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2000 DIGILAW 257 (AP)

P. John Abraham v. State Of A. P.

2000-04-03

B.SUBHASHAN REDDY

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B. SUBHASHAN REDDY, J. ( 1 ) THE petitioner herein prays for a writ of Mandamus directing the Sub-Inspector of Police, I-Town Police Station, Chittoor not to execute the Non-bailable Warrant dated 19-4-1999 in PRC No. 35/94 in Cr. No. 191/1993 on the file of the learned Vth Addl. Munsif Magistrate, Chittoor. ( 2 ) THE averments and allegations made in the affidavit filed in support of the writ petition are very brief and they may have to be noticed before adverting to the question as to whether the petition is entitled for any relief at all. ( 3 ) THE petitioner by profession claims to be a Teacher. Admittedly, he worked till 1989 as a Principal of Good Shepherd School in Chittoor. He worked at Infent Jesus School at Nellore from 1989 to 1991. He joined in St. John s School in Poonamalle as the Vice-principal on 1-9-1993. ( 4 ) THE second respondent herein tried to serve a non-bailable warrant pending in P. R. C. No. 35 of 1994 in Cr. No. 191 of 1993 on the file of the file of the learned Vth Addl. Munsif Magistrate, Chittoor. According to petitioner, the said non-bailable warrant is issued against one John Abraham s/o. Johnson aged about 37 years r/o Katpadi. The said John Abraham is shown as accused No. 2 in the said criminal case. The petitioner claims that his father s name is Pullaiah Nadar and he is aged about 63 years and he never stayed at Katpadi. According to him, it is a case of mistaken identity between himself and accused No. 2 in the said criminal case. In the circumstances, the petitioner contends that the non-bailable warrant issued in P. R. C. No. 25 of 1994 in Cr. No. 191/1993 cannot be executed against him. This is all the case put-forth by the petitioner. ( 5 ) THE action of the second respondent herein in executing the non-bailable warrant issued by a competent Court of Criminal Jurisdiction in P. R. C. No. 35 of 1994 is arbitrary and violative of Fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India. ( 6 ) LEARNED senior counsel appearing on behalf of the petitioner made the very same submissions. ( 6 ) LEARNED senior counsel appearing on behalf of the petitioner made the very same submissions. Learned senior counsel also contends that every action of the State including the Police in the matter of investigation of the criminal case is required to be fair and reasonable. The petitioner should be given an opportunity before some body now to be nominated by the Court to establish that he is not the person against whom the non-bailable warrant is issued and until such an enquiry is made and completed, the second respondent should be restrained from executing the non-bailable warrant. ( 7 ) THE averments made in the counter-affidavit may have to be noticed. It is inter alia stated that the petitioner herein was involved in serious offences punishable under Secs. 332, 307, I. P. C. read with Sec. 34, I. P. C. and the case has been registered in Cr. No. 191/1993 on the file of the I-Town Police Station, Chittoor. The details of the case in which the petitioner is alleged to have been involved in brief, are that the de facto complainant one J. Uthrinathan, P. C. 1945 of Chittoor I Town Police Station was attacked by one Charless s/o Sekhar (A. 1) and John Abraham (the petitioner herein) and another person whose identity was not known, on 30-9-1993 at about 5. 20 a. m. near Kannar College, Chittoor. The motive for the alleged offence is that on 12-10-1991 one Priya Seelan Jayaseelan and Zakriya of Kongareddipalle committed murder of one T. T. Ravi and the accused in that case were convicted in S. C. No. 267 of 1992 by the District and Sessions Judge, Chittoor and those accused are alleged to be relatives of the accused in the present case including the petitioner herein. The deceased in the murder case by name t. T. Ravi was the brother-in-law of the de facto--complainant. It is the case of the police that there are disputes between accused No. 1 and the petitioner herein on the one hand and the de facto-complainant on the other. Accused No. 1 in the case is alleged to have surrendered himself before the Court, whereas the petitioner (A2) has been absconding ever since from the date of offence. It is the case of the police that there are disputes between accused No. 1 and the petitioner herein on the one hand and the de facto-complainant on the other. Accused No. 1 in the case is alleged to have surrendered himself before the Court, whereas the petitioner (A2) has been absconding ever since from the date of offence. The case against A. 1 was split up and the case ended in conviction in Sessions Case No. 409 of 1994 on the file of the learned Principal Asst. Sessions Judge, Chittoor. ( 8 ) IT is the case of the Police that after thorough investigation and as per the evidence available, charge sheet was filed against the petitioner herein as there is substantial material to prove the involvement of the petitioner herein along with A. 1 and another person. The other details mentioned in the affidavit relating to the investigation of the case need not be noticed, as any opinion from this Court at this stage, may cause unnecessary and avoidable prejudice to the parties. It is asserted that A. 2 in the said case is none other than the petitioner. ( 9 ) IT is admitted that the father s name of the petitioner is stated in the charge sheet as Johnson and his residence is shown as Katpadi. Since the accused could not be apprehended, his father s name could not be correctly elicited and therefore mentioned in the charge sheet. It is stated in categorical terms that the petitioner herein is in the habit of giving different names and different addresses at different places. It is stated that the enquiries reveal that while the petitioner worked as Principal in Good Shepherd High School, Chittoor he has not given his father s name at all. It is stated that during the month of June 3rd week the brother of the de facto-complainant and other family members in their routine course viewed a programme of St. Jhons Residential School at Madras in SUN TV Channel on the eve of presenting a cheque to the Chief Minister of Tamilnadu for Kargil relief fund and found that the petitioner herein was present there as a member of the staff of the School and the information was accordingly given by the de facto-complainant to the Sub-Inspector of Police, I Town Police Station, Chittoor. During the enquiry, it was found that the address furnished by the authorities at Chittoor was not correct and with great difficulty, the police could find out the petitioner s correct address and accordingly made an attempt to execute the non-bailable warrant issued against him. On 9-2-2000 the staff of I Town Police Station gave the requisition letter to the School at Poonamalle with a view to ascertain the correct address of the petitioner and the name of his father so as to find out as to whether he is the same person required in connection with the investigation of the case. The School authorities in writing gave a reply stating that the father s name of the petitioner as per the school records is that "late Mr. Paul". ( 10 ) IN the additional affidavit, it is stated that this very petitioner was earlier involved in Crime No. 266/1991 of Chittoor I Town Police Station under Sec. 8 (c) r/w Sec. 20 (b) (1) of N. D. P. S. Act as he was found in possession of 500 grams of Ganja and in connection with that case he was remanded to judicial custody. He was released on bail in Crl. M. P. No. 5505 of 1991 and in the said bail petition his address was mentioned as John Abraham s/o. Paul aged about 60 years. In the charge sheet filed in that case his name and address was shown as John Abraham, age 57 years s/o. Pal of Vedpalyam, Nellore, Andhra Pradesh. ( 11 ) THIS in short is the story and history of the petitioner who invokes the extraordinary jurisdiction of this Court under Art. 226 of the Constitution of India complaining of infringement of his fundamental right guaranteed by Arts. 14 and 21 of the Constitution of India. ( 12 ) NOW it is not possible for this Court to express any opinion whatsoever as to whether it is the petitioner who is involved in the criminal case which is the subject matter of P. R. C. No. 35 of 1994. But at the same time, the Court cannot reject the investigation itself made by the police. In my considered opinion, the writ petition is totally misconceived and frivolous in its nature. ( 13 ) THE Code of Criminal Procedure, 1973 is a self-contained Code. But at the same time, the Court cannot reject the investigation itself made by the police. In my considered opinion, the writ petition is totally misconceived and frivolous in its nature. ( 13 ) THE Code of Criminal Procedure, 1973 is a self-contained Code. It is not the case of the petitioner that the investigation is vitiated for any non-compliance with the mandatory provisions of the Criminal Procedure Code. The criminal law was set in motion against the petitioner herein after registering the First Information Report relating to commission of a cognizable offence. The power to register the information in cognizable cases is conferred upon the Police under Sec. 154 of the Criminal Procedure Code, 1973 (for short the Code ). It may be required to notice that Sec. 169 of the Code confers power upon the officer in charge of the police station to release an accused person from custody with or without sureties if there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate. This is an inbuilt safeguard provided for by the Code which would enable an officer in charge of the police station to release an accused, if the evidence is not sufficient and if there is no reasonable ground of suspicion to justify the forwarding of such accused to a Magistrate. In the instant case, the Police having investigated the case found the petitioner herein to have committed an offence punishable Ss. 332 and 307, IPC r/w 34, I. P. C. That is the result of the investigation. The allegations levelled against the petitioner may be true or not, the same may have to be decided by a competent court of criminal jurisdiction after trial. Of course, an accused is always be entitled to ask the competent Court of criminal jurisdiction for his discharge under Sec. 227 of the Code. That is the another safeguard provided to an accused in a criminal case. The Judge, upon consideration of the record of the case and the documents and after hearing the submissions of the accused and prosecution in that behalf may discharge an accused if he considers that there is no sufficient ground for proceeding against the accused in the case. Therefore, the contention that the accused has no remedy is totally untenable and the contention is accordingly rejected. Therefore, the contention that the accused has no remedy is totally untenable and the contention is accordingly rejected. ( 14 ) LEARNED senior counsel places reliance upon the following decisions in Re H. K. (An Infant), 1967 (2) QB 617 and in Re Pergamon Press Ltd. , 1970 (3) All ER 535. Learned senior counsel also relied upon the decision in Management of M/s. Nally Bharat Engineering Co. Ltd. v. State of Bihar, (1990) 2 SCC 48 ; Neelima Misra v. Harinder Akur Paintal, (1990) 2 SCC 746 : ( AIR 1990 SC 1402 ) and in State of Haryana v. Bhajan Lal, 1992 SCC (Crl.) 426 : (1992 Cri LJ 527) in support of his submission that every action of the State and its instrumentalities is required to be fair. The action of the State wherever it is required, is to be in conformity with the principles of natural justice. Learned senior counsel invites my attention to a particular paragraph No. 7. 038 in De Smith Woolf and Jowell Judicial Review of Administrative Law1 which says that "since 1967 the Courts began to employ the term "duty to act fairly" to denote an implied procedural obligation-the contents of which may fall considerably short of the essential elements of a trial or a formal inquiry-accompanying the performance of a function that cannot, without overly straining linguistic usage, be characterized as judicial in nature. " I fail to appreciate as to how the said principle and Judgments would support the case of the petitioner. There is no factual foundation as such laid in the affidavit filed in support of the writ petition setting forth any ground as to how the investigation in the matter could be said to be vitiated. The petitioner if at all, is to be tried by a competent Court of criminal jurisdiction, where there would be a full-fledged trial in which the petitioner would be entitled for his defence. There cannot be any doubt whatsoever that such enquiry and trial before the Court of competent jurisdiction would undoubtedly be in accordance with the procedure prescribed by the Code which itself guarantees fairness in the matter of enquiry and trial. In my considered opinion, the principles of natural justice and the concept as understood in administrative law has no application to the proceedings in the matter of investigation of criminal by the investigating agency. In my considered opinion, the principles of natural justice and the concept as understood in administrative law has no application to the proceedings in the matter of investigation of criminal by the investigating agency. The legal position in this regard would clearly delineated by the Supreme Court in State of Haryana v. Bhajan Lal (supra) in which it is observed that : 1de SMITH, WOOF AND JOWELL JUDICIAL REVIEW OF ADMINISTRATIVE ACTION (5 th Edition) "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 falling under Chapter XII of the Code and the Courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds as aforementioned. Indeed, a noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stage of the police investigation but he is not authorized to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the Court on being approached by the person aggrieved for the redress of any grievance, has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution. It needs no emphasis that no one can demand absolute immunity even if he is wrong and claim unquestionable right and unlimited powers exercisable up to unfathomable cosmos. Any recognition of such power will be tantamount to recognition of divine Power which no authority on earth can enjoy. " ( 15 ) IN the instant case, it is not the case of the petitioner that the investigating officer deliberately implicated him in the criminal case. There is not even an allegation of any mala fides on the part of the Investigating Officer. The dispute relates to the identification of the accused. " ( 15 ) IN the instant case, it is not the case of the petitioner that the investigating officer deliberately implicated him in the criminal case. There is not even an allegation of any mala fides on the part of the Investigating Officer. The dispute relates to the identification of the accused. According to the petitioner he is not the person who is involved in the criminal case, which is the subject matter of P. R. C. No. 35 of 1994. But according to the police, the petitioner is the person who is involved in the case and the investigation discloses the said fact. Such questions relating to the identity of the accused may have to be decided only by a competent Court of criminal jurisdiction. The petitioner has to take such plea if he is so advised before the Criminal Court and the Court alone can resolve the same after appreciating the material and evidence available on record. If there is no material at all on record produced by the Investigating Officer, the Court can always discharge the petitioner. It is for the Criminal Court to decide the matter in accordance with law. ( 16 ) THIS Court in exercise of its judicial review jurisdiction cannot create another body in between the Courts and the Investigating agency for deciding the question as to whether it is the petitioner who is involved in the case or somebody else. The question relating to mistaken identity or the identification of an accused is required to be dealt with only by the Investigating agency and no other agency can be entrusted with such duty. Such a course is not permissible in law. ( 17 ) FOR the aforesaid reasons, I hold that the writ petition is totally misconceived and all the submissions made are totally devoid of any merit. ( 18 ) HOWEVER, it is made clear that this Court has not expressed any opinion whatsoever on the disputed questions of fact including the question relating to the identity of the accused in P. R. C. No. 35 of 1994. It shall be open to the petitioner to have all his defence in the criminal case. The Criminal Court shall not be influenced by any of the observations made in this order in disposing of the case. It shall be open to the petitioner to have all his defence in the criminal case. The Criminal Court shall not be influenced by any of the observations made in this order in disposing of the case. ( 19 ) SUFFICE it to declare that in the circumstances, this Court cannot interdict the Non-bailable warrant issued by the competent Court of jurisdiction and the second respondent herein cannot be prevented from carrying on and implementing the lawful directions of the Court. ( 20 ) THE writ petition fails and shall stand accordingly dismissed. No order as to costs. Petition dismissed.