual life span of cases is

widening. The chief reason for delays is that the judge-population

ratio is low in India. Other reasons include case adjournments

granted by courts on flimsy grounds. Therefore, speedy trial is a

hallmark of criminal jurisprudence and in the event of failure to

render speedy justice, that may lead to serious consequences of

violation of fundamental right under Article 21 of the Constitution of

India and Human Rights guaranteed to the Citizenry of India.

In Bell v. D P P39, the Privy Council held that where a

conviction is set aside on appeal and a retrial is ordered, any

unreasonable delay in commencing the retrial would be treated as a

violation of Article 20 of the Constitution and that in determining the

unreasonableness of delay, the Court would adopt a more stringent

standard in the case of a retrial than in the case of initial

prosecution. Since the right to trial within a reasonable time follows

from the wider concept of 'due process' which means that an

incarcerated person should not be left to languish without any proper

determination of the criminal proceeding against him, owing to an

unreasonable delay on the part of the State machinery. Under some

39 (1985) 2 All ER 585 73 MSM,J WP Nos.14229 & 14265 of 2020

Constitutions which do not explicitly guarantee a right to trial within

a reasonable time, such right has been deduced from the

comprehensive guarantee of 'Due process'. The principle is that when

a person convicted by a court is kept in prison in excess of the

sentence awarded by the court it would no longer be justified by law. In India, the right to speedy trial has been deduced from the concept

of procedural 'fairness' which has been held to be inherent in Article

21 of the Constitution, and has been extended to pre-trial stages,

including investigation as well as trial proceedings, including

subsequent proceedings up to execution of the sentence, including

delay in disposal of accused's mercy petition (vide State of Punjab v.

Babu40). The Court issued directions for speedy trial of criminal cases

in Rajdeo Sharma v. State of Bihar41. However, further

clarifications were made to promote justice and effective

implementation of the directions in Rajdeo Sharma v. State of Bihar

(referred supra).

In view of the law, to avoid unreasonable delay by ordering

further investigation without any reasonable cause is violative of

Article 21 of the Constitution of India. In the present case, further

investigation to be conducted is only to decide the complicity of the

persons who are not arrayed as accused before this Court i.e. the

three persons who are shown as Accused Nos. 7 to 10 in the counter

filed by Deputy Superintendent of Police, C.I.D, Kurnool, based on

certain allegations made by the defacto complainant. Investigating

Agency did not file any report against the other three persons

proposed to be arrayed as accused as there was no material.

Moreover, the defacto complainant maintained silence for all these 40 (1991) 3 SCC 18 41 (1988) SC 3281 74 MSM,J WP Nos.14229 & 14265 of 2020

four years and suddenly lodged representation now. It is not known

to whom the representation was submitted. However, that is the basis

for the present situation. As discussed above, further investigation is

only in connection with the report filed under Section 173 (2) to (6)

Cr.P.C and Section 173 (8) Cr.P.C which permits filing of further

report/reports and it must pertain to report but not for adding

additional accused. The only course open to the Investigating Agency

to add additional accused and try them before the Sessions Court is

to follow the procedure contemplated under Section 319 Cr.P.C. But,

circumventing the procedure provided under Code of Criminal

Procedure, the Director General of Police entrusted further

investigation to Additional Director General of Police, C.I.D, A.P to

investigate into the complicity of the persons who are not arrayed

before this Court which is unsustainable under law even by

exercising power under Section 173(8) Cr.P.C.

As discussed above, since the delay in disposal of S.C.No.96 of

2018 and S.C.No.100 of 2019 would tend to violate fundamental

rights of these petitioners guaranteed under Article 21 of the

Constitution of India, on this ground, order cannot be set-aside, since

minimum relaxation can be given to meet the ends of justice, taking

into consideration of various circumstances to decide what is

reasonable time to decide sessions cases pending before the Court.

On the ground that, it is violative of fundamental rights guaranteed

under Article 21 of the Constitution of India, proceedings cannot be

set-aside. Accordingly, the point is answered.

75 MSM,J WP Nos.14229 & 14265 of 2020

In view of my foregoing discussion, the conclusions are

summed up as follows:

1. The C.I.D headed by Additional Director General of Police,

C.I.D., A.P is a separate independent investigating agency of

the state.

2. The Additional Director General of Police, C.I.D, A.P, is

incompetent to address letter dated 30.06.2020 to the Director

General of Police, C.I.D, A.P, for transfer of Investigation in

Crime No. 73 of 2016 of Ramapuram Police Station to C.I.D,

Andhra Pradesh, suo moto to take up further investigation.

3. Though the Additional Director General of Police, C.I.D., A.P, is

an 'officer in-charge of the police station' for the entire state, he

is not a superior officer of the Law & Order Police to conduct

investigation or supervise investigation in terms of Section 36

Cr.P.C.

4. The order passed by the Director General of Police, A.P on the

request made by Additional Director General of Police, C.I.D.,

A.P, is bereft of any reasons, since, the order passed or the

proceedings issued, must disclose the reasons for such

entrustment of investigation.

In view of my conclusions summed up above, writ petitions are

allowed, declaring the action of Director General of Police, A.P. and

Additional Director General of Police, C.I.D, A.P, as arbitrary and

illegal, set-aside the Proceedings issued by the Director General of

Police in Rc.No.2224/C-2/2020 dated 13.07.2020 transferring the

investigation in Crime No.73 of 2016 to Additional Director General of

Police, C.I.D, A.P and also the consequential proceedings issued by 76 MSM,J WP Nos.14229 & 14265 of 2020

Additional Director General of Police, C.I.D, A.P in

C.No.4628/C32/C.I.D/2020 dated 15.07.2020, directing Deputy

Superintendent of Police, C.I.D, Kurnool, to conduct further

investigation. No order as to costs.

Consequently, miscellaneous applications pending if any, shall

stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated:29.09.2020

SP