Andhra HC (Pre-Telangana)
K.G. Kannabiran vs Chief Secretary, Govt. Of A.P. And Ors. on 14 August, 1995
Equivalent citations: 1997(4)ALT541, 1995(2)ALT(CRI)490
Author: C.V.N. Sastri
Bench: C.V.N. Sastri
JUDGMENT P.S. Mishra, C.J.
1. Sri K.G. Kannabiran, a practising Advocate of this Court and the President of the Peoples' Union for Civil Liberties made on 27-7-1995 an oral application and referred to a news item of morning city edition of the Newspaper 'Indian Express' that an unidentified Peoples' War Group (PWG) Naxalite was shot dead by the police in an alleged encounter near Ashoknagar under Musheerabad police limits late on Wednesday night i.e., 26/27 July night. Sri Kannabiran stated that he had information that one T. Madhusudanraj Yadav, a trade-union leader, was reportedly missing since the alleged encounter and sought Court's intervention for enabling his (T. Madhusudanraj Yadav's) wife and other members of his family to identify the body of the alleged unidentified Peoples' War Group Naxalite. The body of the alleged Naxalite was reportedly in the mortuary of Gandhi Medical Hospital, Secunderabad. The Court ordered as follows:
"It goes with the duty of the police and it needs no reiteration that every case of homicide in whatever circumstances it occurs has to be registered as a case for investigation and the police for the said reason is duty-bound to make all efforts to secure the identification of the victim of the homicide. Since no formal application has been made and there is no appearance before us of any person on behalf of the State, it is not possible for us to know whether police has registered a case and has taken steps to secure the identification of the victim of the homicide or not. We, however, see justification in the prayer made on behalf of Smt. Swarna and Sri T. Neelakantha Raj Yadav and the submissions of Sri K.G. Kannabiran for immediate order of the Court-
(1) that the Director General of Police, Andhra Pradesh and the Commissioner of Police, City of Hyderabad, shall ensure that the body of the alleged Naxalite which is kept in the mortuary in Gandhi Medical Hospital, Secunderabad, is not interfered with and kept in the mortuary until Smt. Swarna and Sri T. Neelakantha Raj Yadav, the wife and father of Sri. T. Madhusudan Raj Yadav, are permitted to see the dead body and accordingly identify whether the dead body is of T. Madhusudan Raj Yadav or of some other person:
(2) that the Superintendent, Gandhi Medical Hospital, Secunderabad, is directed to keep the dead body of the alleged naxalite in the Mortuary and not to permit anyone to remove the body from the mortuary until further orders of the Court; and (3) Sri K.G. Kannabiran, Advocate, is permitted to accompany Smt. Swarna and Sri. T. Neelakantha Raj Yadav and be present at the time of the identification of the dead body by them."
2. As ordered by us on 27-7-1995, the oral application has been numbered as a writ petition under Article 226 of the Constitution of India and the report in the newspaper aforementioned has been treated as a part of the petition. Since our order above, the dead body of the alleged naxalite has been identified as that of Madhusudan Raj Yadav and Sri K.G. Kannabiran has made a regular application seeking, inter alia, a direction by the Court to the Sessions Judge to conduct enquiry into the killing of Madhusudan Raj and submit a report to this Court within a fixed time frame, a direction to the Government to notify Sessions Judges as Human Rights Courts to take cognizance of all cases of human rights violations as provided for in Section 30 of Protection of Human Rights Act and for a direction to the Director General of Police, Government of Andhra Pradesh, to cause production of four persons, namely, Lingamurthy, M.S.Shyamala, Syamala Rao and one more woman before any Judicial First Class Magistrate forthwith.
3. On 28-7-1995, we passed an order seeking informations: (1) About all Station Diary entries and/or entries in the movement registers of the police officers of District Warangal for their presence on 26/27-7-1995 in the City of Hyderabad; (2) Whether any report was made at Musheerabad Police Station by any person of any fugitive or any person wanted by law residing and likely to be arrested by the police and after the alleged encounter and death of T. Madhusudan Raj Yadav in the alleged encounter, any case registered at Musheerabad Police Station and if any such case registered, the contents of the report and information as to action, if any, taken by the Officer in-charge of the said Police Station; and (3) Whether there were cases registered at any police station/police stations in Warangal District'and T. Madhusudan Raj Yadav was wanted in any such case/cases and there is any material to show that attempts were made to apprehend him, but he escaped and whether any such information as required by law was given to the Court of the Magistrate by the police. We accordingly directed the concerned officials through the Director General of Police, State of Andhra Pradesh, to produce materials in respect of the matters aforementioned so that the Court was informed of the material facts.
4. On behalf of the Director General of Police, Andhra Pradesh, Sri P. Venkaiah, Inspector General of Police, Law and Order, Andhra Pradesh, has filed an affidavit. He has stated that he had gone through the records relating to Cr.No. 150/95 Under Section 307 I.P.C. and 25 and 27 LA. Act of P.S. Musheerabad and Cr.Nos. 121/88 Under Section 148, 307 r/w 149 I.P.C, 25, 27 Arms Act, 3 and 4 of TADA Act of Mulug P.S. Cr. No. 27/95 of Venkatapur P.S. Under Section 148 ,307 I.P.C. and 25,27 Arms Act, Cr. No. 44/95 Under Section148,307 r/w 149 IPC, 25,27 Arms Act of P.S. Bhupalpalli of Warangal District and alleged that the deceased T. Madhusudan Raj Yadav was the State Committee Secretary and Central Committee Member of CPI-MLCP Group (Phanibagchi faction) which is also called as Pratigatana. The counter-affidavit contains a brief but specific allegations that the group Pratigatana in the State has accounted for 42 violent incidents including 10 murders in 1990, 38 violent incidents including 6 murders in 1991,50 violent incidents including 8 murders in 1992, 41 violent incidents including 9 murders in 1993 and 30 violent incidents including 9 murders in 1994 and one murder in 1995 and that, "This group organised armed squads in Warangal, Khammam, Karimnagar and other districts and collected huge funds from contractors and other moneyed people and procured large scale arms and ammunition." Speaking specifically about T. Madhusudan Raj Yadav, the counter states as follows:
"Late Sri T. Madhusudan Raj Yadav, Sri Kurapati Lingamurthy and Sri Vinod of the State Committee are reportedly procuring arms and ammunition including AK.47 from various sources for their armed squads. Deceased Madhusudan Raj Yadav was the Provincial Committee Secretary of this group since 1988. Warangal District in general and Mulug, Parkal, Eturnagaram, Bhupalpalli and Narsampet areas in particular have been facing the brunt of CPI-ML Pratigatana violence in the form of murders, arson, extortion and coercion."
Mentioning about Cr.No. 44/95 of P.S. Bhupalpalli of Warangal District, the counter says as follows:
"That Cr.No. 44/95 of P.S. Bhupalpalli of Warangal District, relates to an armed encounter in the Kamalapur forest area in which one Pratigatana cadre was killed in exchange of fire, and one SBBL gun and some ammunition and empty cartridges of AK-47 rifles and kits were seized on 17-7-95. This encounter is in consequent to the information received about a meeting by CPI-ML Group (Phanibagchi faction) and the said meeting was conducted under the leadership of State Secretary late Sri T. Madhusudan Raj Yadav and State Committee Members Kurapati Lingamurthy, Vinod along with the armed dalams of Warangal District. As such the Warangal Police launched a special drive to apprehend the extremists in order to maintain law and order.
Basing on the material recovered and also on the reliable information of the informants, the Police could come to know about the participation of K. Lingamurthy and deceased T. Madhusudan Raj Yadav who are the State Committee Members of CPL-ML Group in the meeting. They have participated in the said meeting and fired against the Police. Therefore these two persons were wanted accused in Cr. No. 44/95 of Bhupalpalli PS and the Police were in search of them and others who participated in the encounter."
5. The counter-affidavit/however, is silent how, in the night of 26/27-7-1995, and where, T. Madhusudan Raj Yadav was found and how in the alleged encounter Madhusudanraj Yadav was killed except acknowledging that subsequent to the encounter in Crime No. 44 of 1995 of Bhupalpalli P.S., special party had been constituted by Superintendent of Police, Warangal, to apprehend the important cadre i.e., K. Lingamurthy, T. Madhusudan Raj Yadav, Vinod etc., and, "Specific instructions were issued to apprehend them at any cost" and also that, "no report was made about fugitive or wanted person by Law at P.S. Musheerabad in view of the fact that Lingamurthy and the deceased T. Madhusudan Raj Yadav are of U.G. cadre and Warangal Police thought it proper to maintain high-secrecy to execute their operation successfully in apprehending the U.G. cadre. (Learned Advocate General has expanded "U.G." means "Underground")". It is stated that T. Madhusudan Raj Yadav was wanted accused and required in Crime No. 121/88 of P.S. Mulug, Crime No. 27/95 of P.S. Venkatapur, Crime No. 44/95 of Bhupalpalli P.S. and it is also stated that in Crime No. 121/88, the police only partly charged six arrested, accused K. Lingamurthy and Madhusudan Raj Yadav were cited as accused Nos. 18 and 19 and added, "The said charge-sheet is numbered as S.C.No. 78/91 by Hon'ble Addl. Sessions Court, Warangal against only six accused. Sri Lingamurthy and the deceased Madhusudan Raj Yadav were to be charged separately as per the directions of the Sessions Court. Accused Lingamurthy and deceased T. Madhusudanraj Yadav were avoiding their arrest while operating their activities regularly. They participated in number of cases of exchange of fire in Warangal District. Every time they escaped their arrest." There is, however, a mention that the Government has issued an order constituting a Commission to enquire into the death of Madhusudan Raj Yadav in police encounter and that a case has been registered and is under investigation in Crime No. 150/95 of P.S. Musheerabad about the encounter. The First Information Report of Crime No. 150 of 1995 dated 26-7-1995 is for the alleged offence Under Sections 25 and 27 of the Indian Arms Act, the accused: Madhusudan Raj Yadav and the brief facts, "that on 26-7-1995 at about 8.45 p.m. there was an exchange of fire between police Warangal and Madhusudan Raj Yadav, State Secretary, Panibagchi group of CPI-ML. When police tried to apprehend him, the accused Madhusudanraj Yadav opened fire with his revolver on police with an intention to kill" and under the column "Action taken: Since the above report reveals commission of offences" it is noted "Under Sections 307,25 and27Indian Arms Act,................"The informant is D. Venkata Narsaiah (S.I. of Police (L&O)), P.S. Mills Colony, Dist. Warangal. However, there is a communication accompanying the said report by the informant D. Venkata Narasaiah which reads as follows:
" I, D. Venkata Narasaiah, am working as SI of Police L & O at P.S. Mills Colony of Warangal Town of Warangal Dist.
The Panibagchi group of CPI ML is involved in several cases of murders and other cases in our Warangal District through its well organised armed dalams. One Kurapati Lingamurthy @ LMK a resident of Kasibugga area of Warangal Town is the provincial committee member of the said organisation and he is a wanted extremist.
Today we received specific information about the presence of Linga Murthy in Hyderabad City. Hence a special party of our police personnel came to Hyderabad and found the said Linga Murthy near Ashoknagar area in the afternoon. Immediately he was apprehended and on questioning he disclosed that Madhusudan Raj Yadav, State Secretary of the said group would visit his house to-night to hand over him some arms and ammunition in order to dispatch the same to their dalams. As Madhusudan Raj Yadav is a wanted extremist leader I along with ARPC 1862 Yadagiri went to Linga Murthy's house and was lying in wait. At about 8.45 P.M. Madhusudan Raj Yadav entered Linga Murthy's house with a bag in his hand. We disclosed our identity and tried to apprehend him. He dropped the bag, grappled with us, wriggled away, took out his revolver and fired at us with an intention to kill us. In self-defence we also returned the fire resulting in his instantaneous death. In the scuffle our PC also received injuries. The bag of Madhusudan Raj Yadav contains live ammunition of various calibre.
Hence you are requested to take necessary action."
6. Before we embark into the contentions, to complete the narration of events and the facts, we enquired from the learned Advocate General whether the organisation, of which Madhusudan Raj Yadav was the Secretary, is banned under any law and is declared as an outfit of outlaws. We are informed that CPI-ML (Phanibagji faction) which has been variously described by the deponent of the counter-affidavit is not a banned organisation and thus any activity of the members of the said group in itself is not an illegal act or a crime. If at all, thus there is any allegation against individuals and the allegations disclose commission of any offence, they can be charged of such activities but not generally only because they are members of the said group.
7. Criminal Procedure Code is the hand-book for the police to act and arrest any person, investigate the crime and book the criminals. Chapter V of the Code contains the provisions about arrest of persons and includes therein Section 41 which says when police may arrest without warrant. It outlines the power of the police officer to arrest without a warrant and without an order from a Magistrate, any person, "(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or (b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or (c) who has been proclaimed as an offender either under this Code or by order of the State Government; or (d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or (e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or (f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or (g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or (h) who, being a released convict, commits a breach of any rule made under Sub-section (5) of Section 356; or (i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition." There are other provisions which detail when police can apprehend any person and when police can and to what extent use force. Section 46 of the Code, however, says, "(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action; (2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest; and (3) Nothing in this Section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life."
8. We have seen the facts of the case through the eyes of the deponent of the counter-affidavit and have found that the charges, if at all, were/are taken to the Court, they will constitute an offence, the maximum punishment for which is life-imprisonment. If it is proved, however, by any evidence that the police had rightly acted to apprehend Madhusudan Raj Yadav, and the police could arrest him without any order from a Magistrate or without a warrant and it is shown further that he made attempt to evade the arrest, the police may show that it had justification to use all means necessary to effect the arrest and since he was an accused of an offence punishable with imprisonment for life, if death was caused while effecting the arrest, it will fall within one of the exceptions Under Section 100 of the Indian Penal Code. It will be besides the right of private defence and an excuse to the police to justify the assault.
9. History of mankind, which has been narrated time and again, and has been expressed in India as a faith in the Constitution and in some countries developed by conventions reveals that there has always been an attempt by human beings if not to rise to the level of angels, at least, not to sink to the level of beasts and protect each other by codes and rules of behaviour so that no one is harmed by the other and individuals are protected by the society at large from crimes which go, if not with the mind, by acts of lust and power.
10. In the context of the above, without going to the international conventions and the rules that comity of nations have desired to apply universally, Article 21 of the Constitution has guaranteed protection of life and personal liberty that, "No Person shall be deprived of his life or personal liberty except according to procedure established by law." As the courts have pointed out, if read literally it is a colourless article and would be satisfied, the moment it is established by the State that there is a law which provides procedure which has been followed by it, but the expression 'procedure established by law' in Article 21 has been judicially construed as meaning a procedure which is reasonable, fair and just. Crime, no doubt, has to be eradicated. No society can progress without there being order and there can be no order in a society unless it is disciplined by law. The same law i.e,, Code of Criminal Procedure, which has given the power to the police to arrest without warrant and recognised that the Police Officer or other person making the arrest shall actually touch or confine the body of the person to be arrested and permitted the use of force to effect the arrest, however, recognised in Section 48 that a Police Officer may, for the purpose of arresting without warrant any person whom he is authorised to arrest, pursue such person into any place in India, but in Section 49 it is stated, "The person arrested shall not be subjected to more restraint than is necessary to prevent his escape." In Section 50 it is stated that any person arrested without warrant shall be informed about full particulars of the offence for which he is arrested or other grounds for such arrest and Sections 53 and 54 have prescribed that a police officer may ask for the examination of the accused by a registered medical practitioner or when the arrested person is produced before a Magistrate or at any time during the period of his detention in custody he alleges that the examination of his body will afford evidence which will disprove the commission by him of any offence or which will establish the commission by any other person of any offence against his body, he may require the Magistrate and get himself examined by a registered medical practitioner. Section 48 of the Code, however, has significant expressions. "A police officer...............any person whom he is authorised to arrest......." Chapter XII of the Code of Criminal Procedure speaks of the information to the police and their powers to investigate. Section 154 therein says, "(1) Every information relating to the commission of a cognizable offence, if given orally to an Officer-in-charge of a police station.............shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf." Section 156 provides, "(1) Any Officer-in-charge of a police station may...............investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII...................." The expression "officer-in-charge of a police station" is defined Under Section 2(o) of the Code as "officer in-charge of a police station" includes, when the Officer-in-charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station house who is next in rank to such officer and is, above the rank of constable or, when the State Government so directs, any other police officer so present;" The term "police station" is defined Under Section 2(s) of the Code as "police Station" means any post or place declared generally or specially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf;" Section 157 of the Code provides," (1) If, from information received or otherwise, an officer-in-charge of police station has reason to suspect the commission of an offence which he is empowered Under Section 156 to investigate, he shall forthwith send a report of the same to Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, be general or special order, prescribe in this behalf to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary to take measures for the discovery and arrest of the offender:............"
11. We have pondered a little into the procedural aspect of the investigation of a case because in the instant case we are informed by the Inspector General of Police, Law & Order, that the deceased Madhusudan Raj Yadav was an accused in three cases registered at three different Police Stations, namely, Crime No. 121/88 of police station Mulug, Crime No. 27/95 of police station Venkatapur and Crime No. 44/95 of Police Station Bhupalpalli of Warangal District. The narration, however, in the counter-affidavit of the misadventures or alleged crimes or acts of violence of the group called Pratigatana of the alleged 42 incidents including 10 murders in 1990, 38 incidents including 6 murders in 1991, 50 incidents including 8 murders in 1992, 41 incidents including 9 murders in 1993 and 30 incidents including 9 murders in 1994 and one murder in 1995, are not only general in nature but do not appear to justify any charge against the deceased Madhusudan Raj Yadav pending in any other case. The group, we have already noticed, is not declared unlawful and as we have noticed earlier, if certain individuals who are said to be members of the group i.e, CPI-MLCP group are found involved in any illegal activities, they have to be charged as individuals and proceeded against as individuals or as members of the unlawful assembly comprised of those who participated in any particular offence or occurrence. No charge can be made for the activities of others upon Madhusudan Raj Yadav merely because some of the participants in the offences were/are members of CPI-MLCP group and because he himself i.e., Madhusudan Raj Yadav was the State Committee Secretary of Central Committee member of the group. There can neither be any imaginable situation in which for the offences in which he has not participated, merely because he happened to be the State Committee Secretary and the Central Committee member of CPI-MLCP group, he shared the responsibility for the unlawful activities of the other members of the group nor there can be any such presumption in law that because some members of CPI-MLCP group alleged to have committed offences for which they were are proceeded against, Madhusudan Raj Yadav in the capacity of the State Committee Secretary and Central Committee member will be held responsible. Any special squad to arrest Madhusudan Raj Yadav must emanate from the Officer-in-charge of the police Station Mulug or of Venkatapur or of Bhupalpalli and not from any other person or source except, of course, the officers superior in rank to the Officer-in-charge of the aforementioned police Stations who, Under Section 36 of the Code of Criminal Procedure, can exercise same powers throughout the local area to which he is appointed as may be exercised by such Officer-in-charge within the limits of his station. We have been looking for any material, however, from which it can be inferred that the so called special task force, which came from the District Warangal to the city within the Musheerabad police Station limits on information that Lingamurthy was staying somewhere near Ashoknagar area, was authorised by the Officer-in-charge of the police station of any of the three police stations aforementioned or by an officer superior in rank to the Officer-in-charge of the said three police stations to arrest Madhusudanraj Yadav. We have no such information on the record. What is revealed is that when Lingamurthy was apprehended,he disclosed that Madhusudanraj Yadav was likely to visit him and that it was somehow decided to He in wait for him as he was a wanted extremist. We have heard the learned Advocate General and appreciated his concern to which we shall advert a little later, but we have found no legal justification for any decision to have lain in wait to apprehend Madhusudanraj Yadav because there has been no authorisation and the officers who decided to apprehend Madhusudanraj Yadav beyond the police station limits at which there were cases registered against him were not authorised to apprehend him within the limits of Musheerabad police Station. All that is stated by the Inspector General of Police in the counter affidavit is," that Crime No. 44/95 of Police Station Bhupalpalli Warangal District....................This encounter is in consequent to the information received about a meeting by CPI ML Group................the said meeting was conducted under the leadership of State Secretary late Sri T. Madhusudan Raj Yadav and State Committee Members Kurapati Lingamurthy, Vinod along with armed dalams of Warangal District. As such the Warangal police launched a special drive to apprehend the extremists in order to maintain law and order." and again," The records cited supra will establish the movement of the Police officers of Warangal District who were on special duty to apprehend important cadres in the limits of Hyderabad city. Their movements into the city is in pursuit of required offenders." We have already noticed the law. Only such police officer can pursue any person whom he is authorised to arrest. The authorisation in the case of a cognizable offence and its investigation has to come from the officer in charge of the police station or an Officer superior in rank exercising the power of the Officer-in-charge. The above limitations on the police activities by the law are relevant in this particular case for without any authorisation if someone, even if he was a police Officer, acted within the local limits of Musheerabad police station, he committed not only a grave illegality but indulged in some kind of unlawful activity which, if allowed to go on unchecked, some day spell disasters to the system of law in our country. Division of the police system and creation of police stations under the control of a Station House Officer of the officer-in-charge are not only territorial divisions for the smooth police administration but is part of the entire criminal administration of justice by territorial divisions of the State into session divisions and sub-divisions of the session divisions, metropolitan areas and the Courts of Judicial Magistrates and their local jurisdictions. Such divisions are essential also for ensuring that a person, who is arrested by the police, is produced before a Court of a Magistrate within the time stipulated under Article 21 of the Constitution of India so that the proceedings as contemplated Under Section 167 of the Code of Criminal Procedure are taken up and followed strictly when investigation is not completed in 24 hours as fixed by the said Article of the Constitution as well as Section 57 of the Code of Criminal Procedure. We have no manner of doubt, however, that in cases where alleged offenders are sought to be apprehended beyond the local limits of the police station where the cognizable offence is registered against him, only such officers can act who are authorised by the competent person under the Code of Criminal Procedure to arrest without warrant and any other person doing it shall be acting without any authority of law. Proceeding on the assumption that the officers who decided to lie in wait to apprehend the deceased Madhusudanraj Yadav had some sort of authority to arrest him and assuming in favour of the respondents that they had justification to apprehend him as it was necessary for the maintenance of law and order in the District Warangal, we notice, however, that Madhusudanraj Yadav has met his death at their hands and the only report about his death is the one recorded as Crime No. 150/95 of Musheerabad police Station. According to the First Information Report, it was he who committed the offence of interfering with the discharge of duty of the informant and others who had come to arrest him. He allegedly grappled with them, wriggled away, took out his revolver and fired at them with the intention to kill them and in self-defence they returned the fire resulting in his instantaneous death. In the scuffle one constable received injuries. In all these Madhusudanraj Yadav received several bullet injuries and one constable received some injury obviously not caused by a fire-arm. Do we have the law that a group of police personnel will report that they were making arrest of a person who attempted to evade the arrest and since in his attempt to evade the arrest he used force, they returned the force and caused his death and the law would accept the statement and sanctify the end of a life in accordance with the procedure prescribed by law ? We have already noticed the guarantee under Article 21 of the Constitution of India and also the words "procedure established by law" are not ineffective and lifeless but are expressions of the faith of the people who have sanctioned interference with the life of a person only by a procedure which is reasonable, fair and just. Indian Penal Code has defined 'culpable homicide' as follows:
"Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
It is difficult even to imagine that Police Officers who used fire-arm to hit at the body of Madhusudan Raj Yadav were not aware that by such act they were likely to cause his death. Of course, what they did had a justification or not and, although falling within the definition of an offence, the act by them is excusable or not are matters which shall be dealt with but only when the truth or otherwise of their plea is tested in accordance with law. It will neither be correct nor proper at the outset to ignore altogether the act of the commission of the offence and not to register a case at all of a homicide at the hands of the police personnel who allegedly fired at Madhusudanraj Yadav. We have given our anxious consideration to the matter before us and we see good reasons to hold at this stage that on the statement of the same very police personnel who have alleged that Madhusudanraj Yadav fired at them but caused no injury by the fire-arm, and that they fired at him and as a result, Madhusudanraj Yadav got fatal injuries, a case should have been registered and investigated in accordance with law by the competent authorities. We are not impressed, however, by the demand of the petitioner for appointment of a Commission of Inquiry nor are we impressed by the appointment of a Commission by the Government of the State of Andhra Pradesh. There can hardly be a proper recording of evidence or proper approach to the problem if witnesses and the persons who know about the occurrence are left at their will to report to the Commission and give evidence. What factors will work and deter people who honestly may like to depose, however, are matters of conjecture and we do not wish to venture into it. All that we propose to state on this at this stage of proceeding is that any Commission of Inquiry is never a proper and adequate substitute for a fair and impartial investigation of the offence and a charge brought to the Court by a competent agency so that Court has all informations available and the court is in a position to judge about the truth or otherwise of the allegations of the prosecution as well as the defence. We do share the concern, however, of the petitioner that it is high time that Section 30 of the Protection of Human Rights Act is invoked in the State of Andhra Pradesh as well as steps are taken for appointment of a State Commission so that the people may have some forum where they can go with their reports and grievances of violation of Human Rights as defined under the said Act and there is some mechanism of redressal which is independent and fair operating in the State. Before, however, Sessions Judges are empowered to act as Human Rights Courts and before however, other steps are taken to introduce in the State an independent system for the protection of human rights, the normal law must take its course and if nothing else is possible to do, a case is registered and is investigated by an independent and impartial agency.
12. The learned Advocate General has urged and rather strenuously that when the lives of the many innocent people are at the mercy of the outlaws who have chosen to give them some respectable names like the outfit of which Madhusudanraj Yadav was the General Secretary, and the police of the State is involved and is serious about extending protection to the innocent victims from their atrocities, if the Court will direct for investigation of the case concerning Madhusudanraj Yadav to an outside agency, the State police will have a feeling of demoralisation and shall have apprehensions that even though they act in accordance with law and for the protection of the law-abiding people, they have to face persecutions of being accused in cases for finding out the truth or otherwise of their acts and omissions in connection with the alleged occurrences. We, however, do not see how a law-abiding and law enforcing agency shall even have any apprehensions that a fair and impartial investigation to find out the truth or otherwise of any statement by any one of them shall, in any way, cause any prejudice to them or shall bring to their fair name any cloud. No person in authority who discharges his duties honestly and fairly should ever have any apprehension in placing all that is true about his activities before any other authority. A person, who acts fairly and honestly, can have no fear of being indicted by another fair and honest authority. We have no reason to call the State police unfair or dishonest. But we have good reasons to order that the case of assault by the police personnel upon Madhusudanraj Yadav should be registered and investigated by some independent agency and not by any person connected with the Andhra Pradesh Police. The main reason for our taking this view is the way the counter-affidavit has been filed to justify why a case has not been registered and why the police party which accomplished its task by arresting Lingamurthy decided to lie in wait to arrest Madhusudanraj Yadav. It is a fit case, in our opinion, in which a direction be issued to the Government of the State of Andhra Pradesh to give sanction and accordingly entrust the case to the Central Bureau of Investigation and direction is issued to the Central Bureau of Investigation through the Central Government i.e., Union of India represented through the concerned Secretary in the Ministry of Home for registering and investigating the case of the alleged assault resulting in the death of Madhusudanraj Yadav. The Director General of the Central Bureau of Investigation is directed to appoint a team of officers, if necessary, to investigate the case. The State Government and the Director General of Police, Government of Andhra Pradesh, are directed to fully co-operate with the investigation. We order accordingly.
13. The Central Bureau of Investigation is directed to submit all reports of the investigation to the Chief Metropolitan Magistrate, Hyderabad. Since the case involves the allegations of the violations of human rights, we direct no unreasonable delay should be made and the charge-sheet or final report, if any, be filed as expeditiously as possible, preferably within a period of three months as prescribed Under Section 167 of the Code of Criminal Procedure.
14. The writ petition is accordingly disposed of.