Andhra HC (Pre-Telangana)
Dr. Eunice Lalnunmawii Chawngthu, Aged ... vs 1.The State Of Telangana, Rep. By Its ... on 2 August, 2018
Equivalent citations: AIRONLINE 2018 HYD 247
HONBLE THE CHIEF JUSTICE SRI THOTTATHIL B. RADHAKRISHNAN AND HONBLE SRI JUSTICE V.RAMASUBRAMANIAN
Writ Appeal No.925 of 2018
02-8-2018
Dr. Eunice Lalnunmawii Chawngthu, Aged 35 years, Flat No.F5, II Floor, Adarsh Vihar Apartments, Adarsh Nagar, Hyderabad-500
1.The State of Telangana, Rep. by its Prl. Secretary, Home, High Court at Hyderabad 2. The Circle Inspector, Saifabad Polic
3. The Commissioner of Police, Basheerbagh, Hyderabad-500 029 Respondents/Respondents
Counsel for the Appellant:Appearing in person
Counsel for Respondents:Mr. S.Sarath Kumar,
Spl. Govt. Pleader appearing on
behalf of Addl. Advocate General
(Telangana)
<Gist:
>Head Note:
? Cases referred:
1. (2013) 14 Scale 209
2. 2017 SCC Online SC 86
3. 2013 (5) CTC 310
HONBLE THE CHIEF JUSTICE
SRI THOTTATHIL B. RADHAKRISHNAN
AND
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN
Writ Appeal No.925 of 2018
Judgment: (per V.Ramasubramanian, J.)
Not satisfied with a limited direction issued by the
learned single Judge in a writ petition filed by her, the writ
petitioner has come up with the above writ appeal.
2. Heard the appellant appearing in person and Mr.
S.Sarath Kumar, learned Special Government Pleader
appearing on behalf of the learned Additional Advocate
General (Telangana).
3. The appellant herein filed a writ petition in
W.P.No.8697 of 2018, originally praying for certain reliefs.
The reliefs sought for by the petitioner in her writ petition as
it was originally filed, read as follows:
Hence it is prayed that this Honble Court may be pleased
to issue a Writ of mandamus whereby the respondents may
be directed to submit CCTV camera footage of Saifabad
Police Station for 13-3-2018 from 7 p.m. to 11 p.m. today to
this Honble Court, to escort the petitioner back into her
place of residence today, with the same being confirmed by
the petitioner in person before this Honble Court within
a specific time period, to provide security to the petitioner,
to register an FIR based on the petitioners complaint dated
12-3-2018 to the Circle Inspector, Saifabad, and 13-3-2018
to the Commissioner of Police under the correct provision of
law, to arrest the accused immediately, to submit their
charge-sheet within one week, to direct the Court
concerned to dispose the matter within one month, to locate
and return the petitioners movables to her, to submit
copies of FIRs registered against the petitioner by the
2nd respondent from 2017 to date, and to pass such other
order or orders as it may deem fit and proper in the facts
and circumstances of the case.
4. It appears that the writ petition was filed on
14-3-2018 and the same was listed before a learned single
Judge of this Court for orders as to admission on 15-3-2018.
It was directed to be posted on 16-3-2018. On 16-3-2018,
it was adjourned to 19-3-2018 and later to 22-3-2018.
5. It appears that on 22-3-2018, the appellant made
a mention before the learned single Judge to take the writ
petition out of turn. The appellant seems to have said that
a letter had also been circulated to the Registry to the said
effect. But the learned single Judge, before whom the matter
was listed on 22-3-2018, expressed the view that the letter
circulated to the Registry was not placed before him. At that
stage, the appellant appears to have requested the learned
single Judge to list the matter before another Bench.
Therefore, the learned single Judge, before whom the writ
petition was listed on 22-3-2018, passed the following order:
When a mention was made for taking up the matter
out of order, this Court earlier directed the petitioner to file
a letter before the Registry.
Today, the petitioner stated that such a letter has
been filed before the Registry and again made a mention to
take up the matter out of order.
This Court expressed that as and when the Registry
places the letter before this Court, appropriate decision will
be taken in the matter.
At this stage, the petitioner insisted that the matter
may be directed to be listed before another Bench for
disposal.
Having regard to the facts stated above, the Registry
is directed to list this matter before another Bench, after
obtaining necessary orders from the Honble The Acting
Chief Justice.
6. Thereafter, the writ petition was listed before another
learned Judge on 27-3-2018. On the said date, the learned
Judge seems to have directed the Government Pleader to
preserve the footage of the CCTV camera of Saifabad Police
Station relating to the period from 7 p.m. to 12 p.m. on 13-3-
2018.
7. Thereafter, the appellant filed an application for
amendment of the prayer made in the writ petition and the
amendment was allowed on 02-4-2018. The amended prayer
in the writ petition reads as follows:
Hence it is prayed that this Honble Court may be pleased
to issue an appropriate Writ, order or direction, one in the
nature of a Writ of mandamus directing the 3rd respondent
to produce the unedited CCTV footage of all the cameras in
the Saifabad Police Station for 12-3-2018 from 7 p.m. to
12 p.m. to the satisfaction of this Honble Court, failing
which the same may be sent for expert analysis, also to
produce the CCTV footage of the Saifabad Secretariat
traffic signal point for 12-3-2018 from 9 p.m. to 12 p.m.,
the petitioners movables including her MacAir laptop, her
car keys, her files, her Lenovo mobile be traced and
returned to be petitioner forthwith, that all the accused be
arrested immediately, that the 3rd respondent be directed to
provide the petitioner an arms licence, provide her security
and escort her back to her place of residence today as she,
a single lady from the minority S.T. community is
shelterless, extremely vulnerable and faces a serious threat
to her life from the accused and to register a case against
the 2nd respondent under Section 164A of IPC for wilfully
failing to perform his duties, and to direct the CBI to
conduct a thorough investigation, to be completed within
a fixed time, and pass such other order or orders as this
Honble Court may deem fit and proper in the facts and
circumstances of the case.
8. After the amendment was ordered, the writ petition
was posted to 17-4-2018 and thereafter to 01-5-2018.
On 01-5-2018, the learned Judge allowed the writ petition, on
the basis of a statement made by the learned Government
Pleader, directing the Investigating Officer to complete the
investigation and to file a final report into Court within two
months. Not satisfied with the said order, the appellant has
come up with the above appeal raising various grounds such
as
(i) that under Section 228A(1) IPC, the name or identity
of a lady victim should not have been revealed or made
public, but the learned Judge failed to take note of this;
(ii) that when the Media published the name of Kathua
rape victim the Delhi High Court awarded a compensation of
Rs.10 lakhs, to be paid by each of the Media houses;
(iii) that the learned single Judge did not apply his mind
when he refused to acknowledge the crimes committed by the
respondents;
(iv) that the learned Judge failed to appreciate that
Crime No.103/2018 was registered only on a specific
direction issued by this Court in W.P.No.7150 of 2018;
(v) that the learned Judge neglected to see the Affidavit
of the appellant to call upon the Adarsh Nagar Association to
give their version on the conduct of the residents of the
Apartment Complex;
(vi) that the learned single Judge has completely
neglected Section 166A of IPC;
(vii) that the learned single Judge failed to note that
public servants framed an incorrect document and
deliberately disobeyed the law with intent to cause injury,
thereby committing the offences punishable under
Sections 211, 217, 218, 220, 166 and 167 IPC;
(viii) that the learned Judge failed to provide Police
protection, similar to the one ordered by the Supreme Court
in the case of a lady advocate by name Deepika Rajawat;
(ix) that the learned Judge failed to take note of the
heinous conduct of the respondents in avoiding the
furnishing of the CCTV footage and allowing a counter
complaint to be registered against a lady victim who is also a
member of the S.T. community and in diluting the offences
for which First Information Report (FIR) in Crime
No.117/2018 was booked;
(x) that the failure of the respondents to find out the
Jio Mobile Phone, Lenovo Laptop, MacAir Laptop, a high-end
Apple Laptop etc of the appellant was also not taken note of
by the learned Judge; and
(xi) that therefore this Court should allow the appeal
directing the Registry to remove the name of the appellant,
wherever it is mentioned and issue a direction to the Central
Bureau of Investigation (CBI) to investigate into her complaint
and arrest the accused and to provide Police protection to
her.
9. On 11-7-2018, when the above writ appeal came up
for orders as to admission, it was represented by the learned
Special Government Pleader that the investigation was almost
complete and that the filing of a final report before the
competent Court was under way. While recording his
statement and adjourning the case, this Court passed the
following order on 11-7-2018:
Learned Special Government Pleader appearing for
the learned Additional Advocate General for the State of
Telangana submits, in answer to our query, that he has
instructions that the investigation is almost complete and
the presentation of the final report before the competent
criminal court is under way.
Therefore, we require the learned Government
Counsel to mention to us by the next date of hearing as to
whether the final report has been submitted by that day or
not. In the meanwhile, he will also obtain instructions as to
what possible protective cover or efforts would be extended
by the Police to defuse the appellants apprehension of
threat to her life and limb.
Post on 19-7-2018.
10. On 19-7-2018, this Court passed an order directing
the Investigating Officer to be present in Court for the
purpose of explaining certain things. The order dated
19-7-2018 reads as follows:
The Investigating Officer, who has placed the final
report pursuant to Crime No.117 of 2018 of the Saifabad
Police Station before the First Additional Chief Metropolitan
Magistrate, Nampally, is directed to be present when this
case is called tomorrow along with all records to explain
any matter which this Court may deem it appropriate to
ask.
Post on 20.07.2018 at the top of the list.
11. On 23-7-2018, the case diary in Crime No.117/2018
was produced. A copy of the final report filed by the
Investigating Officer before the First Additional Chief
Metropolitan Magistrates Court was also produced before us.
Thereafter, we heard arguments on both sides.
12. We have extracted in the first portion of this order,
the prayer with which the appellant originally came up, in the
writ petition. We have also extracted the prayer as it was
amended on 02-4-2018. Since the reliefs sought in the writ
petition are multiple but not necessarily consequential to
each other, it would be better to segregate the amended
prayer in the writ petition into different parts. The different
limbs of the amended prayer made in the writ petition are:
(i) to direct the Commissioner of Police to produce the
unedited CCTV footage of all the cameras in Saifabad Police
Station, recorded from 7 p.m. to 12 p.m. on 12-3-2018;
(ii) to direct the Commissioner of Police to produce the
CCTV footage of the Saifabad Secretariat traffic signal point
relating to the period from 9 p.m. to 12 p.m. on 12-3-2018;
(iii) to direct the respondents to trace and return to the
petitioner, her moveables including the MacAir Laptop, car
keys, files and Lenovo Mobile;
(iv) to direct the Commissioner of Police to provide the
appellant with a licence to carry arms and to provide her
security and escort her back to her place of residence;
(v) to direct the respondents to register a case against
the Circle Inspector, Saifabad, who is the Investigating
Officer, for wilfully failing to perform his duties; and
(vi) to direct the CBI to conduct a thorough investigation
to be completed within a time frame.
13. In order to see whether the appellant was entitled to
any or all of the reliefs prayed for in the writ petition, it may
be necessary to look into her averments. The averments on
the basis of which the appellant came up with the writ
petition W.P.No.8697 of 2018, as seen from the Affidavit of
the appellant were as follows:
(i) that on a particular day (date not mentioned) at
about 6.30 p.m., when the appellant returned to her place of
residence, after representing the papers in two other writ
petitions that she had filed, she was attacked by a female
wearing a burkha;
(ii) that the lady who attacked her when she parked her
car and stepped out of the same, used to visit an advocate by
name Sreelakshmi in the third floor of the same building;
(iii) that another female wearing an orange saree with
her face covered by a handkerchief and one Mrs. Om Prakash
Aggarwal came down from the third floor and headed towards
the appellant;
(iv) that two men who had covered their faces with
handkerchiefs also appeared from the first floor and headed
towards the petitioner;
(v) that they all tied up the petitioner with a long rope
held by the female in burkha;
(vi) that after tying the petitioners hands and legs and
blind folding her, they pushed her inside the lift;
(vii) that they took the appellant to the terrace and
tortured her and was asked to sign blank white papers on
knife point;
(viii) that the petitioner had already filed one more writ
petition in W.P.No.7510 of 2018 seeking the registration of
an FIR for the criminal attack on her life and also for the act
of disconnecting the water supply;
(ix) that after the said writ petition was heard, the
accused proceeded to block the appellants car parking area
with cubic stones and bags filled with garbage;
(x) that on 10-3-2018, the aforesaid ladies and their
agents captured and arrested the appellant and her workers
who came to install a CCTV camera;
(xi) that though the appellant complained about the
same, the respondents ignored it;
(xii) that due to the deliberate inaction of the
respondents on the previous occasion, the accused became
emboldened to attack the appellant and kidnap her in
an auto on 12-3-2018;
(xiii) that the terrified appellant jumped out of the
running auto outside the Saifabad Police Station and
managed to enter it;
(xiv) that in the auto-rickshaw, a woman in burkha sat
on the right hand side and another male goonda sat to the
right side of that lady;
(xv) that the auto-rickshaw was driven by an elderly
Muslim wearing a white cap;
(xvi) that when the appellant entered the police station
she saw the Assistant Commissioner of Police who was about
to leave;
(xvii) that the time was 9.30 p.m. and the appellant
wrote a short complaint and was sent for medical
examination at Osmania Hospital at about 10.30 p.m.;
(xviii) that the appellant had to spend a night at
a friends place and reported the matter to this Court when
W.P.No.7510 of 2018 came up for hearing;
(xix) that the appellant was later informed that a printed
paper bearing her signature was pasted on the main door of
her apartment as though she had vacated the flat;
(xx) that the flat belonged to the appellant who had no
intention of leaving it; and
(xxi) that it was not possible to believe that the
appellant who is the owner of the apartment, reached her
place of residence between 6.30 p.m. and 7 p.m. from the
High Court, removed all her belongings and thereafter jumped
out of a moving auto outside the Saifabad Police Station at
9.30 p.m. with her hands and legs tied up and her mouth
gagged.
14. Now it has to be seen by this Court as to whether
the aforesaid averments were sufficient for the learned Judge
to have granted all the limbs of the prayer made by her in her
writ petition, out of which the present appeal arises. The first
limb of the prayer made by the appellant in her writ petition
was to direct the Commissioner of Police to produce the
unedited CCTV footage of all the cameras in the Saifabad
Police Station, recorded from 7 p.m. to 12 p.m. on 12-3-2018
and also to produce the CCTV footage of Saifabad
Secretariat traffic signal, recorded from 9 p.m. to 12 p.m. on
12-3-2018. Though the appellant has not explained as to why
she was asking for the CCTV footage at two places,
we presume that the appellant wanted to establish the factum
of her being kidnapped in an auto-rickshaw and the factum of
her encounter in the police station with the Police. But the
complaint lodged by her on 12-3-2018 has already been
registered as an FIR in Crime No.117/2018 by the Saifabad
Police for alleged offences under Sections 342, 509 and 323
IPC. Out of them, two offences are cognizable and bailable
and one is non-cognizable but bailable.
15. Today, the Investigating Officer has filed a final
report before the First Additional Chief Metropolitan
Magistrate, referring the complaint as false. The final report is
actually dated 13-7-2018.
16. The CCTV footage that the petitioner is seeking
could perhaps be a piece of evidence in support of her claim
that she was tied up, bundled into an auto-rickshaw,
tortured, kidnapped and wrongfully confined. This piece of
evidence today may not be of any use to the appellant, since
a final report has already been filed.
17. If the appellant is unhappy about the final report,
she is entitled in law to file a protest petition. Upon receipt of
a protest petition, there are 3 options available to the Judicial
Officer. The first is that he may accept the Final Report and
may reject the Protest Petition. The second option is that he
may accept the Final Report but treat the Protest Petition as a
complaint and proceed in accordance with Section 200 and
202 of the Code. The 3rd option is that he may accept the
Protest Petition and reject the Final Report and take
cognizance under Section 190(1)(b) of the Code. The law on
this aspect is well settled as can be seen from the decision of
the Supreme court in B.Chandrika vs. Santhosh .
18. In law the Magistrate is not bound to accept the
final report submitted by the police officials. He can even
order further investigation, under certain circumstances.
Sub-section (8) of Section 173 Cr.P.C makes it clear that
nothing contained in the other parts of the section shall be
deemed to preclude further investigation in respect of an
offence, after a report under sub-section (2) has been
forwarded to the Magistrate. In Amrutbhai Shambhubhai
Patel vs Sumanbhai Kantibhai Patel , the Supreme court,
after taking note of the amendment to section 173 pursuant
to the recommendation of the Law Commission of India in its
41st Report, pointed out that it is no longer res integra that a
Magistrate, if exigent to do so, to espouse the cause of justice,
can trigger further investigation even after a final report is
submitted under Section 173(8).
19. In fact, the offences for which FIR was registered at
the instance of the appellant were under Chapters XVI and
XXII that may be prosecuted by the State. If after the
appellant objects to the final report and have a further
investigation conducted under Section 173(8) Cr.P.C., she
may even seek permission to assist the prosecution, in the
event of the fresh final report disclosing the commission of
any offence. Therefore, at this stage, it may not be open to the
appellant to seek the CCTV footage, which may form part of
the evidence that the concerned Magistrate is supposed to
look into.
20. The second limb of the prayer made by the
petitioner in her writ petition was to trace her moveables
including car keys, Laptops, Lenovo Mobile etc. But a copy of
the complaint given by the appellant on 12-3-2018 at
Saifabad Police Station, does not state that these moveables
were either lost or taken away by any named person. In fact,
the petitioner has enclosed to the material papers filed along
with the writ petition, a printout of the e-mail sent by her to
the Commissioner of Police on 13-3-2018. Except making
a request in the last paragraph of her mail to the
Commissioner of Police to ensure the return of all her
property including her Lenovo Mobile, the appellant has not
even provided the list of articles allegedly lost. She has also
not stated anything about how the articles went missing or
when and who stole the same. Therefore, we do not know how
the petitioner has made the second limb of the prayer.
21. The third limb of the prayer is to direct the
Commissioner of Police to provide an arms licence to the
appellant. But there is a separate procedure for applying for
licence to carry arms. It is not every complaint of this nature
that will entitle a person automatically to get an arms licence.
Since arms and ammunition cannot be sold across the
counter, the appellant ought to have followed the procedure
prescribed by the Arms Act, 1959 and applied for a licence,
before seeking a mandamus. Hence, this limb of the prayer
could not also have been granted by the learned single Judge.
22. The next limb of the prayer made in her writ petition
was to direct the Police to provide security to her and to
escort her back to her place of residence. In fact, this prayer
was confined to that particular day. The appellant has used
the expression today. But that day has passed long ago.
For the past several months, the appellant who is also
an Advocate and who has cases against her husband,
parents, neighbours, Court staff etc., has been moving
around and also appearing in this Court frequently, without
any problem. Hence, the prayer for providing security and
escort, was also not capable of being not granted.
23. The next limb of the prayer is to register a case
against the Circle Inspector, Saifabad, under Section 166A of
IPC for his wilful failure to perform his duties. But
Section 166A of IPC deals with the offence of a public servant
disobeying a direction under law. In this case, the Circle
Inspector has conducted an investigation and also filed a final
report. The correctness or otherwise of the final report is yet
to be tested by the appropriate forum. Therefore, the question
of directing the registration of a complaint against the
2nd respondent does not arise.
24. The last limb of the prayer of the appellant is to
direct the CBI to conduct a thorough investigation. At the
outset, we should point out that CBI is not a party to the writ
petition. In any case, transfer of investigation to the CBI
cannot be ordered as a matter of routine and merely for the
asking. In K.V. Rajendran v. Superintendent of Police , the
Supreme Court referred to all the earlier decisions in this
regard and summarised the law. It was laid down therein that
the Court could exercise its Constitutional powers for
transferring an investigation from the State Investigating
Agency to any other independent Investigating Agency like
CBI only in rare and exceptional cases. Therefore, the last
limb of the prayer made by the appellant in her writ petition
could not also have been granted by the learned Judge.
25. As we have pointed out earlier, the appellant has
made out certain additional grievances in the writ appeal, one
of which is the publication of her name in the copy of the
judgment. According to her, it is violative of Section 228A(1)
IPC and the orders passed by the Delhi High Court in relation
to Kathua rape victim. We do not know how Section 228A IPC
would apply to a case where the name of the writ petitioner is
printed in the cause title of the judgment delivered in her
case. The mentioning of the name of the party to a litigation
in the copy of the judgment, would not tantamount to the
commission of an offence under Section 228A IPC. In fact, the
Explanation to Section 228A IPC reads as follows:
Explanation.-- The printing or publication of the judgment
of any High Court or the Supreme Court does not amount
to an offence within the meaning of this section.
26. It may be open to a lady in cases which are highly
sensitive, to make a request to the Court to refer her as Mrs X
or Ms X. As and when such requests are made, it may be
open to the Court not to mention the name of the lady or
child but to refer to her as Ms X or Mrs X. But no such
request was made by the appellant before the learned single
Judge or even before us.
27. Therefore, in fine, we find no substance in the writ
appeal and hence it is dismissed. It will be open to the
appellant to work out her remedies before the Court in which
the final report has been filed by the Investigating Officer,
in accordance with the provisions of the Code of Criminal
Procedure, 1973. If the appellant makes a request in writing
to the Registry not to mention her name in the copy of the
judgment, the same may be considered. The interlocutory
applications, if any, pending in this writ appeal shall stand
closed. No costs.
_______________________________________
THOTTATHIL B. RADHAKRISHNAN, CJ.
___________________________
V.RAMASUBRAMANIAN, J.
02nd August, 2018.