THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No.656 of 2007 & CRIMINAL REVISION CASE No.1402 of 2009 17-10-2014 CRIMINAL REVISION CASE No.656 of 2007 BETWEEN:
G.Nancharayya and another …..Petitioners AND The State of A.P., rep. by Special P.P., High Court of A.P., Hyderabad & another …..Respondents AND CRIMINAL REVISION CASE No.1402 of 2009 BETWEEN:
G.Ratna Raju & others …..Petitioners AND M.Geetha and another …..Respondents THIS COURT MADE THE FOLLOWING ORDER:
THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No.656 of 2007 & CRIMINAL REVISION CASE No.1402 of 2009 COMMON ORDER:
Crl.R.C.No.656 of 2007 is filed by petitioners, who are arrayed as A.4 & A.5 against the orders passed by I Additional Chief Metropolitan Magistrate, Vijayawada in P.R.C.No.13 of 2003 dated 1.12.2006, whereby the learned Magistrate took cognizance of the offence against the petitioners herein and others for the offences under Sections 302, 201, 149, 120-B r/w 34 IPC upon the private complaint lodged by the complainant and committed the case to the Court of Sessions. Whereas Crl.R.C.No.1402 of 2009 is filed by A.2,A.5 & A.6 against the orders of VIII Additional District and Sessions Judge (Fast Track Court), Vijayawada dated 15.7.2009, whereby the learned Sessions Judge dismissed the applications filed by them in Crl.M.P.Nos.174, 106 and 140 of 2009 in S.C.No.248 of 2008 to discharge them of the charges.
Crl.R.C.No.656 of 2007 The brief facts of the case, which gave rise to filing of these revisions are as under:
The petitioners were working as police constables in the Governorpeta Police Station, Vijayawada. The complainant-second respondent herein is the resident of Kankipadu and she is the paternal aunt of K.Srinivasa Rao @ Budda Santhan (hereinafter referred to as ‘deceased’). A.1, the then Commissioner of Police, Vijayawada without conducting any enquiry, declared before the press that the deceased and another person are responsible in killing of one Edupuganti Satyam and declared the deceased as rowdy sheet. On 13.7.2002, A.1 after holding the press conference by parading the deceased-Srinivasa Rao and two others accused them as murderers of Satyam and made them to confess before the press. Soon after the press, they were produced before the concerned Magistrate, who took them to judicial custody and directed the accused to produce them on Monday i.e. on 15.7.2002. The accused kept the deceased and others in police lock up on 13.7.2002 at 8.00 p.m. and that A.5 went to the house of deceased and obtained the signatures of mother of deceased on blank papers. On 14.7.2002, at about 5.30 a.m., A.5 came to the deceased house and informed to his kith and kin that the deceased was shot dead by police and his body was in Government Hospital. The complainant along with other family members rushed to the hospital and found the dead body of the deceased in mortuary and noticed two bullet injuries, one on the head and the other on the chest of the deceased. According to the complainant, on 14.7.2002, A.1 to A.3 asked A.4 and A.5 to bring the deceased from the lock up room, made him to stand in the pathway in front of S.I. room of police station, that A.1 to A.3 directed to shoot at the deceased and A.4 shot at the deceased with bullet injuries on the chest and on the head, as a result of which, the deceased collapsed on the ground at the pathway. After killing the deceased, hurriedly, the accused shifted the dead body from the scene of offence. Hence the private complaint. The case was taken on file others for the offences under Sections 302, 201, 149, 120-B r/w 34 IPC against the petitioners herein along with others.
The case against A.1 was set aside as per the orders of this Court and the case is proceeded against A.2 to A.5. On perusal of F.I.R., Remand report, 161 Cr.P.C. statements of witnesses and charge sheet, I Additional Chief Metropolitan Magistrate, Vijayawada committed the case to the Court of Sessions holding that prima facie case is made out against the accused. Being aggrieved by the said committal order, the petitioners herein filed the revision.
The learned counsel for the petitioners contended that the alleged act complained was in due discharge of the official duty by the petitioners being public servants in exercise of right of private defense and therefore, without there being any prior sanction from the competent authority as contemplated under Section 197 Cr.P.C., the magistrate is barred from taking cognizance of the offence. It is contended that the learned Magistrate passed the impugned committal order without complying the mandatory requirement under Section 208 Cr.P.C. since no documents whatsoever were furnished to the petitioners including the statements of complainant and witnesses recorded under Section 200 and 202 of Cr.P.C. and also 164 Cr.P.C. statement of T.Babu Rao. It is contended that though the alleged incident took place on 14.7.2002, no report was given to the Station House Officer or any other police officer at any point of time but the complaint was filed only on 01.8.2002.
Crl.R.C.No.1402 of 2009 This revision is filed by A.2, A.6 & A.5 challenging the orders dated 15.7.2009 in S.C.No.248 of 2008 on the file of VIII Additional District and Sessions Judge (Fast Track Court), Vijayawada in dismissing Crl.M.P.No.174, 106 and 140 of 2009 filed by A.2, A.6 & A.5 respectively, seeking to discharge them from the charges.
The brief facts of the case, which gave rise to filing of these revisions are as under:
A.2 was working as S.I. of Police, A.6 was working as Head-Constable and A.5 was working as Police Constable attached to Machavaram Police Station. The de facto complainant lodged a private complaint alleging that her brother Pilli Durga Prasad (hereinafter referred to as ‘deceased’) was accused in Crime No.78 of 2001 for an offence under Section 302 IPC on the file of Vuyyuru Police Station and also in Crime No.161 of 2001 for an offence under Section 302 IPC on the file of Machavaram Police Station. He was remanded to judicial custody in connection with Crime No.75 of 2001. On 9.5.2002, he was produced before the concerned Magistrate in Crime No.161 of 2001 and A.2 filed a petition seeking police custody and accordingly, he was given in custody for two days i.e. on 4.6.2002 5.30 p.m. to 6.6.2002 5.30 p.m. It was alleged that the deceased escaped from Machavaram Police Station and in that connection a crime No.442 of 2002 was registered for an offence under Section 224 IPC and later A.2 filed a memo before the Magistrate concerned stating that they have secured his presence on 4.6.2002 for interrogation. On 5.6.2002 at about 5.30 p.m. the deceased on the pretext of attending nature calls, escaped from the custody of A.5 and absconded from the police station. The said news was published on 6.6.2002. it was alleged that on 8.6.2002 at about 6.00 a.m., A.5 informed to the family members that the police personnel killed and thrown the body of the deceased near the fields at Gunadala railway track and on the said information, the family members went there and found his dead body with bullet injuries. Then she lodged the private complaint against A.1 to A.6. The case was taken on file for the offences under Sections 302, 201, 149, 120-B r/w 34 IPC against the petitioners herein along with others.
It is to be noticed that A.1, the Commissioner of Police and A.3, the Circle Inspector were discharged from the charges. Further since A.4 had not attended the Court, N.B.Ws were issued and the case against him was separated. Thus in the present PRC, the petitioners are being prosecuted.
Learned counsel for the petitioners contended that the complaint was filed by the sister of the deceased only six months after the death of the deceased and that there was no proper explanation for such inordinate delay. The sworn statements of the witnesses recorded by the trial court would not make out any prima facie case against the petitioners herein. It is contended that the trial Court failed to see that the deceased inflicted injuries on the first petitioner with a knife with an intention of doing away with him which necessitated him to use service revolver in exercise of right of self-defence. It is contended that no specific overt acts were attributed to petitioners 2 and 3 herein, who are police constables and in fact, the alleged conspiracy and common object were deleted from the crime after dismissing the complaint as against A.1 and A.3, who are Commissioner of Police and Inspector of Police, respectively. Since the petitioners are public servants discharging their official duties, it is mandatory to obtain prior sanction from the Government under Section 197 Cr.P.C. before taking cognizance of the case against them.
This Court heard the arguments and perused the material available on record.
It is an unfortunate case wherein the brother of the complainant was allegedly shot- dead by the petitioners-accused. The deceased was arrested in connection with Crime No.451 of 2002 and thereafter he was killed in the police firing and the same was stated to be self-defence when the deceased tried to attack the police officials. Aggrieved over the said act of the petitioners herein, the sister of the deceased lodged a complaint before the concerned court for an offence under Section 302, 201, 149, 120-B r/w 34 IPC against the petitioners in Crl.R.C.No.656 of 2007 and cognizance of the offence was taken on file on 1.12.2006. As far as petitioners in Crl.R.C.No.1402 of 2009 are concerned, after re-committal of the case to the Court of Sessions, they filed discharge application and the same was dismissed on 15.7.2009. Challenging the said orders, they filed the revision.
Since both the revisions are arising out of the same issue, they are being disposed of by this common order.
The admitted facts in the entire case are not disputed by both the parties that the deceased was taken to the police station by the petitioners herein and the death was also occurred because of police firing. But there are contradictory views regarding the said occurrence. According to the petitioners, the said occurrence occurred in exercise of right of private defence when the deceased tried to attack the police officials. Whereas, according to the complainant-respondent herein, the said firing is a fake encounter and it is a cold-blooded murder.
To substantiate the stand that it is a cold-blooded murder, after filing of the complaint, the complainant got examined herself and also other witnesses. But it is to be remembered that in the evidence adduced by all the witnesses, they could able to speak only to the extent of arrest of the deceased and also the fact that the deceased was taken by the police-petitioners herein. None of them are eyewitnesses to the occurrence alleged.
On the same set of facts, police registered a case for an offence under Section 307 and 100 r/w 34 IPC and 174 Cr.P.C. in Crime No.458 of 2002 on the file of Governorpet Police Station. The same was investigated into and a final report was filed by C.I.D., RCIU, Vijayawada on 31.7.2008 concluding as follows after examining as many as 27 witnesses:
“As per the aforesaid reasons and analysis basing on the oral, scientific and documentary evidence adduced in this case, no prima facie case is established against the SI Ratna Raju and his associates. The case is established against the deceased Vallabhaneni Durga Prasad @ Pilli Prasad for making voluntarily causing hurt to deter public servant from his duty and also attempt to murder with such act caused hurt to the SI Ratna Raju on the same day of occurrence of this crime. The investigation disclosed that the firing on the deceased by SI Ratna Raju on exercising Right of Private Defence under Section 100 IPC is justified.
Hence this case referred as action “Abated” against the accused namely Vallabhaneni Durga Prasad @ Pilli Prasad who was shot dead at the hands of police while exercising their right of Private Defence. The complaints notice served on his is enclosed herewith.”
The said report was filed subsequent to filing of complaint by the respondent herein. It is to be noted that in an earlier occasion, the then Commissioner of Police, Vijayawada and another, who are A.1 and A.2 approached this Court by way of filing Crl.R.C.Nos.699 and 700 of 2003 challenging the proceedings in P.R.C.No.13 of 2003. This Court by an order dated 21.4.2006 passed an order setting aside the taking cognizance of offence against the petitioners therein. Challenging the same, the respondent herein approached the Apex Court, wherein the Apex Court passed an interim order directing the Central Bureau of Investigation officials to conduct and enquiry considering the allegations made by the respondent-complainant. After due investigation, the Inspector of Police, C.B.I., S.C.B., Chennai filed a report in RC No.4/S/08/CBI/SCB/Chennai as follows:
During investigation of this case by the local police, the finger prints on the .38 service revolver which was allegedly used by the deceased accused K.Srinivasa Rao were not taken. Further, the hand wash of the accused was also not taken. In the absence of both the above relevant materials, the handling of the .38 revolver by the deceased accused could not be proved conclusively. During investigation of CBI, though efforts were made to lift finger prints, if any, from the .38 revolver but could not yield result due to lapse of time and handling of the weapons in the interregnum by APFSL, Hyderabad and by the Police officials at the time of deposit of the weapon in the Court. This leaves the investigation to rely upon only the oral evidence on record. When analysed with the outcome of Polygraph examination, the logical conclusion that could be drawn is that the police was forced to open fire on the deceased accused K.Srinivasa Rao in the exercise of right of private defence to save the life of the SI of Police of Governorpet P.S. The Magisterial enquiry which was conducted in the year 2002 had also come to such a conclusion. The witnesses including the petitioner could not substantiate the allegation that the killing of the deceased accused K.Srinivasa Rao @ Budda Santhan was a cause of murder. Mere suspicion or doubts cast upon the police officials cannot be considered as evidence. Thus, the investigation could only arrive at the conclusion that the death of deceased K.Srinivasa Rao @ Budda Santhan was caused only in the exercise of right of private defence by the police.
The said report was accepted by the Apex Court and refused to interfere with the order passed by this Court in Crl.R.C.Nos.699 and 700 of 2003 dated 21.4.2006. The said investigation was ordered by the Apex Court subsequent to filing of the complaint by the complainant-respondent herein. In this case, two investigating agencies conducted investigation and filed their final reports stating that the said occurrence arose out of self-defence by the police officials and the petitioners cannot be attributed with any criminal liability regarding the death of the death. On the said issue, the District Collector in his report dated 15.11.2002 gave his opinion as follows:
In the circumstances I am of the opinion that the deceased Mr.Kodeboina Srinivasa Rao was a person with high emotions, has history of criminal misdeeds including murder. None including his mother, sister and brother denied the murder committed by him. In fact, all of the family members and close relatives were either victims or sufferers of his highly unpredictable behaviour in one way or the other. Since his marriage, for last two years, he has been away from his mother and brother. He has no fixed income. He has not settled in any particular business or acceptable profession. He lost his father at young age and was a school dropout. He along with some young friends used to include in some criminal activities. He did not have very normal relations with his family members and relatives. He was also alcoholic according to the statements given by his family members. Almost he was boycotted by all of them.
Considering all these facts it appears that he snatched the revolver belonging to Sub Inspector of Police.
Hence, I conclude that police had to resort to forced killing of the criminal in self defence.
Considering the above, this Court is of the view that the complaint filed by the respondent-complainant is able to establish only to the extent that the deceased was taken away by the petitioners herein in connection with a crime committed by him.
The said fact was not at all disputed by the petitioners herein. The dispute is regarding the factum of death of the deceased in the hands of the petitioners. The earlier investigations conducted by the officials of C.I.D., RCIU, Vijayawada and re- confirmed by the C.B.I. clinchingly establish that the occurrence took place in exercise of right of self-defence. Hence, this Court is of the view that both the revisions are liable to be allowed.
In the result, both the revisions are allowed setting aside the orders dated 1.12.2006 passed by the Magistrate in taking cognizance of offence against the petitioners in P.R.C.No.13 of 2003. The orders dated 15.7.2009 passed by VIII Additional District and Sessions Judge (Fast Track Court), Vijayawada in dismissing Crl.M.P.Nos.174, 106 and 140 of 2009 are set aside and consequently, the said Crl.M.Ps. stand allowed.
Miscellaneous Petitions, if any, pending shall stand closed.
RAJA ELANGO,J 17.10.2014 Tsr