IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction)

[3310]

TUESDAY ,THE EIGHTEENTH DAY OF JUNE TWO THOUSAND AND TWENTY FOUR

PRESENT

THE HONOURABLE DR JUSTICE K MANMADHA RAO

WRIT PETITION NO: 32962 OF 2016

Between:

V.N.Chandrasekhara Reddy and Others ...PETITIONER(S)

AND

The State Of Andhra Pradesh and Others ...RESPONDENT(S)

Counsel for the Petitioner(S):

1.PARTY-IN-PERSON

Counsel for the Respondent(S):

1.GP FOR HOME (AP)

2.SRINIVAS POLAVARAPU

The Court made the following:

ORDER :

This petition is filed under Article 226 of the Constitution of India for the following relief:-

"to issue an order direction or writ more particularly one in the nature of Writ of Mandamus, declaring the action of the 4 th respondent issuing the Notice under Section 41-A of Cr.P.C is illegal, arbitrary and violative of principles of natural justice and contrary to the report filed by the 3rd respondent vide Lr.No.C.No. C1/3303/112/2016, dated 19.08.2016 before the Hon'ble Human Rights Commission. Consequently direct the 1st respondent to entrust the investigation in FIR Nos. 43 and 44 of 2016 to any other independent investigating agency and pass such other order or orders**…**…."

2. The precise case of the petitioners is that the 3rd respondent is practicing Advocate and he filed several cases on behalf of farmers vide W.P.Nos. 9634 of 2016 and batch against the Handri Niva Sujala Sravanthi Project, Kuppam Branch Canal and some other cases against the Government and obtained interim orders therein. Due to which, local political leaders are developed bore grudge against him and they influenced some persons to give false complaints against the petitioners and their family members. Therefore, basing on a complaint of the respondents 5 and 6, a case in Crime No. 43 and 44 of 2016 have been registered by the 4th respondent against the petitioners 1 and 3. Earlier the petitioners and unofficial respondents have civil disputes and civil cases are being pending before the trial courts in respect of landed property. Though, the 3rd respondent submitted a report to the 2nd respondent that the dispute between the petitioner and unofficial respondents is purely civil in nature and pertaining to the revenue department regarding changing of records belongs to the lands of the petitioner. But the 4th respondent issued notice under Section 41-A of Cr.P.C to the petitioners on 14.09.2016. The petitioners have also given reply to the 4th respondent on 17.09.2016. Earlier also a case in Crime No. 52 of 2012 have been filed by Smt. Kalyani against the petitioner and his father and after due enquiry, the same was referred as false. The 4th respondent started harassing the petitioners at the instance of local political leaders, which is highly illegal and arbitrary. Hence, inaction of the 4th respondent is questioned in this writ petition and requested to allow the writ petition.

3. Heard Mr. V.N.Chandrasekhar Reddy, 1st petitioner/ Party-in-Person for the petitioners; Mr. V.S.S.Pavaki, learned Assistant Government Pleader, Home for the respondents 1 to 4 and Mr. Srinivas Polavarapu, learned counsel for the respondents 5 and 6.

4. During hearing, the 1st petitioner reiterated the contents urged in the writ affidavit and placed on record the decision of the Hon'ble Apex Court in "Babubhai v. State of Gujarat and Others" ¹ , wherein Hon'ble Division Bench held as follows:-

"36. In Manu Sharma v. State (NCT of Delhi) ² , one of us (Hon'ble P. Sathasivam, J.) has elaborately dealt with the requirement of fair investigation observing as under: (SCC pp.79-81, paras 197, 1999-201)

"197.......The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent ill proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is excepted to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. These are the fundamental cannons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India.

....

199. It is not only the responsibility of the investigating agency but as well as that of the courts to ensure that investigation is fair and does not in any way

¹ (2010) 12 SCC 254

² (2010) 6 SCC 1 2010) 2 SCC (Cri)1385

hamper the freedom of an individual except in accordance with law. Equally enforceable canon of the criminal law is that the high responsibility lies upon the investigating agency not to conduct an investigation in tainted and unfair manner. The investigation should not prima facie be indicative of a biased mind and every effort should be made to bring the guilt to law as nobody stands above law dehors his position and influence in the society.

200. ....the court is not to accept the report which is contra legem but (sic) to conduct judicious and fair investigation....

201.....The investigation should be conducted in a manner so as to draw a just balance between citizen's right under Articles 19 and 21 and expansive power of the police to make investigation."

5. Per contra, 4 th respondent filed counter-affidavit denying all material averments made in the writ affidavit and mainly contended that basing on a complaint of the 5th respondent registered a case in Crime No.43 of 2016, dated 16.05.2016 under Section 323, 506, 354 read with 34 IPC by the 4th respondent against the petitioners herein. Similarly basing on a complaint of the 6th respondent, the 4th respondent registered a case in Crime No.44 of 2016 under Section 341, 506 read with 34 IPC against the petitioners 1 and 3 herein. Both the crimes are being under investigation. The petitioners are not arrested, since they are absconded. The 4th respondent has got nothing to do with the civil disputes between the petitioners and respondents 4 and 5. During the course of investigation the investigating officer has issued notice under Section 41-A of Cr.P.C to the petitioners in both the crimes to appear before them on 25.09.2016 for the purpose of investigation. Instead of appearing, the petitioners filed this writ petition with false and baseless allegations. Hence, requested to dismiss the writ petition.

6. Per contra, the 6th respondent filed counter-affidavit and mainly contended that the offences committed by the petitioners have no link with the civil litigation pending before the civil courts. The 3rd petitioner, who is an Advocate is creating the litigation and making false allegations against the respondents 5 and 6 by misusing his position. It is further contended that the petitioners 1 and 3 executed an Agreement of Sale, dated 26.02.2004 agreeing to sell the land in an extent of Ac. 0.55 cents in favour of one Mr. VNSK Kumar, brother of the 6th respondent and put him in possession of the property after receiving the total consideration. The names of the purchasers were also mutated in revenue records. However, petitioners 1 and 3 postponed the execution of regular sale deed. Therefore, a suit was filed vide O.S.No.94 of 2014 on the file of the Court of Junior Civil Judge, Kuppam for specific performance of agreement of sale and for permanent injunction against the petitioners. Whatever disputes which are pending before the Civil Court and the Revenue Court will be decided on merits and the petitioners cannot link the same to the contents contained in the FIR Nos. 43 and 44 of 2016. The petitioners 1 to 3 have suppressed the fact that they have already taken loan from the Bank by mortgaging the land prior to the execution of agreement of sale and played fraud on the respondents 5 and 6. Therefore, if the facts contained in the complaints filed by the respondents 5 and 6 discloses any cognizable offence, the police will investigate into the same and they will take necessary action. Therefore, the petitioners cannot challenge the notices issued under Section 41-A of the Cr.P.C. The petitioners instead of co-operating with the investigating agency, obtained interim order in this writ petition, virtually prevented the police from conducting the investigation. Therefore, the writ petition is liable to be dismissed.

7. Perused the record.

8. Upon perusal of the writ affidavit and counter-affidavits filed by the parties would show that there are civil disputes between the petitioners and unofficial respondents with regard to land and civil cases are being pending before the trial courts. Further, series of allegations levelled between the petitioner and unofficial respondents in this matter vis-a-vis.

9. A perusal of the FIR No. 43 of 2016 would show that the petitioners went to the 5th respondent, while she cleaning the vacant place for construction of shed, objected and abused her in a filthy language and pelted stones on the sheets and torned her cloths and outraged the modest of married women with criminal intimidation. So also, as per FIR No.44 of 2016 is concerned, the petitioners were wrongfully restrained the 6th respondent with criminal intimidation, while he was proceeding towards his village and picked quarrel in a filthy language and threatened him with dire consequences by stating that if he cannot withdrawn the civil case, the petitioners will see his end. Basing on the reports, the present crimes came to be registered by the 4 th respondent and took up investigation and issued impugned notice under Section 41-A of Cr.P.C and also the 2nd respondent addressed a letter to the A.P.State Human Rights Commission, dated 19.08.2016, wherein it was mentioned that there was a dispute with regard to house site between 5th respondent and 2nd petitioner a criminal cases registered against 2nd petitioner and her family members by the 4th respondent for their attack on 5th respondent and the case is under investigation.

10. The petitioners have made an application before the trial court in Crl.M.P.No.637 of 2017 in Crime No.43 of 2016 seeking relief for conducting Lie Detector Test to the petitioners and as well as the respondents for free and fair investigation in the matter, but the same was returned by the trial court on 17.04.2017. Learned Assistant Government Pleader, Home vehemently argued that the petitioners are having an opportunity to cross examine the witnesses when they are examined before the trial court. The defence can mark any number of the differed statements on their behalf in the evidence of prosecution witnesses. After scrutinize the truth in the evidence in comparing with the Section 161 Cr.P.C statements, the trial court will come to conclusion and pass appropriate judgment in the case. Therefore, no lie detector test is required in this case and that returned the application by the trial court.

11. It is observed that the petitioners instead of co-operating with the investigating agency with regard to above crimes, they approached this Court without just and sufficient cause. Assuming for a moment that, if the petitioners have any grievance, they can agitate the same in appropriate time before the competent fora, but the petitioners instead of co-operating with the investigating agency, they approached this Court at the basic stage is not proper. Further, the allegations made in the criminal complaint cannot be compared with civil disputes. If really came to light that the matter is purely civil in nature, the respondents/ police must have to follow the due procedure and refer the same as civil in-nature. But, as could be seen from the FIRs, no such instances of civil in-nature are reflected. In such circumstances, questioning the action of the respondents in issuing the notice under Section 41-A of Cr.P.C is unwarranted at this juncture. Hence, it is needless to entrust the matter to some other agency in the scope of this nature as claimed by the petitioners. Therefore, the decision relied by the petitioners is not applicable in the light of the facts and circumstances of this case.

12. Therefore, this court is inclined to dispose of the writ petition, while directing the petitioners to co-operate with the investigation agency, so as to see that the investigation be completed in two crimes, within two (02) months from the date of receipt of a copy of this order. Till then the respondents/ police shall not arrest the petitioners, except following due process of law. The interim order granted earlier shall stands vacated. It is made clear that the respondents/ police shall take steps to file final report within specified period without any deviation and follow the procedure strictly in accordance with law.

13. With the above direction, this Writ Petition is disposed of. There shall be no order as to costs. The miscellaneous applications pending, if any, shall also stand closed.