1. O.S. No.193 of 2008 was filed by a lady tenant of a flat seeking perpetual injunction against her landlord. The said suit was decreed in her favour. O.S. No.295 of 2008 filed by the landlord for eviction of the said lady tenant was dismissed. Thereafter, on the intervening night of 11th and 12th March, 2011, the tenant, (petitioner in this Writ Petition), rushed to the police station complaining of trespass, physical assault, attempt to rape and forcible eviction by the landlord (3rd respondent in this Writ Petition). The Investigating Officer, who visited the apartment building (scene of the offence) on 12.03.2011, found the petitioner - tenant's belongings strewn on the pavement outside the apartment building. Without even examining the complainant, and having failed even to note the outcome of the two suits, (both of which ended in favour of the tenant), the Investigating officer, evidently at the behest of the then Assistant Commissioner of Police, Gopalapuram Division, prepared a draft final report stating that the complaint "lacked evidence". The Investigating Officer's version, in short, is that the tenant had vacated the apartment on her own volition, and her complaint against the third respondent-landlord of trespass, attempted rape, assault etc lacked evidence or, in other words, the complaint was false. While even an idiot may find this version of the respondent - police officials hard to believe, this Court is called upon to accept that such a conclusion is the justified outcome of an independent, impartial and fair investigation. For reasons stated hereinafter there are justifiable reasons to believe that the Investigating Officer did not impartially investigate the complaint, and the normal course of investigation was derailed only to help the 3rd respondent-landlord, (whose attempts to evict his tenant through the legal process had failed), escape the penal consequences of his having forcibly evicted his inconvenient tenant from his flat which was under her occupation.
2. The petitioner, a house wife aged 32 years, has filed this Writ Petition to declare the failaure of the 1st respondent to take action on her representations dated 14.03.2011 and 18.03.2011 as illegal and arbitrary. The case of the petitioner, in brief, is that the 3rd respondent is the owner of Flat No.402, 4th Floor, Saraswathi Residency, Padmarao Nagar, Secunderabad, of which she was the tenant; she filed O.S. No.193 of 2008 on the file of the Court of the I Junior Civil Judge, City Civil Court, Secunderabad seeking perpetual injunction against the 3rd respondent, and obtained a decree; the 3rd respondent issued a quit notice under Section 106 of the Transfer of Property Act, and filed O.S. No.295 of 2008; the said suit filed by the 3rd respondent was dismissed on the ground that the termination notice was not in accordance with law; while matters stood thus the 3rd respondent came to the flat, (under the occupation of the petitioner), on 11.03.2011 around 2.30 p.m., along with his muscle-men, and hit the petitioner as well as her family members; they threw away the furniture and other articles belonging to the petitioner outside the apartment compound, and took forcible possession of Flat No.402; the complaint lodged by her on 12.03.2011 before the 2nd respondent was registered as F.I.R. No.184 of 2011; as the 2nd respondent did not commence investigation despite five months having elapsed, she filed a representation to the 1st respondent and, as no action was taken on her complaint, she has invoked the jurisdiction of this Court.
3. When this Writ Petition was listed on 07.09.2011, Learned Government Pleader for Home sought one week's time to file a counter-affidavit, and to produce the records. The petitioner's counsel was permitted to take out personal notice on the 3rd respondent by Registered Post Acknowledgment Due. The 2nd respondent filed counter-affidavit dated 13.09.2011 wherein he stated that the investigating officer had visited the scene of the offence, and had noticed that Flat No.402 was closed and vacant; there were some belongings i.e., cot, chairs, beds and other cloth bundles laid beside the main gate on the foot path; nobody was present there to take care of those strewn articles; investigation was completed and, prima facie, the allegations against the accused were not established beyond reasonable doubt; permission was obtained from the Assistant Commissioner of Police, Gopalapuram Division, North Zone, on 18.06.2011 to refer the petitioner's complaint as lacking in evidence; though attempts were made to serve the notice, the petitioner was evading receipt thereof; a final report, under Section 173 Cr.P.C, would be filed shortly; and as there was no evidence to establish the guilt of the accused in the F.I.R, the investigating officer had referred the complaint of the petitioner as lack of evidence.
4. On 19.09.2011, the Learned Government Pleader produced the records on perusal of which this Court noticed that it did not contain the statement of the complainant under Section 161 Cr.P.C. On being asked whether or not the statement of the complainant had been recorded by the investigating officer, Learned Government Pleader for Home sought time to enable the 2nd respondent to file an additional counter-affidavit. In his additional counter affidavit the 2nd respondent would state that, during the course of investigation, the investigating officer had examined the petitioner and other witnesses, and had recorded their detailed statements; the then investigating officer had visited the scene of the offence, and had found some furniture and other articles on the foot path at the main gate of the apartment; he had addressed a letter to the Assistant Commissioner of Police, Gopalapuram Division to accord permission to refer the complaint of the petitioner as lack of evidence; permission was granted by the then Assistant Commissioner of Police, Gopalapuram Division on 18.06.2011; consequent on the transfer of the then investigating officer, he had taken up investigation; and, due to non-availability of the complainant, no notice could be served on her. The additional counter-affidavit also notes that this Court had examined the record, including the C.D. file in Cr. No.184 of 2011, on 19.09.2011 and had found the statement of the complainant (L.W-1) missing; the records revealed that the then investigating officer had examined the complainant, and had recorded her detailed statement on 12.03.2011 itself i.e., on the very date of registration of the F.I.R; the said statement was misplaced; and he was tendering his apology to this Court for misplacing the statement of the petitioner. He would further state that, on the instructions of the Government Pleader for Home, he had immediately examined the complainant (on 11.10.2011), and had recorded her detailed statement; he had also recorded the statement of the daughter of the petitioner and other witnesses; he had finalized the investigation; and an appropriate report, under Section 173 Cr.P.C, would be filed shortly.
5. In his counter-affidavit the 3rd respondent states that he is the owner of Flat No.402. He admits that O.S. No.295 of 2008 filed by him for eviction of the petitioner from the flat was dismissed. He would, however, deny having forcibly dispossessed the petitioner on 11.03.2011 at about 2.30 p.m in association with anti-social elements, or to have torn the petitioner's blouse or to have tried to rape her. He would submit that they did not throw away the furniture and other house hold articles; he is not aware that a complaint was filed before the 2nd respondent on 12.03.2011 against him; he is also unaware whether the petitioner had given a complaint to the 1st respondent or that F.I.R. No.184 of 2011 had been registered by the 2nd respondent against him as alleged; he had never entered the demised premises at any point of time; and he had not committed any illegal acts. He would also state that the petitioner had failed to pay rental arrears of Rs.97,800/- i.e., rent for 15 months and, when he had demanded payment of rent, she had voluntarily vacated the premises without his knowledge; and she had come up with false allegations only with the intention of harassing him.
6. On 18.10.2011 this Court noted that, while the earlier counter-affidavit made no reference to the statement of the petitioner having been recorded, the additional counter-affidavit states that, though the petitioner was examined as early as on 12.03.2011 i.e., on the very day of registration of the F.I.R, the said statement was misplaced; the additional counter-affidavit was silent as to whether the said statement was traced subsequently or what action had been taken in this regard; and, since the affidavits filed were vague, the 2nd respondent should be present on 20.10.2011, along with the entire records.
7. On 20.10.2011 this Court observed that it defied reason that a tenant who voluntarily vacated the flat would, as contended by the Station House Officer, come and give a complaint of trespass and physical abuse by the landlord or file a Writ Petition thereafter. As the Assistant Commissioner of Police was said to have directed closure of the case, and it was the erstwhile investigating officer who was said to have recorded the missing statement of the complainant, this Court directed their appearance on 21.10.2011 at 10.30 a.m., to enable the Court to record their statements. The case diary which was produced earlier was directed to be kept in a sealed cover with the Registrar (Judicial) of the High Court.
8. On 21.10.2011 both the Investigating Officer and the Assistant Commissioner of Police who approved the proposal for closure were present in Court, and their statements were recorded. On being asked whether a draft final report had been submitted to the Judicial Magistrate, the Assistant Commissioner of Police expressed ignorance, and sought to ascertain the position from the Station House Officer. Consequently the statement of the Station House Officer was again recorded. As two home guards had allegedly been deputed to serve a copy of the notice, along with the draft final report, on the complainant they were directed to be present in Court on 27.10.2011 at 10.30 am. This Court also directed the complainant to be present in Court on 27.10.2011 to enable her statement to be recorded. Both the home-guards, who claimed to have been deputed to serve the notice along with the draft final report, were present on 27.10.2011 and their statements were also recorded. The entire records, including the record sheets from the office of the Assistant Commissioner of Police, were retained in the custody of the Court.
9. The documents, submitted by the Assistant Commissioner of Police, are copies of the F.I.R. dated 12.03.2011; a memo addressed by him on 17.03.2011; the draft final report submitted to him by the Inspector of Police, Chilakalaguda on 22.06.2011 which he had approved on 26.06.2011; and the memo issued by him to the earlier Investigating Officer on 18.06.2011. The draft final report refers to the complaint given by the petitioner on 12.03.2011 at 12.30 a.m., regarding the incident which took place on 11.03.2011 at 2.30 p.m. It merely notes that the occupants of the flats had stated that the petitioner, along with her family members, was residing at Flat No.402 for one and half years; they were not paying rent to the house owner because of which the owner had complained against her to the flat owners association; the owner used to attend her house for collecting rent, but she had threatened him with dire consequences; suddenly on the night of 11/12.03.2011 the complainant and her husband had vacated the house without intimation to others; they took away all the furniture, and vessels from the flat; they also kept some un-used furniture and clothes on the foot path of the main gate of the apartment; and, after getting oral instructions from the Inspector of Police, he was referring the case for lack of evidence. I. WITNESSES CAN BE EXAMINED/CROSS-EXAMINED IN PROCEEDINGS UNDER ARTICLE 226 OF THE CONSTITUTION:
10. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because, in considering the petitioner's right of relief, questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. On consideration of the nature of the controversy the High Court can decide that it should go into a disputed question of fact. (Babubhai v. Nandlal1). In a proceeding under Art. 226 of the Constitution the normal rule is to decide disputed questions on the basis of affidavits, but it is within the discretion of the High Court whether or not to allow a person to be examined/cross- examined. Under Art. 226 there is ample power in the High Court to order attendance of a deponent in Court for being examined/cross-examined. Where it is not possible for the Court to arrive at a definite conclusion on account of there being affidavits on either side containing allegations and counter- allegations it would not only be desirable but, in the interest of justice, the duty also of the Court to summon deponents for examination/cross-examination in order to arrive at the truth. If the evidence led by the parties is tested by examination/cross-examination it becomes easier to determine where the truth lies. (Barium Chemicals Ltd. v. Company Law Board2; State of Bombay v. Purshottam Jog Naik3; A.P.S.R.T. Corporation v. Satyanarayan Transports (Private) Ltd., Guntur4; Babubhai1). II. EVIDENCE:
11. On 20.10.2011 Sri B. Anjaiah, Station House Officer stated on oath that he was the in-charge Station House Officer on the date of receipt of the complaint; the statement of the complainant was recorded under Section 161 Cr.P.C. on 12.03.2011, when the complaint was received; the said statement was misplaced; he came to know that the statement of the complainant was misplaced only after receipt of intimation from the Government Pleader for Home regarding the Writ Petition being filed; the Investigating Officer had recorded in Part-I Case Diary that the statement of the complainant was recorded; that is how he came to know that her statement was recorded on 12.03.2011; he had searched for the statement in his office, and also in the office of the Assistant Commissioner of Police to whom the Investigating Officer had forwarded the file; on 12.03.2011 the statement of the watchman of the apartment was recorded; on the same day, statements of the residents of Flat Nos.401, 408, 409 were also recorded; and on 15.03.2011 the statements of two other witnesses were recorded. He further deposed that the entire file was sent to the Assistant Commissioner of Police on 20.05.2011 who accorded permission on 18.06.2011 to file a closure report; they could not send the notice to the complainant because they were not aware of her address; and he had deputed police constables to ascertain the address of the complainant. He, however, contradicted his earlier statement by adding that he was not aware whether any police constables were sent to find out the present location of the complainant.
12. On his being examined on 21.10.2011, Sri B. Anjaiah, Station House Officer, stated that had deputed two process - men Sri Yella Reddy and Sri Srinivas to serve the final report on the complainant in the 1st week of July, 2011; the final report under Section 173 Cr.P.C had not been submitted to the Magistrate till date, as a copy thereof had not been served on the complainant. On being examined again on 31.10.2011 Sri B. Anjaiah, Station House Officer, stated that he had sent the notice to the complainant enclosing thereto the report under Section 173 Cr.P.C. in the 1st week of July, 2011; and he did not collect the notice from the process server though the notice was not served on the complainant.
13. The earlier Investigating Officer Sri K. Venugopal stated on oath on 21.10.2011 that he had received the complaint on 12.03.2011; he had recorded the petitioner's statement under Section 161 Cr.P.C. on 12.03.2011; he had perused the file in the Court, and the file did not contain the statement of the complainant dated 12.03.2011; while the said statement of the complainant under Section 161 Cr.P.C. was available when the entire file was sent to the Assistant Commissioner of Police, Gopalapuram Division on 24/25-05-2011, the said statement had been misplaced; he was transferred to Amberpet Police Station in the end of May, 2011; he was not aware when the said statement was misplaced or as to how it got misplaced; no records are maintained in the police station to show whether or not the statement of the complainant, or others, under Section 161 Cr.P.C. is recorded.
14. Sri S. Chaturvedi, the Assistant Commissioner of Police, (presently the Additional D.C.P. - Task Force) stated on oath on 21.10.2011 that he worked as the Assistant Commissioner of Police, Gopalapuram from January, 2010 to September, 2011; he held additional charge as Assistant Commissioner of Police till 02.10.2011; a proposal was sent to him by the Investigating Officer, with the endorsement of the Station House Officer, Chilakalaguda Police Station, that the matter be closed for lack of evidence; he had perused the entire file, and had then issued proceedings to refer the case as lack of evidence; the statement of the complainant was part of the file when he had approved the proposal for closure of the case for lack of evidence in June, 2011; after issuing the proceedings, the entire file was sent back to the Chilakalaguda Police Station; he was informed in September, 2011 by the Station House Officer that the Writ Petition had been filed; after the counter-affidavit was filed by the Station House Officer, he was informed by him that the statement of the complainant, recorded under Section 161 Cr.P.C, was missing; he had orally instructed the Station House Officer to make efforts to trace the missing statement; the Station House Officer had informed him in the last week of September, 2011 that the statement of the complainant could not be traced.
15. Sri M. Srinivas, Home-guard stated on oath on 27.10.2011 that his duty was to serve summons; on 03.07.2011 Sri Anjaiah, the Station House Officer, had handed over a copy of the notice to be served on the complainant, and had asked him and Sri V. Yella Reddy, home-guard, to serve it on the complainant; he went to the complainant's flat at Saraswathi Residency, Padmarao Nagar on 04.07.2011 at around 11.00 a.m; the complainant was not there and the new tenant, in occupation of Flat No.402, had told them that, after vacating the flat, the complainant was no longer residing there; they had also expressed ignorance of the whereabouts of the complainant; he and the other home-guard had enquired from the watchman, and the security guard of the flats, who told them to go near Jain Mandir at Secunderabad, and enquire there regarding the complainant's whereabouts; at around 12.00 noon they went to Jain Mandir; they did not go inside the temple; they enquired from the people near the temple, whose names they did not record nor do they recollect who these persons were, about the whereabouts of the complainant; these persons expressed ignorance, and asked them to enquire at the jewellery shops nearby; they visited some jewellery shops in Secunderabad; they do not recollect the jewellery shops they went to; and they discharge different duties on different dates. He did not recollect where he went on 1st September. He was also unable to recollect the events which transpired on 1st October, 2011, but was positive that he went to locate the complainant on 4th July. He did not also recollect events which took place either on 3rd of July or on the 5th of July, 2011.
16. Sri V. Yella Reddy, home-guard attached to Chilakalaguda Police Station, stated on oath that Sri Anjaiah, Station House Officer, had called them on 03.07.2011 at 8.00 p.m. asking them to handover a copy of the notice to be served on the complainant; on 04.07.2011, at around 11.00 a.m., they went to Flat No.402; on enquiry a lady had informed them that the complainant was not residing there, as they had vacated the flat; they came down and asked the security-guard who also informed them that the complainant had left the flat, and had shifted residence to Secunderabad; there was only one security guard at Saraswathi complex with whom they had caused enquiry; the security guard had asked them to enquire at Jain Mandir, Secunderabad; they enquired from people outside Jain Mandir whose names he did not recollect; those persons said that there were Jains residing in Marredpalli; when they enquired from jewellery shops at Marredpalli, whose particulars they do not recollect, regarding the whereabouts of the complainant; the shop owners also expressed ignorance; they came back and again went to Saraswathi complex on 05.10.2011, and enquired from the owners of Flat No.402 as to whether the complainant was available there, and whether they would be able to tell them about her whereabouts, but they expressed ignorance; they had returned the summons to the station house officer, Chilakalaguda police station on 8th July; no registers were maintained regarding service of summons; except to mark their attendance in the police station in the morning, no record was maintained in the police station regarding the places they visited or the persons whom they contacted for service of summons; and he was unable to recall events which transpired on 1st October, 2011.
17. Smt. Anjali Jain (the petitioner-complainant) stated on oath on 27.10.2011 that the incident, for which she had filed the complaint, took place on 11.03.2011; the police officials did not receive the complaint given by her husband; it is only when she accompanied him to the police station at 11.00 p.m. on the night of 11.03.2011 that they registered the complaint; she gave a complaint to the 2nd respondent on 11.03.2011; no statement was recorded from her under Section 161 Cr.P.C. before 11.10.2011; on 11.03.2011 the 3rd respondent, along with 50 goondas, had come over to Flat No.402 at 2.30 p.m., and had forcibly evicted her from the flat; when these people came over to her residence, and started abusing them, her husband had rushed to Chilakalaguda police station; during his absence the goondas, in the presence of the 3rd respondent, his wife and his brother, had physically assaulted her, snatched her jewellery and informed her that, in case she did not vacate the flat forthwith, they would rape her; they removed the household articles from the flat, and threw them all out on the road; they retained her air-conditioner; she left the house hold articles there itself, and stayed in a hotel at Film City in Jubilee Hills; after two or three days, they went over to the house of her cousin at Zaheerabad; they have a film distribution office at Secunderabad; her statement, under Section 161 Cr.P.C, was recorded in their office premises only on 11.10.2011; and she had lost her entire jewellery which was taken away by the 3rd respondent. III. ANALYSIS OF EVIDENCE: A. FAILURE TO SERVE A COPY OF THE DRAFT FINAL REPORT ON THE COMPLAINANT
18. In his counter-affidavit the 2nd respondent stated that, after permission was obtained from the Assistant Commissioner of Police, Gopalapuram Division, North Zone on 18.06.2011 to refer the petitioner's complaint as lacking in evidence, attempts were made to serve the notice, but the petitioner was evading receipt thereof. In his additional counter-affidavit the 2nd respondent stated that due to non-availability of the complainant, no notice could be served on her. Sri B. Anjaiah stated on oath on 20.10.2011 that they could not send the notice to the complainant because they were not aware of her address. Initially Sri B. Anjaiah stated that he had deputed police constables to ascertain the address of the complainant. He later added that he was not aware whether any police constables were sent to find out the present location of the complainant. Curiously, in his subsequent statement of 21.10.2011, Sri B. Anjaiah contradicted his earlier statement of 20.10.2011, and stated that he had deputed two process-men Sri Yella Reddy and Sri Srinivas to serve the notice along with the final report in the 1st week of July, 2011; the final report had not been submitted to the Magistrate till date, as a copy thereof had not been served on the complainant; and he did not collect the notice from the process-server though the notices were not served on the complainant.
19. Even more curious are the mutual contradictions in the statements of the two home-guards who allegedly made attempts to serve the notice on the complainant. While stating that, on 03.07.2011, Sri B. Anjaiah - the Station House Officer - had handed over a copy of the notice to be served on the complainant, Sri M. Srinivas deposed that they had enquired from the watchman, and the security guards of the flats, who told them to go near Jain Mandir at Secunderabad, and later they also visited some jewellery shops at Secunderabad, (whose names he did not recollect), to ascertain the complainant's whereabouts. While Sri M. Srinivas was certain that a copy of the notice, to be served on the complainant, was handed over to him on 03.07.2011, he expressed ignorance of where he went nearly two/three months thereafter on the 1st of September or on the 1st of October, 2011. He also admitted that he did not recollect events which took place on the 5th of July, 2011. While Sri M. Srinivas stated that they had enquired from both the watchman and the security guard regarding the whereabouts of the complainant, Sri V. Yella Reddy (the other home guard) stated that they had enquired from the security guard who was there at the complex. No reference is made by him of their enquiring, the whereabouts of the complainant, from the watchman. He also stated that they had visited Jain Mandir and jewellery shops at Maredpalli, but admitted that he did not recollect the names of persons from whom they had enquired regarding the petitioner's whereabouts, or the names of the jewellery shops they had visited in this regard. Contrary to what Sri M. Srinivas stated, Sri V. Yella Reddy stated that they had again gone to the apartments on 05.10.2011. He also stated that they had returned the summons to the Station House Officer (Sri B.Anjaiah) on 08.07.2011 which contradicts the statement of Sri B. Anjaiah that he did not collect the notice from the process server. Sri V. Yella Reddy also admitted that no registers were maintained regarding service of summons and, except to mark their attendance in the morning, no record was maintained in the police station regarding the places they visited or the persons whom they contacted for service of summons. Sri V. Yella Reddy also admitted that he did not recollect events which transpired on 1st October, 2011. The notice, allegedly sent to the complainant, has also not been placed before this Court for its perusal. Even if it is presumed that a notice was made ready to be served on the complainant, (which itself is doubtful), the evidence of the police officials and homeguards reveal that they were not even aware of the whereabouts of the complainant resulting in their not serving the notice on her. This falsifies the averment in the counter affidavit filed by the 2nd respondent that the petitioner (complainant) was evading receipt of the notice. B. MISSING STATEMENT OF THE COMPLAINANT
20. In her statement on oath before this Court, the petitioner-complainant denied that her statement under Section 161 Cr.P.C. was recorded by the police at any time before 11.10.2011 when such a statement was recorded in their Film Distribution Office at Secunderabad. The counter-affidavit of the second respondent dated 13.09.2011 makes no reference to the statement of the complainant having been recorded under Section 161 Cr.P.C. It is only on the records being placed before it that this Court found that it did not contain the statement of the complainant under Section 161 Cr.P.C. An additional counter affidavit was filed by the 2nd respondent thereafter wherein it is stated that, while the complainant's statement under Section 161 Cr.P.C. was recorded as early as on 12.03.2011 itself i.e., on the very date of registration of the F.I.R, it was misplaced. In his statement on oath before this Court on 20.10.2011, Sri B. Anjaiah stated that the investigating officer had recorded, in Part I Case Diary, that the statement of the complainant was recorded; that is how he came to know that her statement was recorded on 12.03.2011; and he had searched for the statement in his office, and also in the office of the Assistant Commissioner of Police, but the said statement could not be traced. Sri K. Venugopal, the Investigating Officer, reiterated that the petitioner's statement under Section 161 Cr.P.C. was recorded on 12.03.2011. While admitting that the file placed before this Court did not contain the said statement, he stated that it was evident that the said statement had been misplaced; and he was not aware as to how the said statement was misplaced. His admission, that no records were maintained in the police station to show whether or not the statement of the complainant or others, under Section 161 Cr.P.C, is recorded not only contradicts the statement of Sri B. Anjaiah that in the Part I Case Diary Sri K. Venugopal had recorded that the statement of the complainant under Section 161 Cr.P.C. had been recorded; but also gives rise to a strong suspicion that the Part I case diary may well have been interpolated later to cover up the lapse of the Investigating Officer in failing to record the statement of the complainant under Section 161 Cr.P.C. The very fact that the draft final report makes no reference to the civil suits filed both by the petitioner and the 3rd respondent against each other (both of which ended in the petitioner's favour) would also go to show that her statement was not recorded for if, indeed, her statement was recorded, and the matter investigated fairly, these aspects would certainly have come to light. While the draft final report refers to the complaint lodged by the petitioner, it makes no reference either to her statement having been recorded under Section 161 Cr.P.C. on 12.03.2011, or of the suits filed both by her and her landlord against each other. The 3rd respondent, in his counter affidavit, admits that O.S. No.295 of 2008 filed by him for eviction of the petitioner-tenant from the flat was dismissed. He, however, denies having entered the flat at any point of time. He would state that the petitioner had voluntarily vacated the premises without his knowledge, and she had come up with false allegations later only with the intention of harassing him. Prima facie the counter-affidavit filed by the 3rd respondent is also false.
21. It defies credulity that a person who, the respondents would contend, had voluntarily vacate her flat, would throw her belongings on the pavement outside the apartment building, and give a police complaint in the middle of the night against the landlord of being forcibly ousted from the flat, more so when the suit filed by her seeking permanent injunction against the 3rd respondent- landlord was decreed, and the suit filed by the 3rd respondent-landlord for eviction of the petitioner-tenant from the flat was dismissed. The clumsy efforts of the respondent police officers to cover up their lapse in recording the statement of the complainant under Section 161 Cr.P.C. before the draft final report was prepared and approved, and their attempts to mislead this Court, necessitates a serious view being taken of the entire episode.
22. The role of the then Assistant Commissioner of Police, Gopalapuram in this sordid episode needs specific mention. Within five days of the complaint being filed on 12.03.2011 he had instructed the Investigating Officer, by memo dated 17.03.2011, to elicit whether any previous enmity existed between both the parties i.e., the complainant and the alleged accused. He also directed the investigating officer to examine the neighbours and other witnesses, (his letter does not refer to the need to examine the complainant); elicit the truth behind this incident, finalise the case within a fortnight, and report compliance. Curiously neither of the counter affidavits filed before this Court, nor the statements recorded on oath, (including that of the Assistant Commissioner), make any reference to this memo dated 17.03.2011 having been issued. The unseemly urgency displayed by the Assistant Commissioner of Police, Gopalapuram to have the case closed is evident from his memo dated 17.03.2011 asking the investigating officer to complete investigation within a fortnight, and in according permission on 18.06.2011 to the Investigating Officer to refer the case as "lack of evidence".
23. While several Writ Petitions are filed daily before this Court questioning the inordinate delay in investigation of several months, and in some cases years, the reasons which prompted the Assistant Commissioner to evince special interest in this case, direct the investigating Officer to investigate in a particular manner, and complete investigation within a fortnight, and in according permission to file a report under Section 173 Cr.P.C. as "lack of evidence", are not difficult to perceive. This needless haste, coupled with the fact that the complainant's statement under Section 161 Cr.P.C. was not recorded prior thereto and that the investigating officer had not even taken note of the suit filed by the complainant, seeking permanent injunction against her land- lord having been decreed, and the suit filed by the 3rd respondent-landlord for eviction of the complainant - tenant had been dismissed, does indicate, prima facie, that the Assistant Commissioner of Police, Gopalapuram had orchestrated the investigation in a manner to favour the 3rd respondent-landlord. This case is illustrative of the systemic malaise in the prevalent criminal investigation machinery. The rot which has set in, if not promptly stemmed, may sound the death-knell of the criminal justice delivery system in this country. IV. ACTION TO BE TAKEN: (i). TRANSFER OF INVESTIGATION:
24. Article 21 of the Constitution of India, in its broad application, not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence. (State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal5). Fair investigation is a part of the constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Investigation must be fair, transparent and judicious as it is the minimum requirement of the rule of law. The investigating agency cannot be permitted to conduct investigation in a tainted and biased manner. (Babubhai v. State of Gujarat6). The aim of criminal justice is two-fold. Severely punishing and sufficiently preventing a crime. Both these objects can be achieved only by a fair investigation into the commission of a crime. An investigation must be fair and effective, must proceed in a proper direction in consonance with the ingredients of the offence, and not in a haphazard manner. (Sidhartha Vashisht v. State (NCT of Delhi)7). A fair and impartial investigation by an independent agency is essential in larger public interest. (Mohd. Anis v. Union of India8).
25. If the State's machinery fails to protect a citizen's life, liberty and property, and the investigation is conducted in such a manner as to help the accused, it is but appropriate that the Court should step in to prevent the miscarriage of justice perpetrated on the victim. "The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope." Courts have to ensure that the accused are punished, and the might or authority of the State is not used to shield them. If deficiency in investigation is visible or can be perceived by lifting the veil which hides realities or covers obvious deficiencies, courts have to deal with them with an iron hand within the framework of the law. It is the duty of the court to ensure that full and material facts are brought on record to avoid miscarriage of justice. The justice-delivery system cannot be allowed to be abused, misused and mutilated by subterfuge. (Zahira Habibulla H. Sheikh v. State of Gujarat9; Jennison v. Baker10 and Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble11).
26. The criminal investigation system must be insulated from discriminatory standards or yardsticks of the type prohibited by the mandate of the Constitution. (Zahira Habibulla H. Sheikh9). The investigation into a criminal offence must be free from all objectionable features or infirmities which may legitimately lead to a grievance that the investigation was unfair or had been carried out with an ulterior motive which has an adverse impact on the case. (Mohd. Imran Khan v. State (Govt. of NCT of Delhi12; Babubhai6). It is not only the responsibility of the investigating agency but as well as that of the courts to ensure that investigation is fair. An equally enforceable canon of the criminal law is that a high degree of responsibility lies upon the investigating agency not to conduct investigation in a tainted and unfair manner. The investigation should not, prima facie, be indicative of a biased mind and every effort should be made to bring the guilty to law as nobody stands above law dehors his position and influence in society. (Sidhartha Vashisht7).
27. In the case of a malafide exercise of power by a police officer, the court may interfere with the investigation. (S.N. Sharma v. Bipen Kumar Tiwari13; Babubhai6). Where the court comes to the conclusion that there are serious irregularities in the investigation, or that the investigation has been done with the object of helping a party, it may direct further investigation. In exceptional circumstances the court, in order to prevent miscarriage of criminal justice, may, if it considers it necessary, direct investigation de novo, or even transfer the investigation to an independent agency. Where non- interference of the court would ultimately result in failure of justice, the court must interfere. In such a situation, it may be in the interests of justice that an independent agency chosen by the High Court makes a fresh investigation. (Babubhai6; K. Chandrasekhar v. State of Kerala14; Ramachandran v. R. Udhayakumar15; Nirmal Singh Kahlo v. State of Punjab16; Mithabhai Pashabhai Patel v. State of Gujarat17; and Kishan Lal v. Dharmendra Bafn18).
28. The analysis of the evidence afore-extracted, prima facie, shows that Sri S. Chaturvedi, presently Additional Deputy Commissioner of Police, Task Force (the then Assistant Commissioner of Police, Gopalapuram), orchestrated investigation to unduly benefit the 3rd respondent-landlord, and to the detriment of the petitioner-tenant (the victim). Under the protective umbrella of Sri S. Chaturvedi, Sri K. Venugopal, (the then Investigating Officer), short circuited the investigation and prepared a draft final report as "lack of evidence". The concocted story of the petitioner-tenant having vacated her flat on her own accord falls to ground in the face of overwhelming evidence to the contrary. The petitioner's articles and belongings were found strewn on the pavement outside the apartment building, the day after she gave her complaint. The suit filed by her against the 3rd respondent-landlord for permanent injunction was decreed, and the suit filed by the 3rd respondent- landlord seeking her eviction was dismissed long before the incident which took place on 11.03.2011. A person, who voluntarily vacated occupation of the flat, would not go to the police station in the middle of the night and complain that she has been forcibly evicted, more so when the landlord's attempts earlier to evict her through the legal process had failed. Prima facie it does appear that the 3rd respondent-landlord, having failed to evict the petitioner-tenant from the flat through the legal process, took law into his own hands and used musclemen to have her and her family members evicted from his flat; the respondent police officials sought to ensure that the 3rd respondent-landlord, despite his illegal and high handed acts of trespass into the flat and physical assault and attempted rape, was not brought to justice; and the petitioner's complaint was sought to be given a quick and quiet burial.
29. Since a draft final report has not yet been filed before the Magistrate it is but appropriate, in the aforesaid circumstances, that the petitioner's complaint be investigated afresh by an independent agency. The Commissioner of Police, Hyderabad shall entrust investigation, into the complaint filed by the petitioner, to the CBCID which shall conduct investigation in a fair, transparent and impartial manner uninfluenced either by the previous investigation or by any observations made in this order. It is made clear that Sri S. Chaturvedi, the Additional Deputy Commissioner of Police, Task Force, Sri K. Venugopal, the then investigating officer and Sri B. Anjaiah, the Station House Officer shall not, in any manner, be associated with the investigation being caused afresh into the petitioner's complaint. While this Court was initially inclined to monitor the investigation to be conducted afresh by the CBCID, bearing in mind that monitoring of investigation is resorted to only in exceptional circumstances and as there is no reason to doubt that the CBCID would conduct investigation in a fair, transparent and impartial manner, it may not be appropriate for this Court to monitor the investigation. It is, however, made clear that the investigation shall be completed within four months from today; and, on completion of investigation and before a final report under Section 173 Cr.P.C. is filed, the investigating officer (in the CBCID department) shall place a copy of the draft final report, along with the enclosures including the statement of witnesses examined by him, for this Court's perusal. (ii). INITIATION OF CRIMINAL CONTEMPT PROCEEDINGS:
30. Sri B. Anjaiah, the Station House Officer and Sri G. Avanidhar Goud, the 3rd respondent-landlord have filed false counter-affidavits. Sri S. Chaturvedi, the Additional Deputy Commissioner of Police - Task force, Sri K. Venugopal, the then Investigating Officer, Sri B. Anjaiah-the Station House Officer, and Sri M. Srinivas and Sri V. Yella Reddy, the Home-guards/process servers have made false statements on oath before this Court in their endeavour to deflect the course of justice, and to prevent this Court from ascertaining the truth. Section 2(c) of the Contempt of Courts Act, 1971 defines criminal contempt as "the publication (whether by words, spoken or written or by signs or visible representation or otherwise) of any matter or the doing of any other act whatsoever to (1) scandalise or tend to scandalise or lower or tend to lower the authority of any court; (2) prejudice or interfere or tend to interfere with the due course of judicial proceedings; or (3) interfere or tend to interfere with, or obstruct or tend to obstruct, the administration of justice in any other manner. Thus any conduct which has the tendency to interfere with the administration of justice, or the due course of judicial proceedings, amounts to the commission of criminal contempt. (Dhananjay Sharma v. State of Haryana19). The word 'interfere', in this context means any action which checks or hampers the functioning or hinders or tends to prevent the performance of duty i.e., obstacles or impediments which hinder, impede or in any manner interrupt or prevent the administration of justice. If recourse to falsehood is taken with an oblique motive, the same would definitely hinder, hamper or impede the even flow of justice, and would prevent the courts from performing their legal duties as they are supposed to do. (Chandra Shashi v. Anil Kumar Verma20; Words and Phrases (Permanent Edn.), Vol. 22).
31. In Chandra Shashi20, the respondent produced a false and fabricated certificate to defeat the claim of his wife for transfer of a case. This action was found to interfere with the administration of justice. The Supreme Court observed: "The stream of administration of justice has to remain unpolluted so that purity of court's atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of court's environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned. Anyone who takes recourse to fraud deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice." (emphasis supplied).
32. Anyone who makes an attempt to impede or undermine or obstruct the free flow of the unsoiled stream of justice by resorting to false evidence, commits criminal contempt of the court and renders himself liable to be dealt with in accordance with the provisions of the Contempt of Courts Act. Filing of false affidavits or making false statement on oath in Courts aims at striking a blow at the rule of law, and no court can ignore such conduct which has the tendency to shake public confidence in judicial institutions. It would be a public disaster if the fountain of justice is allowed to be poisoned by anyone resorting to filing of false affidavits or giving of false statements or fabricating false evidence in a court of law. The stream of justice has to be kept clear and pure and anyone soiling its purity must be dealt with sternly so that the message percolates loud and clear that no one can be permitted to undermine the dignity of the court and interfere with the due course of judicial proceedings or the administration of justice. (Dhananjay Sharma19; Chandra Shashi20). To enable the courts to ward off unjustified interference in their working, those who indulge in acts like perjury, prevarication and motivated falsehoods have to be appropriately dealt with, without which it would not be possible for any court to administer justice. (Chandra Shashi20).
33. Prima facie, the false affidavits filed by Sri B. Anjaiah and Sri G. Avanidhar Goud; and the false statements on oath by Sri S Chaturvedi, Sri B. Anjaiah, Sri K. Venugopal, Sri M. Srinivas and Sri V. Yella Reddy constitute criminal Contempt of Court. The Registrar-General of the High Court shall forthwith initiate suo-motu criminal contempt proceedings, under the Contempt of Courts Act, against the five police officials/personnel and Sri G. Avanidhar Goud, the 3rd respondent-landlord. (iii). INITIATION OF DISCIPLINARY PROCEEDINGS:
34. A copy of this order shall be sent to the Chief Secretary, Government of Andhra Pradesh forthwith, and he shall initiate disciplinary proceedings against the five police officials/personnel for dereliction and gross negligence in the discharge of their duties, and for derailing the course of investigation to unduly favour Sri Sri G. Avanidhar Goud, the 3rd respondent-landlord.
35. Respondents 2 and 3 in this Writ Petition, Sri S. Chaturvedi, (Additional Deputy Commissioner of Police, Task Force) and Sri K. Venugopal, (the previous investigating officer), shall pay exemplary costs of Rs.5,000/- each to the petitioner within two months from today. With the above observations and directions, the Writ Petition stands disposed of.