Dismissed

Baggiri Bayamma v. The Government of Andhra Pradesh

Telangana HC28 Sept 2012WA/458/2012

Case brief

AI extract

What is this about?

This court dismissed a writ appeal challenging the dismissal of a petition seeking transfer of investigation to CBI in a murder case. The bench held that allegations were vague, the investigation was complete with a charge sheet filed, and interference requires exceptional circumstances not present here.

What did the court decide?

Appeal dismissed; order of the single judge endorsing the refusal to transfer investigation to CBI stands affirmed.

Baggiri Bayamma Vs The Government of… — Constitutional and Fundamental Rights | Telangana HC (2012)

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HON’BLE THE ACTING CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE AND THE HONOURABLE SRI JUSTICE VILAS V.AFZULPURKAR

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WRIT APPEAL NO.458 OF 2012

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Dt: 28-09-2012.

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Between:

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BAGGIRI BAYAMMA AND OTHERS .. APPELLANTS

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AND

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GOVT. OF A.P., REP. BY ITS PRINCIPAL SECRETARY DEPARTMENT OF HOME, SECRETARIAT, HYDERABAD AND OTHERS .. RESPONDENTS

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HON’BLE THE ACTING CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE AND THE HONOURABLE SRI JUSTICE VILAS V.AFZULPURKAR

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WRIT APPEAL NO.458 OF 2012

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JUDGMENT: (Per THE ACTING CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE)

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This writ appeal is filed aggrieved by the order dated 15-03-2012 passed by the Hon’ble single Judge in W.P.No.2218 of 2011, which was filed by the writ petitioners praying to issue a Writ of Mandamus declaring the action of the respondents in not transferring the investigation in Crime No.239 of 2010 dated 31.7.2010 on the file of Dharmavaram Urban Police Station, Dharmavaram, Anantapur District to CBI/CBCID as illegal, arbitrary and contrary to the elementary principles of Criminal jurisprudence and also offends Articles 14 and 21 of the Constitution of India.

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The Hon’ble single Judge, after considering the facts which are being urged before the Court and after going through the charge-sheet, thought that though several allegations are made that a criminal conspiracy has been laid by the local Member of Legislative Assembly with the accused in committing the murder of the husband of the 1^st petitioner, late Sri B.Nagi Reddy, the petitioners have not chosen to add any of them as parties to the writ petition. The judgments of the Supreme Court in HASANBHAI VALIBHAI QURESHI v. STATE OF GUJARAT AND OTHERS^[1] , RAMA CHAUDHARY v. STATE OF BIHAR^[2] and BABUBHAI v. STATE OF GUJARAT AND OTHERS^[3] were also relied upon by the learned counsel appearing for the writ petitioners before the Hon’ble single Judge.

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It appears from the facts that as pointed out before the Court by the learned Assistant Government Pleader for Home that no case is made out by the petitioners to seek transfer of investigation in the crime in question to CBI or CBCID. It was further stated that the offences punishable under Sections 147, 148 and 302 read with Section 149 IPC, investigation is completed and necessary charge sheet was filed against six accused before the Judicial First Class Magistrate, Dharmavaram and the same was already taken on file vide P.R.C.No.35 of 2010 and the same is at the stage of committal to the Court of Sessions.

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It further appears that the Hon’ble single Judge, at the time of hearing of the matter in question, noted that except alleging that there is instigation by the local MLA for committing the crime no factual foundation is established by attributing any strong motive against any other person other than the accused in the crime in question. In these circumstances, the Hon’ble single Judge held that the judgments relied on behalf of the writ petitioners cannot have any assistance in favour of the petitioners and further relied on a judgment in T.C.THANGARAJ v. V.ENGAMMAL AND OTHERS^[4] and the judgment of the Constitution Bench in the case of WEST BENGAL & ORS. v. COMMITTEE FOR PROTECTION OF DEMOCRATIC RIGHTS, WEST BENGAL & ORS^[5] , wherein the Constitution Bench held that the power of the High Court under Article 226 of the Constitution of India to direct investigation by CBI is to be exercised sparingly, cautiously and in exceptional situations and an order directing CBI is not to be passed as a matter of routine, or merely because a party has leveled some allegations against the local police. His Lordship further noted that in the case of SAKIRI VASU v. STATE OF U.P. & ORS^[6] , the Hon’ble Supreme Court held that directions for conducting investigation by CBI should be issued only in rare and exceptional cases. By applying such reasoning, his Lordship came to the conclusion that it is always open to the writ petitioners to bring the evidence on record to the notice of the competent court and ask for relief. In these

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circumstances, the writ petition was dismissed.

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Being aggrieved and dissatisfied with the order of the Hon’ble single Judge, this writ appeal is filed by the writ petitioners.

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Heard learned counsel appearing for the parties, perused the record and also charge-sheet in question.

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Learned counsel appearing for the appellants harped on the same points as urged before the Hon’ble single Judge.

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In our opinion, after considering the affidavit filed by the appellants/ writ petitioners, we have not been able to find out a concrete case and that the allegations are nothing but are vague in nature. Further more, chargesheet has already been filed in the matter in question on 05-11-2010 and that the writ petition was filed after the charge-sheet was filed i.e. on 2.2.2011 when the investigation is already completed and necessary charge sheet was filed against the accused before the Judicial First Class Magistrate, Dharmavaram and the same was already taken on file vide P.R.C.No.35 of 2010 and the same is at the stage of committal to the Court of Sessions. In these circumstances, we are conscious of the judgment of the Apex Court in DIVINE RETREAT CENTRE v. STATE OF KERALA^[7] , wherein it was held as follows:

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“ 39. The sum and substance of the above deliberation and analysis of the law cited leads us to an irresistible conclusion that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions under Chapter XII of the Code. However, we may hasten to add that unfettered discretion does not mean any unaccountable or unlimited discretion and act according to one’s own choice. The power to investigate must be exercised strictly on the condition of which that power is granted by the Code itself.

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40. In our view, the High Court in exercise of its inherent

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jurisdiction cannot change the investigating officer in the midstream and appoint any agency of its own choice to investigate into a crime on whatsoever basis and more particularly on the basis of complaints or anonymous petitions addressed to a named Judge. Such communications cannot be converted into suo motu proceedings for setting the law in motion. Neither are the accused nor the complainant or informant entitled to choose their own investigating agency to investigate a crime in which they may be interested.”

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In the facts and circumstances of the case and after following the 7^th cited judgment of the Apex Court, we do not find that there is any reason to interfere with the order so passed by the Hon’ble single Judge. The order so passed by the Hon’ble single Judge does not suffer from any illegality or irregularity.

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Accordingly, this writ appeal is dismissed.

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( PINAKI CHANDRA GHOSE, ACJ )

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( VILAS V.AFZULPURKAR,

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J )

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Dt: 28-09-2012.

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TNB