Andhra Pradesh High Court - Amravati
G.Venkata Satya Subramanya Raju, ... vs State Of Ap., Rep Pp And Anr., on 21 December, 2019
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
IN THE HIGH COURT OF ANDHRA PRADESH: AT AMARAVATI
*****
Criminal Petition No.14289 of 2014
Between
Gadiraju Venkata Satya Subramanya Raju,
S/o. Viswanadha Raju, Aged 43 years,
Occ: Business, R/o D.No.1-233, Royalam,
Bhimavaram Mandal, West Godavari District;
and 9 others
... Petitioners/Accused 1 to 10
and
1. The State of A.P., Rep. by Public Prosecutor,
High Court of A.P., Hyderabad
... Respondent/State
2. The Sub Inspector of Police, Bhimavaram I Town P.S.,
West Godavari District
... Respondent/De facto Complainant
DATE OF JUDGMENT PRONOUNCED: 22-10-2019
HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
1 Whether Reporters of Local Yes/No
newspapers may be allowed to see
the Judgments?
2 Whether the copies of judgment Yes/No
may be marked to Law
Reports/Journals
3 Whether Their Ladyship/Lordship Yes/No
wish to see the fair copy of the
Judgment?
2
CMR, J.
crlp_14289_2014 * HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY + Criminal Petition No.14289 of 2014 % 22-10-2019 # Gadiraju Venkata Satya Subramanya Raju, S/o. Viswanadha Raju, Aged 43 years, Occ: Business, R/o D.No.1-233, Royalam, Bhimavaram Mandal, West Godavari District; and 9 others ... Petitioners/Accused 1 to 10 Vs. $ 1. The State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad ... Respondent/State
2. The Sub Inspector of Police, Bhimavaram I Town P.S., West Godavari District ... Respondent/De facto Complainant ! Counsel for the Petitioners: Sri K.V.L. Narasimha Rao Counsel for Respondent No.1: Public Prosecutor Counsel for Respondent No.2: ---
< Gist:
> Head Note:
? Cases referred:
1. AIR 2018 SC 3853
2. AIR 1979 SC 898
3. 1992 Supp (1) SCC 335
4. 2001 (1) ALT (Cri) 275 3 CMR, J.
crlp_14289_2014 HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY Criminal Petition No.14289 of 2014 Order:
This petition under Section 482 of Cr.P.C is filed by the petitioners seeking quash of the proceedings against them in C.C.No.901 of 2014 on the file of the II Additional Judicial Magistrate of First Class, Bhimavaram.
2. Concise statement of facts, as per prosecution version, germane to dispose of this petition may be stated as follows:
(a) On 26-7-2014, at about 01.00 p.m., the petitioners, who are the men of Yuvajana Sramika Rythu Congress Party (YSRCP), gathered at Prakasam Chowk, Bhimavaram, followed by several other people with a view to provoke the general public and raised slogans protesting against Sri N.Chandra Babu Naidu, the Hon'ble Chief Minister of State of Andhra Pradesh (hereinafter will be referred as Chief Minister). They have conducted a Mock Praja Court on the public road. Accused No.7 acted as a Judge, accused No.8 acted as an Advocate on behalf of accused 9 and 10 who are projected as a farmer and dwacra woman and they have placed the effigy of the Hon'ble Chief Minister before the said Mock Court as an accused alleging that the Chief Minister failed to waive the crop loans of farmers and loans of dwacra women.
Accused No.7 who acted as a Judge imposed capital punishment of hanging to the effigy of the Chief Minister. Accused 1 to 6, 9 and 10 hanged the said effigy to a nearby tree in the public place and burnt the said effigy and thereby provoked the general public and insulted the dignity of the Chief Minister and defamed the 4 CMR, J.
crlp_14289_2014 Chief Minister and they also caused obstruction of free flow of traffic.
(b) After receiving information, the Sub Inspector of Police, I Town Police Station, Bhimavaram, went to Prakasam Chowk, Bhimavaram along with his staff and cleared the traffic and prepared a special report to that effect. On return to the police station, the Sub Inspector of Police registered the said special report as an FIR in Crime No.133/2014 for the offences punishable under Sections 341, 500, 153 and 504 read with Section 34 IPC of I Town Police Station, Bhimavaram and investigated the case.
(c) During the course of investigation, the Sub Inspector of Police recorded the statements of L.Ws.1 to 4 and prepared a rough sketch of the scene of offence. He also served notice under Section 41-A(1) Cr.P.C on the accused and the accused submitted a reply to the said notice denying the allegations made against them and asserted that they can prove their innocence if the case is referred to the Court of law.
(d) Therefore, after completion of investigation, as it is found that the petitioners have with a common intention committed the offence of wrongful restraint, defamation and intentional insult to Hon'ble Chief Minister of Andhra Pradesh and provoked breach of peace which are punishable under Sections 341, 500 and 504 read with Section 34 IPC, the Sub Inspector of Police, I Town Police Station, Bhimavaram, who investigated the case laid the charge-sheet against the accused.
5
CMR, J.
crlp_14289_2014
3. Heard Sri K.V.L. Narasimha Rao, learned counsel for the petitioners and the learned Public Prosecutor for the 1st respondent/State.
4. Learned counsel for the petitioners vehemently contended that even if the allegations made against the petitioners in the case are taken to be true at their face value, no offences whatsoever under Sections 341, 500 and 504 IPC are made out. He would submit that there is no complaint from any general public or from any person that the petitioners have wrongfully restrained any person and as such no offence is made out under Section 341 IPC. He contends that as it is said that the accused have defamed the Hon'ble Chief Minister, no report was given by the Chief Minister alleging that he was defamed by the accused and as such no offence under Section 500 IPC is also made out. He submits that the procedure contemplated under law to prosecute the accused for the offence of defamation under Section 500 IPC in the facts of the case is contravened by the prosecution. He further submits that even the ingredients contemplated under Section 504 IPC to prove that the petitioners have intentionally insulted any person and thereby gave provocation to him to break public peace or to commit any other offence are also not made out from the facts of the case and as such no offence under Section 504 IPC is also constituted on the facts of the case. Therefore, he submits that the prosecution of the petitioners for the aforesaid offences under Sections 341, 500 and 504 IPC is purely abuse of process of law and thereby prayed to quash the proceedings against the petitioners in C.C.No.901 of 6 CMR, J.
crlp_14289_2014 2014 on the file of the II Additional Judicial Magistrate of First Class, Bhimavaram. Finally, the learned counsel for the petitioners contends that the Sub Inspector of Police who reached the scene of offence and prepared special report and who registered the said special report as a crime in this case, he being informant of the crime cannot investigate the case and as such the investigation in this case made by him is vitiated. In support of his contention, he placed reliance on the judgment of the Apex Court in Mohan Lal v. State of Punjab1.
5. Per contra, the learned Public Prosecutor submits that the facts of the case clearly show that the accused have conducted a Mock Court on the public road during day time at about 01.00 p.m. and as such the free flow of traffic is obstructed causing inconvenience to the people. So a clear offence under Section 341 IPC is made out. He then submits that as the effigy of the Hon'ble Chief Minister was hanged to a tree by imposing capital punishment to him on the ground that he did not fulfill the promise given to the people at the time of election would clearly constitute an offence punishable under Section 500 IPC and the said facts amount to defaming the reputation of the Hon'ble Chief Minister. He would also contend that the facts of the case also make out a case under Section 501 IPC. As regards the contention of the learned counsel for the petitioners that the Sub Inspector of Police being informant of the crime cannot be an Investigating Officer, he contends that there is no legal 1 AIR 2018 SC 3853 7 CMR, J.
crlp_14289_2014 prohibition for the Sub Inspector of Police being informant and Investigating Officer and thereby prayed to dismiss the petition.
6. Since the principal contention of the petitioners in this petition is that even if the facts of the case are taken to be true at their face value that no offence whatsoever under Sections 341, 500 and 504 IPC are made out and no such offences are constituted in the facts and circumstances of the case, I have meticulously gone through the contents of the FIR and also the statements of the witnesses recorded by the Investigating Officer during the course of investigation. In order to appreciate the said contention that no such offences are made out in the facts and circumstances of the case, although the facts of the case are detailed in extenso while narrating the factual matrix of this case at the outset, I deem it apposite to recapitulate the relevant facts of the case to find out whether any such offences are constituted in the facts and circumstances of the case or not.
7. Precisely it is the case of the prosecution that the petitioners, who are the men of YSR Congress Party along with others have discussed with each other at length and they gathered at Prakasam Chowk, Bhimavaram at about 01.00 p.m. on 26-7-2014 with a view to provoke the general public and they raised slogans against the Hon'ble Chief Minister of Andhra Pradesh and they all conducted a Mock Court. Accused No.7 acted as a Judge, accused No.8 acted as an Advocate on behalf of accused 9 and 10 who acted as a farmer and dwacra woman and they all placed the effigy of the Hon'ble Chief Minister before the Mock Court as an accused alleging that the Chief Minister failed 8 CMR, J.
crlp_14289_2014 to cancel the crop loans of the farmers and the loans of dwacra women and thereby imposed capital punishment of hanging to the effigy of the Chief Minister and they all hanged the said effigy to the nearby tree in public place and burnt it and thereby provoked the general public, insulted the dignity of the Chief Minister and defamed him and caused obstruction of free flow of traffic.
8. Now it is to be ascertained from the above facts as to whether any such offences under Sections 341, 500 and 504 IPC are made out or not.
9. As regards Section 341 IPC is concerned, it relates to punishment for the offence of wrongful restraint of any person and the punishment prescribed is simple imprisonment for a term which may extend to one month or with fine which may extend to Rs.500/- or with both. However, the offence of wrongful restraint is defined in Section 339 IPC. Section 339 IPC reads thus:
"339. Wrongful restraint: Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
Exception:- The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this Section."
10. A careful perusal of the above Section 339 IPC which defines the offence of wrongful restraint makes it clear that only when the accused voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed is said to have wrongfully restrained that person. As can be seen from the facts of the case which are detailed supra, there is absolutely no allegation either in the FIR 9 CMR, J.
crlp_14289_2014 or in the statements of the witnesses L.Ws.1 to 4 recorded during the course of investigation that they were restrained by the petitioners voluntarily so as to prevent them from proceeding in any direction in which they have right to proceed. A perusal of the statements of witnesses recorded during the course of investigation show that three of them are doing petty businesses at the scene of offence and they only stated that the petitioners herein have conducted a Mock Court with the effigy of the Hon'ble Chief Minister protesting that he did not fulfill the promise given to the people at the time of election and failed to cancel the crop loans of the farmers and the loans of dwacra women and thereafter they have gutted the effigy in fire after hanging it to a tree. They have not stated that they were restrained by the petitioners or that the petitioners have restrained any member of the public from proceeding in any direction in which they have right to proceed. Therefore, even as per the evidence collected by the Investigating Officer in this case which is placed on record, there is absolutely no material to hold that the petitioners herein have voluntarily obstructed any person to prevent him from proceeding in any direction in which he has a right to proceed so as to hold that they have committed an offence of wrongful restraint of any person as contemplated under Section 339 IPC which is punishable under Section 341 IPC. Therefore, no offence punishable under Section 341 IPC is made out in this case on the basis of the facts and circumstances of the case.
11. Apropos the offence under Section 500 IPC is concerned, Section 500 IPC deals with punishment for the offence of 10 CMR, J.
crlp_14289_2014 defamation and Section 499 IPC defines defamation. It reads thus:
"499. Defamation: Whoever, by words, either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.
Explanation 1: It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2: It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3: An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4: No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful."
12. A perusal of the above definition of defamation under Section 499 IPC makes it manifest that it is only when a person, by words, either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm the reputation of such person, is said, except in the cases excepted thereunder, to defame that person. However, it is to be noted that since the case of the prosecution is that the petitioners have defamed Sri N.Chandra Babu Naidu when he was the Hon'ble Chief 11 CMR, J.
crlp_14289_2014 Minister of the State of Andhra Pradesh as on the date of offence i.e. on 26-7-2014, the Court cannot take cognizance of an offence punishable under Section 500 IPC except upon a complaint made by the person aggrieved by the offence. It is expedient to extract Section 199 Cr.P.C which bars taking cognizance of an offence punishable under Section 500 IPC by the Court without a complaint made by the aggrieved person or by the Public Prosecutor with the permission of the Government and it reads thus:
"199. Prosecution for defamation.--(1) No Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:
Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf.
(2) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (45 of 1860) is alleged to have been committed against a person who, at the time of such commission, is the President of India, the Vice-President of India, the Governor of a State, the Administrator of a Union Territory or a Minister of the Union or of a State or of a Union Territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions a Court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor.
(3) Every complaint referred to in sub-section (2) shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably 12 CMR, J.
crlp_14289_2014 sufficient to give notice to the accused of the offence alleged to have been committed by him.
(4) No complaint under sub-section (2) shall be made by the Public Prosecutor except with the previous sanction--
(a) of the State Government, in the case of a person who is or has been the Governor of that State or a Minister of that Government;
(b) of the State Government, in the case of any other public servant employed in connection with the affairs of the State;
(c) of the Central Government, in any other case. (5) No Court of Session shall take cognizance of an offence under sub-section (2) unless the complaint is made within six months from the date on which the offence is alleged to have been committed.
(6) Nothing in this section shall affect the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate having jurisdiction or the power of such Magistrate to take cognizance of the offence upon such complaint."
13. As can be seen from the above Section, two situations are covered by it. One relates to filing of the complaint by an aggrieved person whose reputation has been damaged and was defamed and the other relates to filing complaint by the Public Prosecutor when the offence of defamation is committed against a public servant or any of the other authorities mentioned in the Section. Clause (1) of Section 199 Cr.P.C read with Clause (6) of Section 199 Cr.P.C deals with the first situation. A conjoint reading of Clause (1) of Section 199 Cr.P.C and Clause (6) of Section 199 Cr.P.C shows that the aggrieved person shall file a complaint before the concerned Magistrate having jurisdiction. 13
CMR, J.
crlp_14289_2014 The other situation is covered by Clause (2) of Section 199 Cr.P.C which deals with filing of complaint when the alleged offence of defamation has been committed against a person who at the time of such commission is the President of India, the Vice-President of India, the Governor of a State, the Administrator of a Union Territory or a Minister of the Union or of a State or of a Union Territory, or any other public servant employed in connection with the affairs of the Union or of a State. It also speaks of the competent Court viz., Sessions Court which can take cognizance of the said complaint without committal which is to be filed by the Public Prosecutor after obtaining sanction from the concerned Government.
14. Therefore, it is manifest from the aforesaid Section that there is an embargo placed on the Court to take cognizance of the case punishable under Section 500 IPC stating that except upon a complaint made by the person aggrieved, no Court can take cognizance of the case under Section 500 IPC. In the instant case, since it is the case of the prosecution that the accused have defamed Sri N.Chandra Babu Naidu, Hon'ble Chief Minister and caused damage to his reputation by their acts, he is the aggrieved person and he has to file a complaint before the concerned Magistrate having jurisdiction and the Court is empowered to take cognizance of the case only upon his complaint being the aggrieved person. Admittedly, no such complaint was filed before the Court by the aggrieved person. So the Court cannot take cognizance of the final report/charge-sheet filed by the Police for the offence punishable under Section 500 IPC without there being 14 CMR, J.
crlp_14289_2014 any complaint by the aggrieved person as contemplated under Clause (1) of Section 199 Cr.P.C.
15. Even otherwise, as the offence is alleged to have been committed against a person who at the time of such commission is the Chief Minister of the State of Andhra Pradesh, who can be termed as a public servant, in respect of his conduct in the discharge of his public functions, the competent Court as per Clause (2) of Section 199 Cr.P.C is the Sessions Court which can take cognizance of such an offence without the case being committed to it and that too upon a complaint in writing made by the Public Prosecutor after obtaining sanction from the State Government.
16. It is settled law that Chief Minister is a public servant as defined under Section 21 IPC. The Supreme Court in the case of M.Karunanidhi v. Union of India2 held that the Chief Minister is a public servant. Therefore, as the offence of defamation punishable under Section 500 IPC is alleged to have been committed against the Chief Minister who is a public servant in discharge of his official duties, the Court of II Additional Judicial Magistrate of First Class, Bhimavaram, is not competent to take cognizance of the said case and that too without there being any complaint in writing made by the Public Prosecutor. Even under Clause (4) of Section 199 Cr.P.C., the Public Prosecutor also with the previous sanction of the State Government has to file the said complaint. Clause (5) of Section 199 Cr.P.C prescribes the period 2 AIR 1979 SC 898 15 CMR, J.
crlp_14289_2014 of limitation of six months for the Sessions Court to take cognizance of an offence.
17. Therefore, a careful examination of the above Section shows that if the person defamed is a public servant or a Minister or any authority mentioned in Clause (2) of Section 199 Cr.P.C., then the complaint has to be made by the Public Prosecutor with the sanction of the State Government and the said complaint is to be filed in a Court of Sessions and it is the Court of Sessions which is competent to take cognizance of the said case within the prescribed period of limitation. Although Clause (6) of Section 199 Cr.P.C empowers the person aggrieved also to file a complaint in the Court of Judicial Magistrate of First Class having jurisdiction, the said Magistrate has to take cognizance of the said case only on a complaint made by the aggrieved person. In the instant case, the said procedure is not followed. In utter violation of the procedure prescribed under Section 199 Cr.P.C., the prosecution was launched in this case by way of filing charge-sheet by the Police. As already noticed, no complaint is made by Sri N.Chandra Babu Naidu, the Chief Minister, as an aggrieved person in the Court of II Additional Judicial Magistrate of First Class, Bhimavaram, having jurisdiction to try the said offence and no complaint was also made by the Public Prosecutor with the previous sanction of the Government alleging that the petitioners have defamed the reputation of the Chief Minister of the State by their acts. So viewed from any angle, taking cognizance of this final report/charge-sheet filed by the Police, by the II Additional Judicial Magistrate of First Class, Bhimavaram, is not valid and 16 CMR, J.
crlp_14289_2014 it is legally unsustainable. The procedure prescribed under Section 199 Cr.P.C is totally contravened. No Court can take cognizance of the case in contravention of the procedure prescribed under Section 199 Cr.P.C. So the present final report/ charge-sheet is vitiated on that legal ground and cannot be sustained.
18. Lastly, as regards the offence under Section 504 IPC is concerned, the Section reads as follows:
"504. Intentional insult with intent to provoke breach of the peace: Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
19. From a reading of Section 504 IPC, it is clear that the essential ingredients of the offence are as under:
(1) That the accused insulted some person.
(2) That he did so intentionally.
(3) That he thereby gave provocation to that person.
(4) That he intended, or knew that it was likely that such provocation would cause that person to break the peace or to commit any other offence.
20. Therefore, it again relates to intentional insult given to any person by the accused and thereby provocating him with an intention that such provocation would cause him to break the public peace or to commit any offence. As can be seen from the facts of the case, no person has given any report that an insult was given to him by the accused and thereby provoked him with 17 CMR, J.
crlp_14289_2014 an intention to make him break the public peace or to commit any offence. Here also, a report is to be given by some person alleging that the accused has insulted him and thereby provoked him as mentioned in the above Section. There is no such material emanating from the record to show any such offence against any person was committed by the accused. If it is the version of the prosecution that the accused insulted the Hon'ble Chief Minister and thereby provoked him to break the public peace or to commit any offence, the report must be from the said person. No other witness whose statements are recorded stated that the accused insulted them and thereby provoked them to break the public peace or to commit any other offence. Therefore, no offence under Section 504 IPC is also made out from the facts of the case.
21. The Apex Court in the case of State of Haryana v. Bhajan Lal3, prescribed certain guidelines for quashing of the FIR. In view of the first guideline which says that where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not, prima facie, constitute any offence or make out a case against the accused, the FIR is to be quashed.
22. Therefore, in view of the above legal position, the present proceedings pursuant to the charge-sheet filed in this case are liable to be quashed.
23. It is the case of the petitioners that the prosecution case suffers from another legal infirmity. The learned counsel for the petitioners vehemently contended that the Sub Inspector of Police 3 1992 Supp (1) SCC 335 18 CMR, J.
crlp_14289_2014 being the informant of the crime cannot investigate this case. He contends that as the Sub Inspector of Police prepared the special report and registered the FIR on the basis of the said special report, he being the informant cannot conduct investigation in this case and file charge-sheet. Therefore, he submits the said investigation is legally not valid. I find considerable force and merit in the said submission. The material on record discloses that it is a fact that the Sub Inspector of Police, I Town Police Station, Bhimavaram, reached the scene of offence on the information received by him and he prepared a special report and thereafter went to the police station and registered the said special report as an FIR and he investigated the case and filed the charge- sheet. In the 3-Judge Bench judgment of the Apex Court in the case of Mohan Lal v. State of Punjab, the Supreme Court held:
"Fair investigation is foundation of fair trial and requires informant and Investigating Officer not to be same persons especially in laws carrying reverse burden of proof and when informant and Investigating Officer is same person, investigation is said to be vitiated."
24. This Mohan Lal case arises out of Narcotic Drugs and Psychotropic Substances Act, 1985, which contains a provision of reverse burden of proof placed on the accused. After considering the earlier precedents rendered on the point by the Apex Court and also by various High Courts in the country where divergent views are expressed, the 3-Judge Bench ultimately settled the law and authoritatively held as follows:
"In view of the conflicting opinions expressed by different two Judge Benches of this Court, the importance of a fair investigation from the point of view of an accused as a guaranteed constitutional right under Article 21 of the 19 CMR, J.
crlp_14289_2014 Constitution of India, it is considered necessary that the law in this regard be laid down with certainty. To leave the matter for being determined on the individual facts of a case, may not only lead to a possible abuse of powers, but more importantly will leave the police, the accused, the lawyer and the courts in a state of uncertainty and confusion which has to be avoided. It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof."
25. This Court in the case of P.P., H.C. of A.P. v. Mohd. Mansoor4, after elaborately dealing with the scheme of the Code of Criminal Procedure, 1973 with reference to all relevant Sections in it and after considering the earlier judgments rendered on the point held at paragraph No.28 as follows:
"For the foregoing reasons with due respect, I am unable to persuade myself to call the investigating officer as a complainant in the event of a crime being registered on the report sent by him or on a proceeding recorded by him during the course of his investigation in respect of a cognizable case. Therefore, the conclusion of the learned Metropolitan Sessions Judge that the said inspector is the de facto complainant and he could not have carried the investigation, per se, is out of context and totally not applicable in view of the peculiar facts of this case and the legal position as discussed supra."
26. However, in view of the latest 3-Judge Bench judgment of the Apex Court in Mohan Lal's case wherein it is authoritatively held that a fair investigation, which is but the very foundation of a fair trial, necessarily postulates that the informant and the investigator must not be the same person and justice must not only be done, but must appear to be done also and any 4 2001 (1) ALT (Cri) 275 20 CMR, J.
crlp_14289_2014 possibility of bias or a predetermined conclusion has to be excluded and thereby settled the law and set at naught the controversy stating that when the informant is the police officer that he cannot be the investigating officer and if any investigation is conducted by him it will be vitiated, the point is held affirmatively in favour of the petitioners holding that the investigation done by the investigating officer in this case who registered the said crime on the basis of the special report prepared by him is vitiated. So even in that score also, the present proceedings in C.C.No.901 of 2014 are liable to be quashed. Thus the prosecution case bristles with several fatal legal infirmities in this case which cuts the case of the prosecution at its roots.
27. Ergo, the criminal petition is allowed. The proceedings in C.C.No.901 of 2014 on the file of the II Additional Judicial Magistrate of First Class, Bhimavaram, against the petitioners are hereby quashed. Pending applications, if any, shall stand closed.
_________________________________________ CHEEKATI MANAVENDRANATH ROY, J.
22nd October, 2019.
Ak 21 CMR, J.
crlp_14289_2014 HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY Criminal Petition No.14289 of 2014 22nd October, 2019.
(Ak)