Basamsetti Rama Devi v. The State of A.P. & Ors.

1. “…but what happens after a person is arrested or detained? His troubles begin then. When he is detained or arrested and he is in the clutches of the police, he is alone in the world, and the forces of the police, the forces of the Crown and all other forces combine against him and he is helpless.” The above excerpt is from a Constituent Assembly Debate on 15th September, 1949 wherein Pandit Thakur D. Bhargava was flagging concerns to protect the detained individuals from the tyranny of police while debating amendments to the rights of detained persons. Even though the said concern was expressed almost 76 years ago, the trepidation surrounding police custody and the helplessness that it entails still echo as true as ever. The case at hand unfortunately is a precise example of uncertainty and vagaries that might follow once a person is taken into custody. Even though our Constitution and procedural laws stipulate sufficient safeguards to protect the rights of detainees, there comes every now and then a case such as instant one which leads to a plethora of unanswered questions, unending misery of aggrieved persons for decades and is enough to shake the public confidence in police force. In such a regrettable state of affairs, it becomes the solemn duty of the Courts of law to uncover the truth, take to task every offending individual and ensure that the basic rights of every human are preserved, be it a detainee, an accused or a convict. However, the set of events that unfold here woefully depict how the judiciary also has failed in its commitment to uphold justice and gave a clean chit to the accused persons before a trial could even begin, in an offence as gruesome as custodial death.

2. The present appeals have been preferred by the respective original complainants against the common impugned judgment and order dated 17.10.2014 passed by the High Court of Judicature at Hyderabad for the State of Telangana and Andhra Pradesh in Criminal Revision Petitions being Crl. R.C. No. 656 of 2007 and Crl. R.C. No. 1402 of 2009.

3. The two appeals arise from different factual matrix and involve distinct parties but were heard and disposed of together by the High Court since they involved the similar issue relating to quashing of criminal complaint against the police officials in matters of custodial death. For the sake of clarity, the facts giving rise to both the appeals and submissions extended by the parties in each of the matters are narrated distinctively in the following paragraphs:

4. Criminal Appeal No. 1358/2024 4.[1] In the instant case, the accused-respondents were working as police officers in the Governorpeta Police Station, Vijayawada. The appellant herein is the original complainant and the paternal aunt of K. Srinivasa Rao @ Budda Santhan (hereinafter referred to as ‘the deceased’). It was alleged by the complainant that the Accused No. 1, the then Commissioner of Police, Vijayawada, without conducting any enquiry, declared before the press that the deceased and another person are responsible for the killing of one Edupuganti Satyanarayana of Telugu Desam Party, which took place on 09.07.2002. The deceased was declared as a rowdy sheeter by the Accused No. 1 and on 13.07.2002, the Accused No. 1, after holding the press conference, paraded the deceased and two other persons as murderers of Satyanarayana. Soon after the press conference, they were produced before the concerned Magistrate who took them in judicial custody and directed the accused persons to produce them before the Magistrate on 15.07.2002. The accused persons kept the deceased and others in police lock-up and at around 8.00 p.m. on 13.07.2002, the Accused No. 5, i.e. the ASI of Governorpeta Police Station, Vijayawada, went to the house of the deceased and obtained the signatures of the mother of the deceased on blank papers. 4.[2] Thereafter, on the morning of 14.07.2002, at around

5.30 a.m., the Accused No. 5 came to the house of the deceased and informed his kith and kin that the deceased was shot dead by the police and his body was in a Government Hospital. The appellant-complainant, mother and sister of the deceased rushed to the hospital and found that the body of the deceased had two bullet injuries, one on the head and the other on the chest of the deceased. 4.[3] Subsequently, the appellant-complainant filed a private complaint before the V Metropolitan Magistrate, Vijayawada under Sections 190 and 200 of Criminal Procedure Code, 1973[1] against the then Commissioner of Police, Vijayawada (A[1]), Assistant Commissioner of Police, Vijayawada (A[2]), Sub-Inspector of police, Governorpeta Police Station (A[3]), Sentry (A[4]), and the ASI of Governorpeta Police Station (A[5]) under Sections 302, 201, 149, 120B read with Section 34 of the Indian Penal Code, 18602. Upon filing of abovesaid complaint, the III Metropolitan Magistrate, Vijayawada in CF NO. 10113 of 2002 in P.R.C. No. 13 of 2003 vide its order dated 02.05.2003, took the case on the file against all the accused persons for the offences under Sections 302, 201,149,120B read with Section 34 of IPC, got issued non-bailable warrants against the accused persons and directed the DGP to execute the said warrants. 4.[4] Aggrieved by the above order, A[1] and A[2] filed a Revision Case before the High Court, being Crl. R.C. No. 699 and 700 of 2003. The High Court, vide an order dated 27.05.2003, granted an interim stay on all the Cr.P.C. IPC proceedings in C.F. No. 10113 of 2002 in P.R.C. No. 13 of 2003. Subsequently, the High Court, while disposing both the Revision Petitions, vide its order dated 21.04.2006, had confirmed the cognizance order dated 02.05.2003 against A[2] but set it aside against A[1], as no prima facie case was found to be made against A[1]. 4.[5] Consequently, the 1st Additional CMM, Vijayawada passed a committal order dated 01.12.2006, thereby committing the case to the Court of Sessions, Vijayawada under Section 209(a) of Cr.P.C., against A[2] to A[5]. This order of committal was challenged by A[3] by preferring Revision Petition being Crl. R.P. 29 of 2007. Similarly, against the said committal order, A[4] and A[5] also preferred Crl. R.C. No. 656 of 2007. 4.[6] The High Court, in the above-said Revision Petition NO. 656 of 2007, vide order dated 13.06.2007, granted an interim stay on the proceedings. 4.[7] In the meanwhile, the appellant-complainant had preferred SLP No. 451 of 2007 before this Court against the order dated 21.04.2006. This Court passed an interim order dated 21.07.2008 directing the Central Bureau of Investigation[3] officials to conduct an enquiry considering the allegations made by the appellantcomplainant. Accordingly, the CBI investigated into the death of the deceased, involvement of A[1] in that case CBI and filed a report before this Court. Based upon the report submitted by the CBI, this Court, vide order dated 04.08.2009, refused to interfere with the order passed by the High Court in Crl. R.C. 699 and 700 of 2003 dated 21.04.2006. 4.[8] It was also stated by the appellant that she came to know about the CBI report for the first time in 2011 through print media and, consequently, filed a petition before the Court of the Ist Metropolitan Magistrate at Vijayawada seeking a copy of the report to enable her to file her objection. 4.[9] The High Court, vide the impugned order, allowed Crl. R.C. No. 656 of 2007 filed by the accused-respondents being A[4] and A[5], and set aside the committal order dated 01.02.2006 passed by the Magistrate in taking cognizance of offence against the respondents in P.R.C. No. 13 of 2003. The High Court held that the earlier investigations conducted by the officials of CID, RCIU, Vijayawada and re-confirmed by the CBI clinchingly establish that the occurrence took place in exercise of right of self-defence, and thus revision stood allowed.

4.10 Aggrieved by the impugned order passed by the High Court, the complainant-appellant is before us.

4.11 We have heard the learned counsel for the parties and perused the material on record.

4.12 The learned counsel for the appellant submitted that the High Court failed to apply its judicious mind to the facts of the present case while dismissing it without even considering the individual facts of the appellant’s case. It was further contended that the Addl. Chief Metropolitan Magistrate had, on a proper appreciation of evidence and on evaluation of the statement of witnesses, rightly formed a prima facie case against A[4] & A[5] which ought not to be quashed by the High Court at this stage. The appellant also submitted that the accused-police officials killed the deceased while he was in judicial custody in order to suppress the truth about the murder of Edupuganti Satyanarayana of Telugu Desam Party and to protect the real culprits behind the killing. Lastly, the appellant had pleaded that a proper trial ought to have been conducted to uncover the truth wherein the ground of self-defence which has been adopted by the accused persons could have been assessed based on evidence and witness statements, and therefore, the High Court’s interference with the FIR at the threshold was highly unwarranted.

4.13 Before moving to the respondents’ arguments before us, we find it pertinent to recount herein the chain of events which led to the killing of the deceased as per the accused-police officials and the same have been submitted by them before the investigating agency, i.e. the CBI. It was claimed by the Sub-Inspector of Police (A[3]) that at about 03.00 am on 14.07.2002, A[3] had taken the deceased K. Srinivasa Rao from the lock up to elicit more information about the murder of Edupuganti Satyanarayana. It was alleged that while A[3] was questioning the deceased, the deceased snatched the Service Revolver of A[3] which was kept on the table and fired two rounds at A[3]. Then as per orders of A[3], A[4] fired two rounds from his 303 Rifle on the deceased to save A[3] and resultantly, the deceased died of the injuries sustained due to the firing.

4.14 As such, it has been pleaded by the accusedrespondents that the deceased person was killed in the police firing in an act of self-defence. The said act being committed in due discharge of their official duty as public servants and in exercise of the right of private defence, the Magistrate was barred under law from taking cognizance of the alleged offence without there being any prior sanction from the competent authority as contemplated under Section 197 of Cr.P.C.

4.15 Further, it was submitted that the complainant is not an eye-witness to the alleged case of fake encounter and the CBI, in its final report, had conclusively observed that occurrence took place in exercise of right of self-defence, therefore, the High Court had rightly allowed the revision petition and set aside the committal order against accused-respondents.

5. Criminal Appeal No. 1359/2024 5.[1] In this matter as well, the accused-respondents were working as police officers in Vijayawada at the time of the alleged incident. The appellant herein is the original complainant and sister of V. Durga Prasad @ Pilli Durga Prasad (hereinafter referred to as ‘the deceased’). It was alleged in the written complaint filed by the complainant under Sections 190 and 200 of the Criminal Procedure Code, 1973 (‘Cr.P.C.’, hereinafter) before the Court of III Metropolitan Magistrate, Vijayawada that her brother, Durga Prasad (the deceased), was shown as an accused in Cr. No. 75 of 2001 under Section 302 of IPC before Vuyyuru Police Station and also in Cr. No. 165 of 2001 under Section 302 of IPC before Machavaram Police Station. It was alleged that in both these cases, the police vigorously tried to take forcible confessional statements from the deceased and as a part of it, on 14.05.2002, Krishnashila Police took away the appellant’s father and the younger brother i.e. one Naveen to the police station and wrongly confined them. As a consequence, the deceased, apprehending danger to his own and his family members’ life, decided to surrender before police on his counsel’s advice. 5.[2] Thereafter, on 15.05.2002, the deceased was taken into police custody and was taken to Machavaram Police Station, and his father and brother were consequently released. The deceased was produced before the Magistrate for judicial remand in Cr. No. 75 of 2001 of Vuyyuru Police Station and he was remanded to judicial custody at Gannavaram sub-jail. Subsequently, the Accused No. 2, i.e. the Sub- Inspector of Police, Machavaram Police Station, moved an application for Prisoner in Transit (P.T.) warrant against the deceased under Section 267 of Cr.P.C. which was issued by the Court on 28.05.2002. The deceased was accordingly remanded for judicial custody to District Jail, Vijayawada in relation to Cr. No. 165 of 2002 of Machavaram Police Station. 5.[3] The Accused No. 2 had also filed the memo for requisition under Section 167(3) of Cr.P.C. seeking police custody which was granted by order dated 03.06.2002 and the deceased was permitted to be taken to police custody for two days on 04.06.2002 and 05.06.2002. Earlier on 31.05.2002, when the brother of the deceased Naveen had visited him in jail, the deceased had shared his apprehension regarding being physically tortured by the police officials. It was further alleged that at around 9.30 p.m. on 05.06.2002, the Accused No. 2 along with the police constables (Accused Nos. 4 and 6) came to the appellant’s house and enquired about the whereabouts of the deceased under the pretext of search. 5.[4] On the morning of 06.06.2002, news was flashed to the media by the police officials stating that the deceased has escaped from Machavaram Police Station while he was being taken to attend nature’s call and that a search has been launched to find the deceased after registering a case in Crime No. 444 of 2002 under Section 224 of the IPC against the deceased. However, at around 6 a.m. on 08.06.2002, the Accused No. 5, who was working as a Police Constable at Machavaram Police Station, informed the family members of the appellant that the police have killed the deceased and have thrown his body near Gunadala Railway Track. The appellant along with her family members rushed to the spot and found the body of the deceased lying near a shed in the fields. There were no blood stains found at the spot but there were multiple bullet injuries on the body of the deceased – one on the left side of the chest below the level of the rib, one on the right side of the back of the chest and another on the back of the left side of chest and an abrasion on the root of the nose. The M.R.O. and other Revenue Officials visited the spot and recorded the statements from the appellant and other family members. 5.[5] Thereafter, the appellant, with assistance from the Bezawada Bar Association and Human Rights Forum, filed the said complaint dated 10.12.2002 before the Court of III Metropolitan Magistrate, Vijayawada against the Commissioner of Police, Vijayawada (A[1]), Sub-Inspector of Police, Thotalavalluru Police Station, Thotalavalluru Vuyyuru Mandal (A[2]), North Circle Inspector, Satyanarayanapuram, Vijayawada (A[3]), Head Constable, Machavaram Police Station (A[4]), Police Constable, Machavaram Police Station (A[5]) and another Police Constable, Machavaram Police Station (A[6]) under Sections 302, 201, 149, 120B read with 34 of IPC alleging that the deceased was tortured by the accused persons in long periods of wrongful detentions and eventually killed him. They created a fake encounter story to evade criminal liability. 5.[6] The Addl. Chief Metropolitan Magistrate, vide order dated 09.12.2005 passed in C.F. No. 4313 of 2003, took the case on file against A[2] and A[4] to A[6] for the offences under Sections 302, 201, 120B read with 34 of IPC as prima facie case was found to be made against them and dismissed the complaint against A[1] and A[3]. Being aggrieved by the order passed by the Magistrate refusing to take cognizance against A[1] and A[3], the appellant had filed a Revision Petition being Crl. Rev. Petition No. 88 of 2006 before the Court of Sessions, Metropolitan Division, Vijayawada which was dismissed vide order dated 06.11.2006. 5.[7] After the Magistrate took cognizance of the offence and committed the case to Sessions Court for trial, A[2] filed a Crl. M.P. No. 567 in P.R.C. 10 of 2005 for dismissing the complaint as the offence had taken place while discharging the official duties. The said application was dismissed by the Magistrate vide order dated 24.01.2007 against which A[2] had also preferred a Criminal Revision Case being Crl. R.C. No. 377 of 2007 which was dismissed by the High Court as well, while granting the liberty to file an application at the time of framing charges. 5.[8] In the meanwhile, on a complaint by the Bezwada Bar Association and National Human Rights Commission, New Delhi, the investigation of the matter was handed over to CID which submitted its final report dated 31.07.2008 on 11.08.2008 to the Court of III Metropolitan Magistrate, Vijayawada. Additionally, since A[4] had not attended the court proceedings and non-bailable warrants were pending against him since a long time, the case was split up against him and renumbered as P.R.C. 39 of 2008 as against A[2], A[5] and A[6]. The case was re-committed to the Court of Sessions as S.C. No. 248 of 2008 on the file of VII Addl. District and Sessions Judge (Fast Track Court), Vijayawada. At the stage of framing of charges, A[2], A[5] and A[6] again preferred Crl. M.P. No. 174, 106 and 140 of 2009 respectively seeking discharge from the charges. However, the Sessions Judge, vide order dated 15.07.2009, dismissed all these petitions while observing that after considering the broad probabilities of the case, total facts of the evidence and documents produced before the court, the Petitioners therein (A[2], A[4] and A[6]) were not entitled for discharge. 5.[9] Aggrieved by the order dated 15.07.2009, A[2], A[5] and A[6] filed Revision Petition being Crl. R.C. No. 1402 of 2009 before the High Court along with Crl. M.P. NO. 1928 of 2009 seeking stay of all further proceedings.

5.10 The High Court, vide the impugned order allowed the Crl. R.C. No. 1402 of 2009 and set aside the order dated 15.07.2009 passed by the VII Addl. District and Sessions Judge (Fast Track Court), Vijayawada and accordingly allowed the Crl. M.P. No. 174, 106 and 140 of 2009, effectively discharging the accusedrespondents from the charges. The High Court held that the earlier investigations conducted by the officials of CID, RCIU, Vijayawada and re-confirmed by the CBI clinchingly establish that the occurrence took place in exercise of right of self-defence, and thus revision stood allowed.

5.11 Aggrieved by the impugned order passed by the High Court, the complainant-appellant is before us.

5.12 We have heard the learned counsel for the parties and perused the material on record.