Andhra HC (Pre-Telangana)
Kantheti Jaggaiah vs Sub-Inspector Of Police And 2 Ors. on 15 June, 2001
Author: S.B. Sinha
Bench: S.B. Sinha, B. Sudershan Reddy
JUDGMENT S.B. Sinha, C.J.
1. This appeal is directed against a Judgment and Order dated 19.3.2001 passed by a learned single of this Court in W.P.No.3097 of 2001 whereby and where under the writ petition filed by the appellant herein praying for the following relief to issue an appropriate writ, order or direction especially in the nature of writ of mandamus directing the Central Bureau of Investigation to investigate the Crime No.6/2001on the file of the Pattabhipuram Police Station, Guntur instead of the respondents and to file the charge sheet against the culprits and to pass such other order or orders as are being justice and proper in the circumstances of the case was dismissed.
2.The factual matrix of the case is that in relation to an incident which had taken place on 14.1.2001 wherein the brother of the appellant was burnt to death, purported to be at the hands of one Sri Srikanth, his wife Janaki and their son Ranganath, a case in Cr.No.6 of 2001 on the file of Pattabhipuram Police Station, Guntur, was registered for the offence punishable under section 306 I.P.C. According to the appellant, the police ought to have registered a case against the accused persons for the offence punishable under section 302 I.P.C. and having regard to the alleged fact that no proper investigation was being done, he filed the above aforementioned writ petition for a direction that the investigation in relation thereto be conducted by the Central Bureau of Investigation.
Relying on the decision of the Apex Court in BHAGWANT SINGH V. COMMISSIONER OF POLICE, DELHI1, the learned single Judge has dismissed writ application.
3.This Court while admitting the Writ Appeal, by order dated 3.4.2001 in W.A.M.P.No.928 of 2001 directed as under:
Let the matter appear two weeks hence. In the meantime, the Superintendent of Police, Guntur, is directed to examine the materials on record, including the FIR, Post Mortem Report, Forensic Science Laboratory Report and other materials collected, and submit a comprehensive report to this Court, keeping in view the allegations made in the writ application to the effect that the Investigating Officer has been colluding with the accused persons and favoring them by registering a case under section 306 I.P.C. instead and in place of Section 302 I.P.C.
4.Pursuant to or in furtherance of the said directions, the Superintendent of Police, Guntur, having regard to the Post-mortem certificate issued by the Professor of Forensic Medicine, Guntur Medical College, Guntur who conducted autopsy over the body of the deceased Sambasivarao and further upon receipt of the report from the Forensic Science Laboratory and the final opinion from the Professor of the Forensic Medicine, Guntur Medical College, Guntur, stated thus:
On 26.4.2001 at 10.00 a.m the final opinion of the Professor of the Forensic Medicine, Guntur Medical College, Guntur was received. Basing on the final opinion, the Inspector of Police, East Circle, Guntur Town, Guntur altered the section of law from 306 IPC to 302 IPC r/w 34 IPC, registered the FIR and submitted copies of FIRs to all Officers concerned.
The copies of altered FIR and the final opinion of Professor, Forensic Medicine, Guntur Medical College, Guntur are herewith submitted. The investigation is in progress.
There is no necessity for the investigating agency to show any bias towards the accused or complainant and the accused were promptly arrested and sent for remand on 15.1.2001 and investigation is in progress. It is therefore submitted that all possible steps are taken for the best investigation possible at this end.
The appellant has filed objections to the said report.
5.Mr. Chandrasekhara Rao, learned counsel appearing on behalf of the appellant, inter alia, submitted that the very fact that the First Information Report was registered under Section 306 IPC in place of 302 I.P.C would show that the Investigating Officer carried out the investigation on a wrong premise. The learned counsel would contend that in view of the fact that ultimately the police have a registered a case under section 302 I.P.C, the accused should be remanded to judicial custody and in support of said contention, reliance has been placed on the decision of the Apex Court in Prahlad Singh Bhati v. N.C.T. Delhi2. It was submitted that in a case of this nature, fresh investigation should be directed to be made for an offence punishable under section 302 IPC as no purpose would be served by directing the Police to make a fresh investigation, the C.B.C.I.D. should be directed to make the investigation afresh.
6.In this case, the stage of investigation is almost over. Materials have already been collected during the investigation. The appellate court in exercise of its power under Section 190 Cr.P.C. takes cognizance of a case and ultimately it would be for it to frame proper charges on the basis of the materials on record. In the instant case, the main grievance of the appellant is to the effect that a case under section 302 IPC ought to have been registered which has already been redressed inasmuch the charge in the FIR is now altered to the one under Section 302 IPC and a charge sheet will be filed for the said offence.
7.It is now a well settled principle of law that a Writ Court would not ordinarily convert itself into a Criminal Court nor shall usurp the powers of a Magistrate.
How far and to what extent the investigation is defective can only be found out by the learned magistrate at the appropriate stages of proceedings before it. In the event it is found that further investigation is required to be made, such a direction can be issued by the magistrate in terms of sub-section (8) of Section 173 of the Code of Criminal Procedure. The appellant - writ petitioner, therefore, has an efficacious remedy in this regard.
8.A Writ Court in exercise of its jurisdiction under Article 226 of the Constitution of India can interfere in a matter relating to a criminal offence when the investigation is mala fide. It ordinarily would not enter into the merit of the investigation and allow such investigation to be conducted in accordance with the provisions contained in Cr.P.C. The Code of Criminal Procedure, 1973 provides for adequate safeguards both to the prosecution and the defence.
9.As noticed hereinbefore, if the learned Magistrate upon hearing the appellant - writ petitioner findings that further investigation is necessary, such a direction can be issued under Section 173(8) of Cr.P.C.
10.Furthermore, in exercise of its jurisdiction under Article 226 of the Constitution of India, this Court, normally, would not go into the question whether investigation in a case has properly been made or not unless a specific case is made out in that regard. So far as the submission of Mr. Chandrasekhara rao to the effect that the accused persons should be directed to be arrested is concerned, in our considered opinion, such a direction cannot be issued having regard to the prayer made in the Writ petition.
11.In Prahlad Singh Bhati's case (supra) the Apex Court was considering a different fact situation. There, in a case registered for the offences punishable under sections 306 and 498-A IPC, the accused was granted anticipatory bail by the learned Additional Sessions Judge, New Delhi. An application for cancellation of the bail was filed. The Additional Sessions Judge while dismissing the said application observed that if on facts a case under S.302 for offence of murder is made out against the accused, the State shall be at liberty to arrest him. Charge sheet thereafter was filed under section 302 IPC. But, despite such observation, the accused was not arrested. Against the order releasing the accused on bail, a writ petition was filed which was dismissed by the High Court. In that situation, the Apex Court considered the question as to under what circumstances bail should be granted and held that with the change of the nature of the offence, the accused became disentitled to the liberty granted to him in relation to a minor offence and in a situation of this nature, the Magistrate adopted a wrong approach to confer him the benefit of liberty on allegedly finding that no grounds were made out for cancellation of bail.
12.In the instant case, the accused persons are not parties to the Writ Petition and on that ground alone, no direction for arrest of the accused persons can be granted by this Court. The appellant - writ petitioner, in our opinion, can only make an appropriate prayer before the appropriate Court for cancellation of bail as had been done in Prahlad Singh Bhati's case and if such an application is filed, we have no doubt, the same will be disposed of in accordance with law. In view of the fact situation obtaining in the case, in our opinion, it is not necessary for this Court to consider the question as to whether it is a fit case where fresh investigation should be directed to be conducted by the Central Bureau of Investigation.
13.For the reasons aforementioned, we find no merit in this appeal which is accordingly dismissed. There shall be no order as to costs.