Andhra HC (Pre-Telangana)
Ascend Technologies Ltd. vs Principal Secretary, Home, Govt. Of ... on 17 February, 2004
Equivalent citations: 2004(1)ALD(CRI)492, 2004(4)ALT449
ORDER V.V.S. Rao, J.
CASE OF PETITIONER:
1. The petitioner is a company registered under the Companies Act having its registered office at Hyderabad. It deals with software products known as Student Performance Evaluation and Counselling Software (SPECS). The programme is said to be popular and being used more than three hundred Schools. The petitioner came in contact with Dr. S. Sujendra Prakash of Bangalore who partly developed the Software known as OBTYS for imparting memory training to school children. As he could not market, he gave the software to petitioner with a "source code". Petitioner developed on visual basic platform. OBTYS is executable programme with voice and video interaction and as per market survey, it has market of Rs. 125 crores globally. Petitioner approached M/s. Madhusudhan Reddy and Mr. Dhruv Chowdary of M/s. Burgandy Tradings, New Delhi to be international dealers. They were given the source code to develop a system of different voice and video interaction. An agreement was entered into to the same effect, but M/s. Burgandy represented by its Chief Executive Officer and Anr. cancelled the agreement and misappropriated the source code to have wrongful gain.
2. The petitioner lodged a private complaint under Section 200 of Code of Criminal Procedure, 1973 (Cr.P.C.) against five accused persons including two officers of Delhi based Multinational M/s. Burgandy Tradings. The complaint was filed praying the learned Magistrate to punish the accused under Sections 408, 420, 506 and Section 121-B of Indian Penal Code (IPC) and Section 63 of Copyright Act. Petitioner also prayed the Criminal Court to refer the same to Central Crime Station (CCS) of Hyderabad City Police as the offence of cheating is in relation to intellectual property rights in software development. The learned Magistrate referred the complaint under Section 156(3) of Cr.P.C. to Police Station .(P.S.) Chikkadpally giving liberty to petitioner to approach higher official for referring to CCS Branch of City Police. The P.S. Chikkadpally registered the crime being Cr. No. 58 of 2003 against all the accused and later handed over to CCS.
3. The Investigating Officers (IOs) of CCS, examined officers of the petitioner company as well as documents produced by the company. Accused Nos. 2 and 3 were arrested in Bangalore and necessary material was seized from them. The concerned Magistrate Courts released A-2 and A-3 on bail when they were produced with a direction that A-2 and A-3 should stay in Hyderabad and report to the Investigating Agency at CCS daily. The CCS could not however arrest A-1, A-4 and A-5 who allegedly evaded arrest. When the investigation was in progress by lOs of CCS, Crime Branch, Criminal Investigation Department (CBCID) took over the case on 22-4-2003 by taking away the file from the office of Additional Public Prosecutor, Nampally. Petitioner is aggrieved by the transfer of the case to CBCID.
4. In a lengthy affidavit accompanying writ petition running two thirty five pages, additional affidavit and reply affidavit running into another fifteen pages, petitioner elaborates his grievance by such action of entrustment of case to CBCID. To say the least, three affidavits filed by petitioner before this Court are argumentative with full of rhetoric with more chaff than grain. In its anxiety to be more emphatic regarding its perceived or alleged injustice, petitioner brought on record irrelevant averments and excluding these unnecessary averments, the grievance of petitioner in brief can be stated as under.
5. After CBCID took over the case, no IO is investigating the case. The fourth accused who is a Senior Officer of fifth accused is freely moving in Hyderabad. A-4 also threatened A-3 for giving information to lOs of CCS. A-4 has even deleted crucial e-mails from the e-mail box of A-3 and also tried to interfere with investigation. He started pressurizing Managing Director of petitioner company to withdraw the complaint by pressing into service bigwigs of Hyderabad. A-4 and A-5 threatened officers of petitioner company that they approached the Chief Minister of State and through him procured blessings of Director General of Police (DGP), Additional Deputy Inspector General of CID. Petitioner got issued three legal notices to DGP, Additional DIG, CID, Home Secretary and to Commissioner of Police bringing to their notice about the accused who was allegedly speaking of influence, proximity and control over senior officers and heads of State Government departments. The respondent did not give any reply. Petitioner came to know that on 16-3-2003, the Principal Secretary to Chief Minister addressed Commissioner of Police requesting for a detailed report in the case between Burgandi Infotecn and petitioner company. Therefore, petitioner contends that at the behest of Chief Minister, the case has been transferred from CCS to CBCID, so as to submit a report to the learned Magistrate in favour of accused. Petitioner also finds fault with the office of Hon'ble Chief Minister addressing Commissioner of Police to know about stage of the case.
6. The petitioner arrayed Principal Secretary, Home Department, Additional Director General of Police, CBCID, Commissioner of Police, Basheerbagh, Mr. P. Ramulu, I.P.S., Chairman of A.P. Public Service Commission (APPSC) and former Director General of Police, Government of A.P. and Sri N. Chandrababu Naidu, Hon'ble Chief Minister of Andhra Pradesh as respondents. The registry of this Court raised objections inter alia as to how writ petition is maintainable making Chief Minister in his personal capacity and Chairman of APPSC can be made party respondents, when the matter relates to Home Department. Petitioner gave explanation for the office objections. However, the matter was listed before the Court "for orders on the office note" as to maintainability of writ petition against the Chief Minister in his personal capacity and former DGP in his personal capacity. Hon'ble Justice Ms. G. Rohini by order dated 14-11 -2003 directed to strike off the names of respondents 4 and 5 from the array of respondents. Thereafter, office registered the case and listed before this Court for preliminary hearing.
CASE OF RESPONDENTS
7. At the stage of preliminary hearing itself, the second respondent filed a counter-affidavit. Therefore the matter was heard at length on 2-12-2003, 3-12-2003, 5-12-2003, 10-12-2003, 16-12-2003, 23-12-2003 and 29-12-2003. Second respondent opposed writ petition denying various averments made in the affidavit accompanying writ petition. It is stated that on a representation made by Arun Sawhney of M/s. Burgandy Infotech (P) Limited, New Delhi, the then Director General of Police ordered for transfer of Crime No. 58 of 2003 from CCS to CBCID. The second respondent issued memo dated 9-5-2003 to take over file for investigation. Accordingly the Deputy Superintendent of Police (DSP), CID, took up the case and conducted investigation in a fair and impartial manner. Petitioner filed a private complaint before the Court of XVII Metropolitan Magistrate and also requested the same Court to refer the matter to CCS. The Court observed that petitioner may make representation to the higher officers to refer the matter to CCS. Thus, the Court negatived the request of petitioner to refer the matter to CCS. Petitioner has no choice to seek a direction that the case hasto be investigated by a particular investigating agency. It is the duty of the Police to register the case and basing on the subject matter of the case, the nature and complexity of the case, the case will be entrusted to a particular person or agency by the competent authority for investigation. During the course of investigation, a notice was served on the petitioner under Section 160 of Cr.P.C. directing to appear for examination. However, the same could not be served due to non-availability of petitioner. Unless the petitioner co-operates with investigation, the same cannot be completed.
8. It is further stated that the investigation extended to Bangalore in Karnataka and New Delhi as well as other parts of country to scrutinize the voluminous records. Therefore the matter was entrusted to DSP. CBCID has not shown any anxiety to take over the case. The investigation is in progress and if the petitioner has any grievance, it is always open to it to file objections after filing charge sheet/final report under Section 173 of Cr.P.C. The writ petition is filed on presumptions and assumptions. Director General of Police is the competent authority to transfer the case from CCS to CBCID. The transfer of Crime No. 58 of 2003 is legal and perfectly in accordance with law. The DSP never pressurized the petitioner to come to his office to settle the matter with accused nor the officers of petitioners were harassed.
9. In its reply affidavit, petitioner states as follows. After receiving representation from the accused, A-4 and A-5 or any one claiming on their behalf, the least the then DGP could have done is to call for remarks from CCS or from the Commissioner of Police by forwarding representation to petitioner. The accused has no locus in the investigation unless and until it can be made out or pleaded that there was some bias or harassment in the investigation against them. Then only they can seek transfer of the case. The representation is vague and therefore DGP could not have transferred the case from CCS to CBCID. The representation is a sham and means to enable pre-determined transfer to CBCID. Therefore the action of DGP is neither legal, nor lawful. Arun Sawhney has been boasting of his proximate and close interaction with the Hon'ble Chief Minister and that because of his closeness, he got the investigation transferred to CBCID. There were no circumstances warranting transfer of the case. The case was transferred at the instance of Hon'ble Chief Minister to favour A-4 and A-5 in the case. DGP acted mala fide and without jurisdiction. He acted mechanically under dictation.
SUBMISSIONS OF RIVAL COUNSEL
10. The learned counsel for petitioner submits that after taking over the case by CBCID, there is no progress in the investigation. A-4 and A-5 are not arrested though their application for anticipatory bail was rejected. Petitioner company was threatened by A-4 and A-5 and in spite of receiving three legal notices, respondents have not taken any action. Therefore, according to the learned counsel, police are trying to close the case as it is a civil dispute. On the main question, the learned counsel would submit that the case is not such a great matter requiring take over by CBCID. CID has not given any information to petitioner before taking over the case. Petitioner being complainant is very much interested in the case, from the stage of registration till its culmination in Criminal Court. The take over of case by CID from CCS amounts to wilful interference in the investigation. The case was registered as a private complaint and therefore any investigation ordered by the learned Magistrate under Section 156(3) of Cr.P.C. cannot be subject to whims and fancies of executive. The investigation was transferred by DGP to CBCID after A-5 approached Chief Minister's office. The complainant therefore genuinely apprehends that investigation would not be impartial. Lastly, it is submitted that the subject of the case is of technical nature. Therefore, the investigation agency like CCS which has a special cell for white collar offences is best suited to investigate the case. The learned counsel also relies on the decisions of Supreme Court in Bhagwat Singh v. Commissioner of Police , Union of India v. W.N. Chadha 1993 Suppl. (4) SCC 260, Sharma v. State of Jammu and Kashmir 1992 Suppl. (2) SCC 222, Rampal v. State of Maharashtra 1994 Suppl. (2) SCC 73, Chhotu Ram v. Urvashi Gulati , State of A.P. v. Goverdhanlal Pitti 2003 (3) ALD 32 (SC) (Full Reports) = 2003 (6) AlT 19.1 (DN SC).
11. The learned Government Pleader for Home Department contends that the complainant can only set criminal action into motion. He cannot have any right to suggest as to how the case should be handled and by which agency. When a private complaint is made, the learned Magistrate competent to take cognizance of the case can only order investigation under Section 156(3) Cr.P.C. and the learned Magistrate also cannot direct a particular agency to investigate the case. Petitioner, from the inception of the case, wanted the case to be referred to CCS, the learned Magistrate gave liberty to petitioner to request to higher authorities. When the investigation is in progress by CCS, Arun Sawhney made representation to DGP and having regard to the representation and complexity involved in the investigation and the case, which relates to Computer Software, DGP transferred the case to CBCID. Government, as head of police, have inherent rights to transfer the case to any agency and that there was no interference by the Chief Minister and when a representation to Chief Minister's office was received, the report was called for from the office of Commissioner.
12. The core question that falls for consideration is whether the orders of DGP transferring Crime No. 58 of 2003 from CCS to CBCID is valid and whether the same is vitiated by bias or illegality and due to alleged interference by the office of Chief Minister.
13. Before taking the point for consideration, this Court may mention that though the learned counsel cited large number of decisions, these decisions deal with general principles as to right of the complainant in the criminal case to pursue the case, the necessity for executive action to be bona fide and unbiased. The learned counsel for petitioner has not cited any direct judgment on the point as to the power of DGP to transfer the case from one agency to another.
CRIMINAL PROSECUTION - ROLE OF STATE GOVERNMENT
14. It is basic principle of constitutional law that among three organs of the State namely, Legislature, Executive and Judiciary, it is the executive which is assigned the prerogative of piloting legislature and enforcing the laws made by the Legislature. In the scheme of Constitution of India, law and order, police, prisons etc., are the subjects included in List-II of VII Schedule of the Constitution. Entry 11-A of List III of VII Schedule of the Constitution deals with administration of justice and constitution and organization of all courts. Therefore the State has legislative powers with regard to administration of justice, constitution of courts, organization and management of police etc. The executive power of the State as per Article 162 of the Constitution shall extend to the matters with respect to which the legislature of the State has power to make laws. It is the political executive which is entrusted with the power of administering the institutions which may or may not be governed or regulated by legislation. Indeed even in regard to appointment of Judges, the courts at grass root level under Chapter VI of Part-VI of the Constitution (Articles 233 to 237) power is conferred on the State executive though control over subordinate courts is absolutely vests in the High Court.
15. Be it under A.P. Civil Courts Act, or Code of Criminal Procedure, 1973 (Cr.P.C.), the power to establish various courts and power to appoint with consultation of High Court vests in the State Government i.e., State Executive. Not only that power to create courts, but also the power to confer powers on courts, appoint public prosecutors to Criminal Courts, to make rules/ subordinate legislation inheres the State executive. Even in the matters of granting remission, reprieve, pardon vests in the State under Article 161 of the Constitution of India as well as Sections 432, 433-A of Cr.P.C. Thus, it would be no exaggeration to say that State executive has all pervasive control over the entire system of administration of criminal justice and institutions and organizations and agencies which are entrusted with one or other jobs of administration of justice.
16. 'Police' is an institution and organization entrusted since ages to ensure law and order and smooth functioning of the society. The power to declare any place for Police Station vests in the State Government. The enforcement of various Police Acts viz., Hyderabad City Police Act, 1348 Fasli, A.P. (Andhra Area) District police Act, 1859 Fasli and A.P. (Telangana Area) District Police Act, 1239 Fasli etc., is the duty of the State. The appointment of Police Chief i.e., Director General and Inspector General of Police and other officers to assist him in the administration, management and organization of police vests with the State.
17. In the Westminster model, which India has adopted state governance is taken care of by a Cabinet of Ministers headed by the Chief Minister. The Cabinet has a collective responsibility. Though for the purpose of convenient and smooth functioning of Government, specific duties are assigned to Ministers in charge of different portfolios under the business rules of the Government promulgated by the Governor under Article 166 of the Constitution of India, every decision taken by every Minister will be ultimately the decision of the cabinet and decision of the Government. Therefore, the Chief Minister being head of the Government (Governor is the head of the State), no exception can be taken if the Chief Minister of the State monitors or supervises the functioning of various ministries under the control of Ministers incharge of particular portfolio. Therefore, the submission that Chief Minister cannot interfere in the functioning of Police or one of its agencies is stated to be rejected.
18. In the beginning of Westminster model and till sometime ago, the Prime Minister/Chief Minister was considered to be "primus inter pans" (first among equals). In the welfare state, this notion is an illusion. In the modern Indian polity, the Prime Minister/ Chief Minister is all powerful constitutional appointee and whoever does not toe his/her line, has no place in the system of governance. The following observations made by the Full Bench of this Court in Vidadala Harinadhababu v. N.T. Rama Rao (F.B.) would be suffice to support this principle, it was held by the Full Bench:
"Experience has shown that in a Parliamentary form of Government, more so in a welfare State, the Prime Minister/Chief Minister tends to become all powerful. The notion that a Prime Minister is 'primus inter pares' is no longer valid. Some scholars think that the appellation 'Prime Ministerial form of Government' would be more nearer to reality (See Keith: British Constitutional System (Second Edition) at pages 64-66, where he says:
"......... The Prime Minister, as we have seen, forms of the Cabinet, and as we shall see, can secure that removal of ministers in order to maintain Cabinet harmony. He presides over its deliberations, and through the Secretariat supervises the punctual execution of Cabinet decisions.... On all Cabinet matters he is the channel of communication with the king....... He has in the past, normally been the leader of the House of Commons....... He is expected to answer questions on the business of the Commons, to reply to general interrogations not falling within the sphere of individual departments, and to intervene in debates of general importance, such as those on defence, foreign affairs, and domestic issues of prime character. At the same time, as head of the party, he is concerned with all issues affecting its operations; he fosters promising young adherents and intervenes to prevent the development of fissures in its cohesion ........ he must also guide public opinion by receiving deputations and discussing issues, by public speeches at party conferences, and on other set occasions........... Finally, it is to the Prime Minister that heads of departments turn in case of urgent emergency, where Cabinet sanction is normally needed, but where time forbids its being obtained. In such a case the Prime Minister has implied authority to decide, certain of homologation later by the Cabinet......
19. In this background, the submission made by the learned counsel for petitioner may be considered. The gravamen of submission is that after the letter from Private Secretary to Chief Minister to the Commissioner of Police, there is quick change of events resulting in transfer of case from CCS to CBCID. This, according to the learned counsel amounts to interference in the investigation of crime and also interference in the administration of justice. He would urge that every criminal investigation, so as to answer must be impartial and free from nepotism. Transparent investigation can only be ensured when investigation by Police is free from political interference. The general principle that police should be free from bureaucrats and police investigation must be impartial and unbiased brooks no second thought. Every one agrees with the same. Whether the entrustment of the case by the competent authority to CBCID by transferring the case from CCS suffers from any vice?
POLICE AND POLICE STANDING ORDERS:
20. It is the case of Government that one of the officials representing A-4 and A-5 made a representation to Director General of Police who transferred the case to CBCID. The transfer of case is in accordance with Para 861-1 of A.P. Police Manual and PSO 1028 and 1031. These are relevant and need to be extracted as under:
Para 861.1. Functions of Crime Investigation Department are:
A. Investigation of specified cases and cases entrusted by the Government and DGP.
B. Maintenance, up-dating and use of crime-criminal information system, crime and criminal records, planning and implementation of criminal intelligence and crime analysis to improve prevention, investigation and prosecution.
C. Co-ordination of investigation in the State and with other States and National Institutions/Organisations dealing with Crime investigation.
D. Efficient, professional and independent functioning of SCRB, FPB and their modernisation.
E. Advise, assist and report to DGP and Government on matters concerning investigation and prosecution.
PSO 1028 - Manner of assisting the district police in investigation:
(1) The Crime Branch, Criminal Investigation Department, will assist the district police either by;
(a) taking up the entire investigation of a case; or
(b) placing one of its officers at the disposal of the Superintendent of Police.
(2) Sub-Inspectors attached to the Crime Branch must be deputed by an Inspector or Officer of higher rank to investigate into each particular case on which they are employed, but such authorization is not necessary in the case of officers above the rank of Sub-Inspector.
PSO 1031 - Class of crime to be investigated by the Criminal Investigation Department:
(1) The Crime Branch, Criminal Investigation Department, will ordinarily deal with crimes of the following classes;
(a) Note forgery cases.
(b) Cases of counterfeit coining when the counterfeits are struck from dies, and other cognate offences in respect of coining by dies.
(c) Cases of professional poisoning.
(d) Theft of Government arms and ammunition and illicit trade in arms.
(e) Important cases in which foreigners are concerned (including cases of international criminals and traffic in women by foreigners).
(f) Frauds by means of advertisements, bogus funds and companies, impersonation of public servants, and swindling.
(g) Specially important cases of murder; dacoity, robbery and house breaking.
(h) Cases of fraud, theft or cheating of a peculiar nature which affect more than one district.
(i) Cases of such a nature as, in the opinion of the Director General and Inspector General of Police, the Deputy Inspector General or district authorities, call for investigation by an officer of the Crime Branch.
(j) Important thefts of currency notes or important defalcations of public money.
(k) Cases of smuggling of opium, cocaine, and other narcotics.
(I) Cases of bringing fraudulent civil suits.
(m) Gang cases.
(n) Important conspiracy cases whose ramifications extend to several districts.
(o) Pornography.
(p) Any serious crime which appears to have a political motive, including all offences connected with arms and explosive which are suspected to be of a political nature.
(3) Officers of the branch, who have been trained in the Government Mint are available in the Scientific Section in cases where expert evidence or advice is wanted in respect of counterfeit coins, struck or moulded;
(4) Whenever it is intended to launch a prosecution in a case in which apparatus or materials for counterfeiting coins or forging currency notes have been seized, the Scientific Section of the Crime Branch, Criminal Investigation Department, should be asked to give expert opinion before the case is put up in court.
Under Para 861-1, it is open to the Government or DGP to entrust the investigation of specified cases to CBCID. As per PSO 1031, cases of fraud, theft, or cheating or being of such nature which affect more than one district or cases which are of such nature in the opinion of DGP call for investigation by an officer of Crime Branch can be entrusted to CBCID. While transferring a case/entrustment of case to CBCID by withdrawing the case from a regular Police Station or Crime Branch of Police organization, no elaborate reasons, need be recorded nor be communicated.
21. We should not forget that Police organization runs like a paramilitary force and the office of Police Chief is not an ordinary office regulating or enforcing a particular statute. Police organization is a focal department dealing with welfare of people and people who contravene the law. Quick and spot decisions need to be taken and it requires a good understanding of animate and inanimate things to achieve targets. While making a decision, Police Officer is entitled to receive information from various sources. When a case is transferred from CCS to CBCID, Police Chief would not be exercising any quasi-judicial functions compelling to record reasons. It is purely an administrative act and having regard to PSO 1031(1)(i), it is always open to DGP to transfer any case to CBCID which in his opinion calls for investigation by CBCID. It is purely a matter dependent on subjective satisfaction of DGP.
22. In reply to a letter of Private Secretary to Hon'ble Chief Minister dated 16-4-2003, the Commissioner of Police, Hyderabad City addressed letter No. L & O. CP/IC/366/2003 dated 10-10-2003 informing in brief the nature of the case and the progress made in the investigation. It was also informed that "as the offence was an organized crime committed by the accused who are from Bangalore and Delhi on 6-3-2003, the case was transferred to Central Crime Station for further investigation" and that on 21-4-2003, the case was transferred to CBCID, Hyderabad. The letter of Commissioner addressed to Chief Minister's office reads as under:
Sub.: City Police, Hyderabad - note submitted by Mr. D.V.V. Surya Narayana Raju, M.D. and Mr. Appa Rao, Director, Ascend Technologies in Cr. No. 58/2003 of Chikkadpally P.S. - Reg.
Ref.: C.M.O. Endt. No. 01378/CMP/2003 dated 16-4-2003 from the Principal Secretary to C.M. Kind attention is invited to the reference cited and it is inform that the Hon'ble XII Metropolitan Magistrate, Hyderabad referred the complaint of Sri D.V.V. Stayanrayana Raju S/o D. Krishnam Raju, M.D. of Ascend Technologies Limited, Domalguda, Hyderabad to Chikkadpally P.S. for investigation. On that a case in Crime No. 58/2003 was registered on 2-2-2003 at 13.30 hours and later on 6-3-2003 it was transferred to CCS for further investigation, as the offence was an organized crime committed by the accused, who are from Bangalore and Delhi.
Dr. Sujendra Prakash (A-3) (Ph.D. in Psychology) developed a software at Bangalore called "OPTYS" for imparting memory training to School children. His wife Smt. Aruna (A-2) is the proprietor of "SCAPE" software company and OPTYS is the product of said SCAPE. Dr. Nagendra Prakash (A-1) elder brother of Sujendra Prakash who got good public contacts in Bangalore City took the responsibility of marketing the "OPTYS" and contacted the complainant in Hyderabad and all the three (A-1 to A-3) sold OPTYS rights to the complainant on 1 -11 -2001. Further the complainant spent huge money and fine tuned the OPTYS and brought out a CD and facilitated to watch it Audio visually.
As per the sale agreement the complainant has to pay Rs. 25,000/-every month for five years and every last month of the year he has to pay Rs. 50,000/- all amounting to Rs. 17,50,000-00. As such the complainant got absolute right over the "OPTYS" for marking its software globally. After few months as a part of marking i.e., on 23-5-2002 the complainant sold out the rights to Burgundy Tradings Pvt. Ltd. New Delhi empowering the said company to market the "OPTYS" in all Northern States of India for monetary consideration. After one year i.e., on 29-10-2002 the said "OPTYS" was again sold to the Burgundy Tradings Pvt. Ltd., represented by Druv Ghoudhary, Chief Executive Officer and Madhusudan Bandreddy, Vice-President of Burgundy Trading Pvt. Ltd., who are A-5 and A-4 respectively, giving rights for marketing globally ignoring the agreement made with the complainant. Thus A-1 to A-5 cheated the complainant.
During the course of investigation Smt. Aruna (A-1) and Dr. Sujendra Prakash (A-3) were arrested on 7-4-2003 at Bangalore and on interrogation, they voluntarily admitted their guilt Dr. Sujendra Prakash (A-3) visited. Delhi many times by air and entered into an agreement with Madhu Sudhan Band Reddy and Druv Choudhary (A-4) and (A-5). The agreement copy, hotel bills at Delhi, source code used, air tickets and other correspondence between A-3 and A-4, A-5 were down loaded from the system of A-2 and A-3. The same were seized at their instance from their aunty's house at Bangalore under mediator's report. They were remanded to judicial custody on 8-4-2003 and later released on bail. Efforts were made to apprehend the accused A-4 and A-5 at Delhi but in vain. They moved anticipatory bail in the court of Hon'ble II Addl. M.S.J. Court, Hyderabad on 17-4-2003. The counter for bail petition against the accused is also filed with the consultation of P.P. concerned on 21-4-2003. The case is U.I. for apprehension of A-1 Nagendra Prakash as well as A-4 and A-5.
On 21-4-2003, this case was transferred to CB CID, Hyderabad for further investigation.
23. A reading of the above letter would show that allegation of petitioner that no progress is made in the investigation of crime is incorrect and that efforts were being made for the arrest of accused Nos. 1, 4 and 5. Further, it is not denied by the counsel for petitioner that what is reported has trappings of an organized crime. As per para 861-1 of A.P. Police Manual (Part I Vol. III), it shall be one of the functions of CID to coordinate investigation in the State and with other States and national institutions dealing with crime investigation. As per PSO-1031, in cases of fraud, theft or cheating of a peculiar nature which affect more than one district are to be investigated by CID as and when entrusted by the Director General of Police or Government. It is one of the submissions by the learned counsel for petitioner that case reported by the petitioner is a peculiar case of violation of copyright of Computer software developed by petitioner. This Court therefore is of considered opinion that the offence is a peculiar offence and needs to be investigated by CBCID than the Central Crime Station, Hyderabad City Police, because CBCID has larger jurisdictional area. In that view of the matter, there is no truth that the case was transferred by Director General of Police to CBCID at the instance of Chief Minister's office.
24. As observed by me, it is always open to Government to monitor investigation in any case and also advise the DGP to transfer the case from one agency to another agency. In a given case, the Government can also transfer any case from one, investigating agency to any other investigating agency. The petitioner being a complainant, cannot choose the investigating agency as per its perceptions. If the petitioner apprehends that investigation would not be impartial and independent and the accused would be let-off at the investigation stage by filing a report under Section 173(2) of Cr.P.C. favouring the accused, can it be said that petitioner has no other remedy.
25. This Court and Hon'ble Supreme Court have laid down in umpteen number of cases that in matters of criminal investigation and criminal trial, the jurisdiction under Article 226 of the Constitution should not be invoked either to stop investigation, quash investigation or to interfere in investigation. These are the matters within the exclusive domain of Police Department and/or Government. As held by this Court in G. Muralikrishna v. Smt. G. Madhavi 2001 (1) ALT (Crl.) 433 (A.P.), "investigation of an offence is a field exclusively reserved to executive through the Police Department, the superintendence over which vests with in the State Government. The executive who is charged with a duty to keep vigil 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 offenders to book. In so saying, this Court relied upon the judgment of the Supreme Court in State of Bihar v. J.A.C. Saldanna and State of Haryana v. Bhajanlal .
26. If there is a genuine complaint of lackluster promptness, there are a number of provisions in Cr.P.C. which enable the complainant to seek further investigation by obtaining appropriate orders from the competent criminal court be it either Judicial First Class magistrate or District Sessions Court. A reference may be made to Sections 156(3), 173 (4), 202 (1), 210 (1) and 386 (a) of Cr.P.C. In Mahavir Prasad Gupta v. State of National Capital Territory of Delhi , the Supreme Court reminded that in Cr.P.C. there are sufficient provisions which enable the party to move High Court if there is abuse of process of law and the petitioners should avail those provisions and there cannot be any justification for invoking Article 226 of Constitution of India.
27. Even after the Police files report under Section 173 (2) after completing investigation, the complainant has adequate remedies to file objections to the investigation report. In Bhagwant Singh v. Commissioner of Police (1 supra), the Supreme Court considered the question whether the Magistrate of First Class can accept the report of the Police submitted under Section 173 (2) of Cr.P.C. without giving notice to complainant and without hearing the objections of complainant. It was held therein:
But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding further against some, there is no sufficient ground for proceeding against others mentioned in the First Information Report the informant would certainly be prejudiced because the First Information Report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the first Information Report lodged by him is clearly recognized by the provisions contained in Sub-section (2) of Section 154, Sub-section (2) of Section 157 and Sub-section (2)(ii) of Section 173, it must be presumed that the informant would equally be interested in seeking that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the First Information Report lodged by him. There can, therefore, be no doubt that when, on a consideration of the report made by the Officer-in-charge of a police station under Sub-section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under Sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.
28. In Union Public Service Commission v. S. Papaiah case, a complaint was made by Commissioner to the Joint Director of CBI alleging use of unfair means by first respondent at Indian Forest Service Examination in 1992. After completing investigation, CBI filed final report under Section 173 Cr.P.C. seeking closure of the case. In spite of request, CBI did not inform UPSC about the filing of final report seeking closure of the case. The learned Magistrate returned the final report, because a copy of the notice required to be issued to the complainant was not filed along with the report though CBI asserted that UPSC was informed. Later, CBI resubmitted the report with an acknowledgment of receipt of notice of UPSC. The CBI however, did not inform UPSC that it could file objections to the final report as directed by the learned Magistrate. Therefore, the final report was again returned. Having come to know this, UPSC addressed the Director of CB! alleging that investigation had not been carried out properly and that there is a need for re-investigation of the case. This was in the nature of protest petition in response to the notice of CBI that they filed a closure report before the learned Magistrate.
29. The Director informed UPSC that concerned Court has to be moved if UPSC desires that case should be reinvestigated on the points raised by them. After receiving the said communication, UPSC filed Criminal Miscellaneous Petition before the learned V Metropolitan Magistrate requesting to order re-investigation. The application was opposed by CBI contending that as the complainant has not filed objections to the final report, it could not be permitted to make any grievance about the acceptance of final report by the Court. The Court rejected the petition of UPSC observing that UPSC had not filed its objections to the acceptance of final report and as such it could not complain. Aggrieved by the same, a revision petition was filed before the court of I Additional Metropolitan Sessions Judge, Hyderabad which dismissed the criminal revision petition observing that the learned Metropolitan Magistrate had no power to review its order under which the CBI final report was accepted. The Apex Court in Bhagwant Singh v. Commissioner of Police (1 supra) observed that issuance of notice by the Magistrate to the informant at the time of consideration of final report is a "must" and accordingly allowed the appeal and remitted the matter to the learned Metropolitan Magistrate for issuance of directions to CBI under Section 173 (8) Cr.P.C. to further investigate into case and collect evidence. It was also held:
As per the law laid down in Bhagwant Singh case the issuance of notice by the Magistrate to the informant at the time of consideration of the final report is a must. This binding precedent which is the law of the land, has not been followed by the Vth Metropolitan Magistrate and was wrongly ignored by the revisional court also.
30. The case in UPSC v. S. Papaiah (12 supra) is a clear authority for the proposition that the learned Magistrate competent to take cognizance of an offence can issue directions to investigating agency if an objection is raised by the informant/ complainant, at the time of consideration of final report of police agency before the learned Magistrate. Even if the petitioner has .an apprehension that investigation was not properly done, petitioner has a remedy under Cr.P.C. Therefore, this Court is not inclined to grant any relief to the petitioner in this writ petition.
31. In Ch. Srihari Rao v. Government of A.P. 2000 (1) ALD (Crl.) 112 (A.P.), after referring to the above two decisions of Apex Court, I held as under:
Therefore, the law is well settled that when a report submitted by the police under Section 173(2) Cr.P.C. the Police Officer who investigated the cognizable offence under Sections 156 and 157 Cr.P.C., the Magistrate of the First Class or the Magistrate of Second Class, as the case may be is bound to give a notice to the informant or the person who gave the information regarding commission of the offence of the cognizable offence before accepting the report of the police submitting non-commission of the offences. The Magistrate is also bound to hear the informant who gave first information report of commission of offence and pass appropriate orders. Those orders can be further challenged under Section 397 or 401 Cr.P.C.
32. The remedy under Article 226 of the Constitution of India is extraordinary remedy. It is not intended to correct all errors arising of commissions and omissions in the governance. If there is any grievance in relation to Police investigation or Police report or a criminal conviction, the aggrieved party has adequate remedies. Merely because on a complaint given by the accused the office of Chief Minister addressed the Commissioner to send a report, the investigation cannot be termed as one-sided or partial. Learned counsel for the petitioner would like this court to draw an inference that when the office of Chief Minister addressed a letter to Commissioner, there is a likelihood of Investigating Officers clamouring to file a report in favour of the accused, cannot be accepted. If any citizen complains to the Head of the Government or the Head of the Police about investigation, it is always open to look into the matter and take appropriate action and in the considered opinion of this Court, that is what precisely has been done. I do not see any reason to draw an inference as suggested by the learned counsel for the petitioner.
33. The writ petition, for the above reasons is dismissed with costs.