@JUDGMENTTAG-ORDER
Honourable Sri Justice Samudrala Govindarajulu
1. These two criminal revision petitions are filed by two accused persons who are impleaded by the II Additional Sessions Judge, Kurnool at Adoni by order dated 04.06.2012 in S.C. No.63 of 2009. This case is a most horrible offence of attacking one group of persons against another group of persons resulting in 11 deaths. After completing investigation, the police filed charge sheet against 46 persons for punishing them for the offences under Sections 147, 148, 324, 326, 307, 302/ 149 I.P.C and Sections 3, 4 and 6 of the Explosive Substances Act, 1908 and Section 25(1)(B)(b), 27 of the Indian Arms Act, 1959. Out of the said accused, case was split up against 7 of them and rest of the case was committed to the Sessions Court for trial. When trial was going on, the lower Court passed the impugned order. Prosecution evidence was completed and the matter was coming up for examination of the accused u/s 313 Cr.P.C. At that stage, some dramatic incident had happened in the lower Court. On 04.06.2012 at about 11.10 A.M the lower Court called the Sessions Case. All the accused and their 5 defence counsel turned up in Court. At that time, D.T.D.C courier person entered into the lower Court hall and gave an envelop addressed to the lower Court. The lower Court opened the cover in open Court and came to know that it was copy of an anonymous petition sent by ''some witnesses''. Contents of the said letter is to the effect that the lower Court was not taking steps in this case u/s 319 Cr.P.C even though there is sufficient material is against the revision petitioners viz., Kotla Hari Chakrapani Reddy and Cherukulapadu Narayana Reddy.
2. The lower Court noted that it did not take note of contents of the said anonymous petition; but during the course of preparation of examination of the accused u/s 313 Cr.P.C that Court went through the entire prosecution evidence and particularly evidence of P.Ws. 1 to 4 for taking steps u/s 319 Cr.P.C against the revision petitioners herein.
3. It is contended by the senior counsel appearing for the petitioners that the dramatic incident of bringing an envelop addressed to the Court by a courier boy when the case is called in the lower Court, is all stage managed and artificial and that the lower Court should not have taken serious note of contents of the anonymous petition. The Public Prosecutor also contended that the way in which the lower Court acted on an anonymous petition sent through courier service, is unwarranted. But this Court is of the opinion that irrespective of genesis in the lower Court for invoking Section 319 Cr.P.C, it has to be seen whether the said provision is properly invoked by the lower Court in proper manner in the presence of proper material on record. According to the lower Court, there is sufficient material on record in the evidence of P.Ws 1 to 4 to invoke Section 319 Cr.P.C against the revision petitioners herein. For reasons which came to the forefront in this case, the prosecuting agency should have in all fairness filed petition in the lower Court u/s 319 Cr.P.C for proceeding with the case against the revision petitioners also. But, the Additional Public Prosecutor who conducted trial in the lower Court did not come forward with any such petition muchless with any such request in the lower Court at any time after examination of P.Ws 1 to 4. Even though the prosecution party i.e., relations of the deceased as well as the injured could have taken separate steps in this regard to implead the revision petitioners for facing charges in this case during trial in the lower Court, they have not also come forward with any such steps, for reasons best known to them. Instead, they have resorted to sending petition to higher Courts marking copy of the same to the lower Court. It appears that it is their grievance that the investigating agency colluded with the revision petitioners in deleting their names from the charge sheet in an illegal manner.
4. Be that as it may, there is no dispute that names of the two revision petitioners find place in F.I.R itself as the person who were physically present at the scene of offence and exhorted, instigated and abetted the other accused for killing leaders of the opposite group and also to kill the persons whoever obstruct the accused or who come to the rescue of the targets. Evidence of P.Ws 1 to 4 is also to the same effect in Court; and the said evidence in Court is also in accordance with their respective statements recorded by the investigating officer during investigation u/s 161(3) Cr.P.C. It is only after noticing contents of the said evidence, the lower Court took steps by issuing summonses to the revision petitioners for facing charges in the Sessions Case along with the other accused. In the light of the evidence on record, there is every possible reason to find that the revision petitioners also participated in commission of the offence. In case evidence of P.Ws 1 to 4 is to be believed, the lower Court has to necessarily find the two revision petitioners herein guilty of the charges. There is sufficient evidence on record to show that the revision petitioners also participated in commission of the offence. But, at the same time finding them guilty or otherwise depends on believing evidence of P.Ws 1 to 4 coupled with defence evidence on special defence pleas that may be put forward by the revision petitioners during their defence evidence.
5. Senior counsel for the revision petitioners as well as the Public Prosecutor contended that even though names of the revision petitioners find place in F.I.R as accused persons who were physically present at the scene at the time of offence and participated in commission of the offence proper, their names were deleted by the Investigating Officer after obtaining permission from the Superintendent of Police, accepting their plea of alibi. The public prosecutor stated that the revision petitioners put in two petitions in writing to the investigating officer putting forward the pleas of alibi and that after enquiry the investigating officer submitted report to the Superintendent of Police, Kurnool on the pleas of alibi of both the revision petitioners and that the Superintendent of Police, Kurnool by memo dated 18.08.2008 permitted the investigating officer to delete names of the two revision petitioners from this case. Originally in F.I.R, the revision petitioners herein are named as A-1 and A-2 in this crime. The offence took place within the limits of Gonegandla Police Station of Kurnool District. It is plea of Kotla Hari Chakrapani Reddy/A-1 that on 17.05.2008 he was at Mysore on his way to Ooty. It is plea of Narayana Reddy/A-2 that on 17.05.2008 he was at his house located in river view colony, Kurnool by 3.00 A.M. Even though both the revision petitioners were named as A-1 and A-2 in F.I.R, the investigating officer did not take them into custody and interrogate them and record their statements. Instead, he received two separate petitions from the said persons and began making enquiry into contents of those petitions. When this Court queried the public prosecutor whether there is any procedure prescribed by any law for the investigating officer to receive any petitions from accused persons for the purpose of enquiry, the public prosecutor categorically stated that there is no such procedure prescribed by any law. The investigating officer instead of following the prescribed and established procedure as per Cr.P.C, digressed and went astray in investigation by receiving petitions from prime accused persons and began making enquiry in order to give favourable report of clean chit in their favour. The Superintendent of Police, Kurnool readily accepted the so called report of enquiry of the investigating officer who is the Deputy Superintendent of Police and gave directions to him to delete names of A-1 and A-2 in this case. This Court is of the opinion that this is nothing but mockery of procedure during investigation.
6. In case the investigating officer took the revision petitioners who were A-1 and A-2 in F.I.R into custody and recorded their statements during their interrogation, in which they pleaded alibi, then it is open to the investigating officer to proceed as per prescribed procedure in Cr.P.C to make investigation into the plea of alibi put forth by the said accused during interrogation. After completing investigation, it is for the investigating officer to submit final report to the Magistrate in accordance with Section 173(2) Cr.P.C. In the final report, it is open to the investigating officer to mention his conclusions on the evidence collected during investigation and to show names of the accused who are proposed to be charged and names of the accused who are proposed to be deleted, in which event it is for the Magistrate to take decision as to cognizance of the offences u/s 190(1)(b) Cr.P.C against the persons who are arrayed as accused initially. Without placing evidence collected during investigation and conclusions of the investigating officer before the Court/Magistrate, it is not for the investigating police officer and for the Superintendent of Police to delete any accused from the case unilaterally. After investigation, in case the investigating officer finds that plea of alibi of the revision petitioners is correct, then Section 169 Cr.P.C provides for release of such accused persons in case they are in custody, after obtaining bond from such accused person. Release of an accused person u/s 169 Cr.P.C is ultimately subject to jurisdiction of the Magistrate u/s 190(1)(b) Cr.P.C of taking cognizance of the offences against the persons who are named in the charge sheet and who are not named in the charge sheet and who are proposed to be deleted by the investigating agency.
7. The public prosecutor stated that there is no provision in law for deleting an accused person from the case by the police officers, either the investigating officer or Superintendent of Police of the district concerned and that it is for the investigating officer to place all the material before the Magistrate after investigation and seek decision of the Magistrate as to taking cognizance or not of an offence against a particular accused person. Without there being judicial decision on cognizance, no police officer can unilaterally delete or direct deletion of an accused person from a case. If it is allowed to do so, then it would lead to despotic and tyrannical results, which are unsafe to the society and not provided by rule of Law.
8. In case the investigating officer comes to the conclusion after collection of evidence during investigation that a particular accused person is not involved in commission of the offence and his name was unnecessarily or wrongly included as an accused person in the case, then while reporting the same to the Magistrate in his final report, the investigating officer is under legal obligation to inform the same to the first informant/defacto-complainant about his proposal to refer the case in so far as the said accused is concerned, giving notice of reference of the case in so far as the said accused, before filing final report into Court. In this connection, a reference to the Andhra Pradesh Police Manual also becomes relevant. Though police manual has no force of law, it serves as guidance to the police officers and the police personnel in day-to-day performing of their duties as such. Order No.487-3 contained in Part-I Volume-II of the Andhra Pradesh Police Manual at Page-494 relating to referred reports reads:
When a final report is sent to the magistrate the SHO shall inform the complainant about the action. The magistrate also shall send notice to the complainant directing him to show as to why the report should not be accepted. Before acting on the referred report, the magistrate shall hear both the police and complainant. On the orders of magistrate, the aggrieved party can go to the higher courts for revision.
This provision is applicable not only to a case where the entire case against all the accused is referred, but also to a case where the case relating to some only out of all the accused is referred. After final report is filed by the investigating officer u/s 173(2) Cr.P.C, then it is for the Magistrate to apply his/her mind to the facts stated in the final report and to the oral and documentary evidence collected during investigation and come to a conclusion regarding taking cognizance of the offence against any accused u/s 190(1)(b) Cr.P.C. Before taking such decision on a final report contained in referred charge sheet in so far as a particular accused is concerned, the Magistrate is expected to give notice to the defacto-complainant/1st informant in Form No.52 of the Criminal Rules of Practice and Circular Orders, 1990. The said Form No.52 is as follows:
FORM No.52
Notice to Complainant
[Section 173 or 202, Code of Criminal Procedure]
In Referred Case No...................... of 19................
To...................................
Take Notice that the complaint preferred by you under Sec............ of the Indian Penal Code/Act No. of is referred by the Police as ........................................ and that if you dispute the correctness of the finding of the Police, you should appear before this Court....................... within.................. days from this day.
Day of.......................... 19..................
Magistrate.
Such notice is liable to be issued by the Magistrate not only in cases where the entire case is referred by the investigating officer but also in cases where the investigating officer refers or proposes to refer the case in respect of some only out of all the accused or deletes/proposes to delete some of the accused from the case.
9. Without following the above procedure prescribed by law, investigating officer in this case as well as Superintendent of Police, Kurnool District took unilateral decision to delete the revision petitioners who were A-1 and A-2 originally from the case. During trial before the lower Court, the investigating officer as P.W-41 in cross-examination admitted that in the original report Ex.P-1 as well as in printed F.I.R Ex.P-48 names of the revision petitioners are shown as A-1 and A-2 and that they were not included as accused persons in the charge sheet as during the course of investigation no prima facie evidence came forth against the revision petitioners and therefore their names were eliminated from the charge sheet. He admits "I have not submitted the detailed report as to why the names of those two persons have been eliminated. I did not give any detailed reasoning for eliminating their names. It is simply mentioned in the charge sheet as per the orders of the Superintendent of Police, Kurnool, the names of these two persons have been deleted". This procedure adopted by the investigating officer and the Superintendent of Police is unknown to criminal law and is contrary to the prescribed criminal procedure as indicated above.
10. In these circumstances and in the light of oral evidence of P.Ws 1 to 4 in Court as well as basis in F.I.R and statements of P.Ws 1 to 4 given to the investigating officer u/s 161(3) Cr.P.C, there is sufficient evidence against the revision petitioners which may lead to their conviction, in case it is believed. The impugned order of the lower Court is in accordance with Michael Machado V. Central Bureau of Investigation 2000 CRI. L.J. 1706(1) and
11. In the result, both the criminal revision petitions are dismissed.
12. The Registrar is directed to communicate this order to the Director General and Inspector General of Police, Andhra Pradesh, Hyderabad with instructions to circulate the same to all the investigating police officers in the State. The Registrar is also directed to place this order before My Lord The Chief Justice for obtaining orders for circulation of this order to all the Judicial Officers in the State.
In this connection, a reference to the Andhra Pradesh Police Manual also becomes relevant. Though police manual has no force of law, it serves as guidance to the police officers and the police personnel in day-to-day performing of their duties as such. Order No.487-3 contained in Part-I Volume-II of the Andhra Pradesh Police Manual at Page-494 relating to referred reports reads:
When a final report is sent to the magistrate the SHO shall inform the complainant about the action. The magistrate also shall send notice to the complainant directing him to show as to why the report should not be accepted. Before acting on the referred report, the magistrate shall hear both the police and complainant. On the orders of magistrate, the aggrieved party can go to the higher courts for revision.
This provision is applicable not only to a case where the entire case against all the accused is referred, but also to a case where the case relating to some only out of all the accused is referred.
