When the police were accused - No investigation be placed in their hands for investigation against the complainant - transfer the same to other than local police is justifiable = Similarly, in a recent judgment in Rubabbuddin Sheikh Vs. State of Gujarat16 the Supreme Court directed investigation to be entrusted to CBI as the Gujarat State Police personnel were some of the accused in the alleged fake encounter of Sohrabuddin. In Koganti Lakshmi Vs. State Government of Andhra Pradesh17, on a review of case law, this Court directed entrustment of investigation of a criminal case to the CBCID to ensure that fair and impartial investigation is held into the serious complaint of burglary/robbery allegedly committed in a Jewellary shop at Vijayawada. A perusal of the said report shows that respondent No.3 has failed to address himself to the core issue raised by the petitioners, viz., whether there is any reason for the petitioners to apprehend bias on the part of respondent No.4. Instead, respondent No.3 has solely relied upon the reports of the Sub-Divisional Police Officer, Nandyal and respondent No.4. None of these officers have gone into the grievance of the petitioners and tried to redress the same. On a careful consideration of the facts of this case, it cannot be held that the apprehensions expressed by the petitioners are without any basis. I am, therefore, of the opinion that interests of justice would be served if the investigation is entrusted to an agency, other than the local Police, as serious allegations have been made against them. It is, however, made clear that this order shall not be understood as this Court expressing its conclusive opinion either on the professed innocence of the petitioners or on the allegations of the petitioners against respondent No.4 or the other local Police officials. On the premises as above, the Writ Petition is allowed. Respondent No.3 is directed to transfer Crime No.162 of 2008 on the file of respondent No.5-Police Station to C.B.C.I.D. for further investigation.


THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY          
Writ Petition No.3998 of 2009

21-07-2010

Shaik Abdulla Shareef and others.

The Government of Andhra Pradesh, represented by its Principal Secretary,
Hyderabad, and others.

Counsel for the Petitioners: Mr.P. Nagendra Reddy

Counsel for Respondents: AGP for Home for R.1 to R.5.
                                None for R.6.

:ORDER:

        This writ petition is filed for a Mandamus to declare the action of the
respondents in not transferring the investigation in Crime No.162 of 2008 on the
file of respondent No.5 Police Station to C.B.C.I.D. as illegal and arbitrary.
The petitioners sought for a direction to respondent Nos.1 and 2 to transfer the
investigation in the said Crime to C.B.C.I.D.

        I have heard Sri P. Nagendra Reddy, learned counsel for the petitioners,
and the learned Assistant Government Pleader for Home for respondent Nos.1 to 5.
No one appeared for respondent No.6 at the hearing.

        The petitioners are residents of Nandyal town.  There were civil disputes
between the petitioners and their neighbour-Dr.S.Intiyaj Ahmed.   According to
the petitioners, the Sub-Inspectors of I Town Police Station, Nandyal, Bandi
Atmakur Police Station and Head Constable of I Town Police Station, Nandyal,
along with two constables, came to their house in the night of 11.02.2007 at
around 2.00 a.m., forcibly took away petitioner No.1 to D.S.P. Bungalow at
Nandyal, severely beat and implicated him in a case registered on the purported
report lodged by the said Dr.S.Intiyaj Ahmed.  On the alleged illegal detention
and torture, petitioner No.1 filed a private complaint against the said
Dr.Intiaj Ahmed and Police Officers.  After recording the statements of
petitioner No.1 and five other witnesses, the learned Magistrate has taken
cognizance of the case, for the offences under Sections 341, 326, 324, 329, 120-
B read with Section 149 I.P.C. against the said persons as PRC No.130 of 2007
and the same is pending.   The petitioners specifically pleaded that the present
D.S.P., Dhone-respondent No.4, who worked as Sub-Inspector and Circle Inspector
in Nandyal town for about ten years, was well acquainted with Dr.S.Intiyaj
Ahmed, who is A.1 in the above PRC; that when the petitioners did not agree for
a compromise in the said PRC., all the accused approached respondent No.4; and
that, on his directions, the Police Officers selected one person, by name,
Yerukula Koneti Nageswara Rao-respondent No.6 and got a private complaint filed
before the Judicial Magistrate of First Class, Banaganapalle, with the
allegations that respondent No.6 has obtained hand loan from the petitioners on
17.08.2008, when the petitioners allegedly visited the house of respondent No.6
and demanded the said amount, he was unable to pay the same, and, hence, the
petitioners allegedly abused respondent No.6 by caste name by dragging him out
of his house.  The Judicial Magistrate of First Class, Banaganapalle, before
whom the private complaint was filed by respondent No.6, has referred the said
complaint to the Banaganapalle Police Station, within the jurisdiction of Dhone
Sub-Division.  The Banaganapalle Police, under the alleged directions of
respondent No.4, registered Crime No.162 of 2008 for the offences under Section
3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989.  The petitioners pleaded that they had no acquaintance
whatsoever with respondent No.6, who is a resident of Banaganapalle, and alleged
that registration of Crime No.162 of 2008 is the handiwork of the accused in PRC
No.130 of 2007 in collaboration with respondent No.4. The petitioners,
therefore, apprehended that investigation by respondent No.4 would cause harm to
their interests as the said respondent is biased towards the accused in the said
PRC.

        Respondent No.4 has filed a counter-affidavit, wherein he has stated that
when the investigation in Crime No.162 of 2008 was under progress, the
petitioners have filed Criminal Petition No.5885 of 2008 seeking quashing of the
F.I.R. in the said Crime and obtained interim order of stay; that in pursuance
of the said stay order, investigation was stopped; and that, subsequently, this
Court, by order dated 17.02.2009, dismissed the said criminal petition. It is
further stated that the petitioners filed the present Writ Petition in order to
prevent respondent No.4 from filing appropriate report/charge sheet in the said
Crime. Respondent No.4 denied the allegation of the petitioners that as per his
directions, the Police Officers selected respondent No.6 and got the private
complaint filed as a counter blast to PRC No.130 of 2007.
        At the hearing, Sri P.Nagendra Reddy, learned counsel for the petitioners,
contended that the criminal case against the petitioners was engineered by the
local Police Officers, who are accused in PRC No.130 of 2007; and that
respondent No.4 - who had close connections with the petitioners' adversary,
i.e., Dr.S.Intiaj Ahmed and also with the local Police Officers, having worked
in Nandyal for nearly 10 years - will not conduct a fair investigation into the
said Crime. He further submitted that the fact that the Superintendent of
Police, Kurnool- respondent No.3 and the higher Police officials have not
responded to the petitioners' request for changing respondent No.4 as
investigation officer also establishes that the entire local Police have failed
to display an unbiased and neutral approach in dealing with the petitioners'
legitimate grievance, and that, therefore, his clients will suffer serious
injury if respondent No.4 or any other local Police officer is allowed to
investigate Crime No.162 of 2008 and file appropriate report before the Special
Court.
        Seriously opposing the contentions of the learned counsel for the
petitioners, Mrs.Rachana Waddepalli, learned Assistant Government Pleader for
Home, submitted that the petitioners failed to make out any nexus between
respondent No.4 and the complaint given by respondent No.6. She has further
contended that in pursuance of the representation made by the petitioners,
respondent No.2 called for a report from respondent No.3 and that in his report
respondent No.3 has not recommended for transfer of investigation to CBCID. At
the hearing, she has placed a copy of report, dated 20-10-2009, of respondent
No.3, submitted to respondent No.2, before the Court and submitted that it is
not a fit case for entrustment of investigation to any agency other than
respondent No.4.
        Though respondent No.6 has filed a counter-affidavit and a vacate stay
application, he is not represented by his counsel at the time of hearing.
        I have carefully considered the submissions of the learned counsel for the
parties and perused the record.
        The case of the petitioners is founded on the allegation that in view of
his close acquaintance with Dr.S.Intiaj Ahmed and his working for nearly 10
years in Nandyal town, respondent No.4 has been helping the petitioners'
adversaries, viz., Dr.S.Intiaz Ahmed and other accused in PRC No.130 of 2007 by
manipulating the complaint in the name of respondent No.6. The petitioners have
specifically alleged that being a resident of Banaganapally, respondent No.6 has
no acquaintance whatsoever with them; that they are not in the habit of lending
money; and that, after registration of Crime No.162 of 2008, the Police officers
called petitioner No.1 to Panchayat, through elders, and asked him to compromise
in the said PRC filed against the Police officers, and that, otherwise,
petitioner No.1 will be kept in jail at least for ten days in connection with
the pending criminal case against him. In his counter-affidavit, respondent No.4
has not denied the allegations that he has close acquaintance with Dr.S.Intiaj
Ahmed and that he has worked in Nandyal for about ten years.
Bias reflects mental state of a person and by its very nature, ordinarily, it is
not possible for any person to prove the same by adducing direct evidence. It is
only through circumstances that such a plea can be established.
        The Courts in England have applied two tests for determining bias in cases
other than those concerned with pecuniary interest: "real likelihood of bias"
and "reasonable suspicion of bias".
        P.P.Craig in his Administrative Law (Third Edition) traced the Law from
the 19th Century and noted that while in the 19th Century the former test viz.,
real likelihood of bias held sway, Lord Hewart C.J., in R. v. Sussex Justices,
ex p. McCarthy1 held that a reasonable suspicion of bias was sufficient to quash
the determination. The Author further said that later cases witnessed
"competitive invocation" of the two tests and the tide appeared to be shifting
back to the higher test viz., "real likelihood of bias". The learned Author
quoted "the judgment in R. v. Camborne JJ., ex p. Pearce2 and R. v. Barnsley
Licensing JJ., ex p. Barnsley and District Licensed Victuallers' Association3 as
disapproving of Lord Hewart C.J's view. However, Lord Denning M.R. in
Metropolitan Properties (F.G.C) Ltd., v. Lannon4 agreed with the view of Lord
Hewart's reasonable suspicion test.
        The English Case Law further delved into the one other test in judging
bias as to bias from whose stand point and the question of its degree. In the
case of former, four categories of persons are considered, viz., the mind of the
justice (or other challenged individual); the reasonable person, the individual
affected; or ex post facto by the reviewing court. After noticing certain
conflicting views, the learned Author has noted that the Law on this issue is
now being clarified by the House of Lords in R. v. Gough5, wherein it was held
that the same test should be applied in all cases of apparent bias, whether
concerned with justices, members of inferior tribunals, jurors and arbitrators.
Lord Goff, who delivered the leading judgment,  further held that it is from the
perspective of the Court that the bias should be viewed rather than formulating
the test in terms of reasonable man.
        Peter Leyland & Terry Woods in their Administrative Law (4th Edition),
after exhaustively discussing on the topic with reference to the case law,
opined that the Gough test laid down in R. v. Gough (5 supra) formulated by the
House of Lords should be uniformly applied in public law to include all bodies
irrespective of whether they have a judicial or quasi judicial function, and
persons with a direct pecuniary or propriety interest will be disqualified from
acting. The Author further opined that "since the 'Gough test' was formulated in
the early 1990s, there have been a number of further developments in which the
English Courts have taken account of the ECHR Jurisprudence and the test applied
in Scotland and much of the Commonwealth, i.e., the 'reasonable apprehension'
test, one which is more in line with Article 6 of the Convention".
        H.W.R.Wade & C.F.Forsyth in their book Administrative Law (8th Edition),
while dealing with this subject in extenso, referred to the judgment in R v.
Handley6, wherein it was held that among other obvious cases of prejudice are
personal friendship or hostility and family or commercial relationship.
        De Smith - in his Judicial Review of Administrative Action (1980) -
explains: "Reasonable suspicion test looks mainly to outward appearances; "real
likelihood" test focuses on the court's own evaluation of the probabilities.
This is because of the maxim that justice is not only to be done but seen to be
done. It may be that in most cases, the result may be the same whichever
formulation is applied, but at present the "reasonable suspicion" test appears
to be in favour of the courts, and, in essence, the 'suspicion' test seems to be
somewhat broader than the "real likelihood" test. The position, therefore, is
that proof of actual bias on the part of the adjudicator is not necessary. What
is necessary is that, in the opinion of reasonable men, there is a real
likelihood of bias in the circumstance of the case. The reason for not insisting
on actual proof of bias is that it is extremely difficult to prove, on a balance
of probabilities, that a person required to act in an adjudicative capacity was
in fact biased. Bias is an attitude of mind leading to a predisposition towards
the issue. Because of this circumstance, the law looks "to suspicion" rather to
the 'likelihood' of bias arising from the factual situation in which the
particular adjudicator is placed".
        The Law in India is not at much variance with English Law. In A.K.Kraipak
V. Union of India7 the "reasonable likelihood" test was applied by the Apex
Court. In the case before the Supreme Court, an acting Chief Conservator of
Forest was himself a candidate for promotion and being an ex officio member of
the Selection Committee he was himself a member of the selection committee and
was also selected for the All India Service. Though he did not participate in
the deliberations of the Committee, when his name was considered, the Court
observed:
"The real question is not whether he was biased. It is difficult to prove the
state of mind of a person. Therefore, what we have to see is whether there is
reasonable ground for believing that he was likely to have been biased.  ... a
mere suspicion of bias is not sufficient. There must be a reasonable likelihood
of bias" (Emphasis added).

        In Ashok Kumar Yadav V. State of Haryana8,  while dealing with a case
where a member of the Selection Committee before which his close relative was
interviewed as a candidate, the Supreme Court, while applying the test of
"reasonable likelihood" of bias, held as under:
"If a selection committee is constituted for the purpose of selecting candidates
on merits and one of the members of the Selection Committee is closely related
to a candidate appearing for the selection, it would not be enough for such
member merely to withdraw from participation in the interview of the candidate
related to him but he must withdraw altogether from the entire selection process
and ask the authorities to nominate another person in his place on the selection
committee, because otherwise all the selections made would be vitiated on
account of reasonable likelihood of bias affecting the process of selection".

        In R.L.Sharma V. Managing Committee9, the Supreme Court observed:  
"The test of bias is whether a reasonable intelligent man, fully apprised of all
the circumstances, would feel a serious apprehension of bias".

In the context of fair trial, while formulating the concept of 'triangulation'
of interests of the accused, victim and society, the Supreme Court in Zahira
Habibullah Sheikh Vs. State of Gujarat10, emphasized the need for the fair trial
and balancing of competing interests of the trio. The Supreme Court held that
the principle of a fair trial has emerged in the process of evaluation of
jurisprudence as part of the fundamental rights guaranteed under Articles 21 and
14 of the Constitution of India. This concept is reiterated in Zahira Habibullah
Sheikh Vs. State of Gujarat11.
In Police Commissioner, Delhi Vs. Registrar, Delhi High Court12, the Supreme
Court held that assurance of a fair trial is the first imperative of the
dispensation of justice as Article 21 of the Constitution ensures and guarantees
the precious right of life and liberty of a person deprivable only on following
the procedure established by law in a fair trial.
In my opinion, fair investigation is as much a part of constitutional scheme as
fair trial, for, while a guilty cannot be allowed to escape punishment, an
innocent cannot be punished. Article 21 of the Constitution of India guarantees
every person right to life and personal liberty subject to the exception that he
can be deprived of the same only through the procedure established by law. The
provisions of the Code of Criminal Procedure, 1973 lay down the procedure for
investigation and it is axiomatic that such procedure shall be reasonable and
fair. A person with a biased mind is not expected to conduct fair investigation
and unfair investigation may eventually lead to conviction of the accused, which
would be in violation of Article 21 of the Constitution of India. Therefore, to
protect the guaranteed fundamental right of a person of life and personal
liberty, it is most essential that the investigation officer should be free from
bias.
I have carefully weighed the allegations of bias attributed to respondent No.4
and the local police in the light of the legal position as discussed above. In
judging this aspect, order dated 7-12-2007 passed by the Judicial I Class
Magistrate, Nandyal, assumes great relevance. The said order was passed on the
private complaint given by petitioner No.1 against Dr.S.Intiaj Ahmed and five
Police personnel. The gist of his complaint was referred to earlier in this
order. After examining six witnesses, including the petitioners herein, the
learned Magistrate has given the following finding:
"On perusing the complaint and the oral evidence of PWs.1 to 6 and the
documentary evidence of Exs.P.1 to P.17 it is clear that the complainant is
having some civil disputes with A.1 and A.1 is very influenced person in Nandyal
town and A.1 influenced A.2 to A.6 to assist the complainant. As per the
averments of the complaint and the oral evidence of PWs.1 to 6 it is clear that
A.2 to A.6 beat the complainant indiscriminately at the instigation of A.1 in
order to do some favour to the A.1. Therefore, this is a fit case to proceed
against the accused for the following offences punishable under Sections 341,
326, 324, 329, 120-B r/w.149 of Indian Penal Code.

Hence, this complaint is taken on file as PRC No.130/2007 for the offences
punishable under Sections 341, 326, 324, 329, 120-B r/w.149 of Indian Penal
Code. Issue summons to the accused on payment of process. The summons entrusted    
to the SHO., II Town Police Station with direction to serve the summons on A.1
to A.6 and produced them before this Court on 2-1-2008".

In my considered view, this order of the criminal Court, by which cognizance of
petitioners' complaint was taken as PRC No.130 of 2007 against Dr.S.Intiaj Ahmed
and the Police officers is a strong circumstance for the petitioners to
apprehend that the said Dr.S.Intiaj Ahmed (A.1) and the local Police, some of
whom are accused, have developed a serious grudge against them. The further fact
that respondent No.4 has not denied his acquaintance with Dr.S.Intiaj Ahmed, the
prime accused in the said PRC., also gives rise to reasonable apprehension in
the petitioners' mind that respondent No.4 was behind the complaint given by
respondent No.6. Irrespective of whether these apprehensions are true or not, a
person, who is facing accusation of commission of an offence, is entitled to
demand a fair investigation, which is a sine qua non for proper administration
of criminal justice system.
As noted above, the uncontroverted facts, which establish a nexus between
respondent No.4 and Dr.S.Intiaj Ahmed and the local Police, having regard to his
past service at Nandyal, constitute reasonable basis for the petitioners'
apprehension that there is a likelihood of bias on the part of respondent No.4
and other local Police and that they may act prejudicial to the petitioners'
interests while investigating Crime No.162 of 2008 registered against them.
        Ordinarily, the Constitutional Courts are slow in entertaining Writ
Petitions of this nature, but in appropriate cases they exercise their
extraordinary jurisdiction to redress the rightful grievances of the affected
parties.
        In Babubhai Jamnadas Patel vs. State of Gujarat and others13 the Supreme
Court held:
        "The Courts, and in particular the High Courts and the Supreme Court, are
the sentinels of justice and have been vested with extraordinary powers of
judicial review and supervision to ensure that the rights of the citizens are
duly protected.  The Courts have to maintain a constant vigil against the
inaction of the authorities in discharging their duties and obligations in the
interest of the citizens for whom they exist.  This Court, as also the High
Courts, have had to issue appropriate writs and directions from time to time to
ensure that the authorities performed at least such duties as they were required
to perform under the various statutes and orders passed by the administration."

        Existence of power of the superior Courts to order for investigation by an
independent agency is recognized in a slew of authorities of the Apex Court. In
Mohammed Anis Vs. Union of India14, a Police Officer of the cadre of Inspector
General was appointed as investigation officer in a case involving death of ten
persons in encounters between the Punjab Militants and the local Police. In a
Public Interest Litigation (for short "the PIL"), the Supreme Court directed
entrustment of investigation to Central Bureau of Investigation (for short "the
CBI"). A Police Inspector approached the Supreme Court in the name of PIL with
the plea that entrustment of investigation to CBI is destructive of the
exclusive power of the State of Uttar Pradesh and is in flagrant disregard of
the mandatory provisions of the Code of Criminal Procedure, 1973. While
rejecting the said petition, the Apex Court held that as the local Police
officers were involved in the alleged killings and the allegations were mainly
directed against them, doubts were expressed regarding the fairness of the
investigation by an officer of the U.P. cadre, and entrusted the investigation
to the CBI, without expressing any opinion on the allegations. It has felt that
no matter how faithfully and honestly the local police may carry out the
investigation, the same will lack credibility as the allegations were directed
against them. While referring to its power conferred by Article 142 (1) of the
Constitution of India, the Supreme Court, however, held that the power must be
exercised sparingly for furthering the ends of justice.
        In Ramesh Kumar Vs. State15 a report was lodged against certain Police
personnel by a victim. As FIR was not registered, he has approached the Supreme
Court, which, while finding fault with non-registration of the case, directed
registration of the case and entrustment of investigation to CBI as the
allegations were made against the Police.
        Similarly, in a recent judgment in Rubabbuddin Sheikh Vs. State of
Gujarat16 the Supreme Court directed investigation to be entrusted to CBI as the
Gujarat State Police personnel were some of the accused in the alleged fake
encounter of Sohrabuddin.
        In Koganti Lakshmi Vs. State Government of Andhra Pradesh17, on a review 
of case law, this Court directed entrustment of investigation of a criminal case
to the CBCID to ensure that fair and impartial investigation is held into the
serious complaint of burglary/robbery allegedly committed in a Jewellary shop at
Vijayawada. 
        Coming to the submission of the learned Assistant Government Pleader that
respondent No.3 submitted a report to respondent No.2, I have carefully gone
through the said report. A perusal of the said report shows that respondent No.3
has failed to address himself to the core issue raised by the petitioners, viz.,
whether there is any reason for the petitioners to apprehend bias on the part of
respondent No.4. Instead, respondent No.3 has solely relied upon the reports of
the Sub-Divisional Police Officer, Nandyal and respondent No.4. None of these
officers have gone into the grievance of the petitioners and tried to redress
the same. 
        On a careful consideration of the facts of this case, it cannot be held
that the apprehensions expressed by the petitioners are without any basis. I am,
therefore, of the opinion that interests of justice would be served if the
investigation is entrusted to an agency, other than the local Police, as serious
allegations have been made against them. It is, however, made clear that this
order shall not be understood as this Court expressing its conclusive opinion
either on the professed innocence of the petitioners or on the allegations of
the petitioners against respondent No.4 or the other local Police officials.
        On the premises as above, the Writ Petition is allowed. Respondent No.3 is
directed to transfer Crime No.162 of 2008 on the file of respondent No.5-Police
Station to C.B.C.I.D. for further investigation.

?1) (1924) 1 K.B.256.
2) (1955) 1 QB 41
3) (1960) 2 Q.B.167
4) (1969) 1 Q.B.577.
5) (1993) 2 W.L.R.883.
6) (1921) 61 DLR 656
7)AIR 1970 SC 150
8)AIR 1987 SC 454
9) (1993) 4 SCC 10
10) (2004) 4 SCC 158.
11) (2006) 3 SCC 374
12) AIR 1997 SC 95
13 (2009) 9 SCC 610
14) 1994 Supp (1) SCC 145
15) (2006) 2 SCC 677
16) (2010) 2 SCC 200
17) 2010 (3) ALT 200


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