Sanjeev Sirohi
Published on: 29 December 2022 at 20:07 IST
While noting that the Telangana State Chief Minister, K Chandrashekar Rao himself branded the accused in the Bharat Rashtra Samithi (BRS) MLA poaching case as conspirators and therefore, it can’t be said that SIT probe is being done in an unbiased and fair manner, the Telangana High Court in a most learned, laudable, landmark and latest judgment titled Bharatiya Janata Party & Ors vs State of Telangana in Writ Petition Nos. 39767, 40733, 42228, 43144 and 43339 of 2022 that was pronounced as recently as on December 26, 2022 deemed it fit to transfer the probe to the Central Bureau of Investigation (CBI).
What is most significant to note is that in its 98-page order, the Court minced no words to say categorically that in the political tussle between the BJP and the TRS party, the Constitutional and statutory rights of the accused seem to have been forgotten.
It must be mentioned that the Single Judge Bench of Hon’ble Mr Justice B Vijaysen Reddy made these observations while dissolving the Special Investigation Team (SIT) which was probing the case till now and ordered the CBI to conduct a de novo probe into the matter.
In its order, the Court noted that the SIT in the case was constituted to cover up the lapses of the investigation officers, however since the Chief Minister of the State had made public the investigation, CDs/Material, the same would cause reasonable apprehension in the mind of the accused about the fair and unbiased investigation, giving the court a reason to transfer the probe.
The Court said very clearly that, “When accused are condemned publicly and branded as conspirators levelling serious allegations by none other than the Hon’ble Chief Minister by conducting Press Meet and circulating the videos to the important Constitutional Functionaries, even before the charge sheet is filed and at the initial stages of the investigation, it cannot be said that investigation is being done in an unbiased and fair manner.”
It also merits mentioning that the Court also questioned as to how the CM got access to the material collected by the SIT. We must note that since the State government couldn’t give any explanation for the same, the Court observed that to say that no prejudice is caused to the accused is unreasonable and unacceptable.
In these circumstances, the Court opined that serious prejudice had been caused to the accused, who are branded publicly as conspirators, thereby depriving them of their rights to effectively defend the criminal proceedings and avail their legal remedies under the law.
At the very outset, this remarkable, refreshing, rational and recent judgment authored by the Single Judge Bench of the Telangana High Court comprising of Hon’ble Mr Justice B Vijaysen Reddy sets the ball in motion by first and foremost putting forth in para 1 that, “F.I.R. No.455 of 2022 was registered for the offences punishable under Sections 120-B and 171-B read with Sections 171-A and 34 of the Indian Penal Code 1860 (for short ‘IPC’) and Section 8 of the Prevention of Corruption Act 1988 (for short ‘PC Act’), on the file of the Station House Officer, Moinabad Police Station, Cyberabad Police Commissionerate on a report dated 26.10.2022 lodged by respondent No.8 in W.P. No.39767 of 2022. The said report is as under:
“I, Pilot Rohit Reddy, MLA, Tandur Assembly Constituency of Vikarabad District, inform you that I am an MLA from TRS party and representing the above constituency. It is to further inform you that on 26-09-2022, one Ramachandra Bharati @ Satish Sharma native of Delhi and one Nanda Kumar resident of Hyderabad both of them belonging to BJP met me and negotiated with me to not to contest as candidate from TRS party and to join in BJP by resigning from TRS party and to contest in the next elections from BJP for which they offered me an amount of Rs.100 Crores (Hundred Crores) and also offered to give Central Government civil contract works and other High Central Government positions for monetary benefits and lured me to join in BJP.
They also stated that if I am not joining in BJP there will be criminal case and raids by E.D./CBI and the Telangana Government led by TRS party will be toppled by them. Since the above inducement of bribe by a political party to me is unethical, undemocratic and encouraging corruption and polluting the Politics, I decided not to entertain such unethical practice by the above persons.
Today i.e. on 26-10-2022, they again contacted me and informed me that they are coming in the afternoon hours to my farmhouse located at Azeez Nagar, Moinabad for negotiation and also informed me to mobilise some other TRS MLAs for offering them bribe of Rs.50 Crores each to join BJP. They also further induced me and other MLAs to receive amounts and to discharge their public duties improperly and dishonestly so that the Telangana Government led by TRS party is destabilized.
They informed that three persons namely Ramachandra Bharati @ Satish Sharma of Delhi, one Nanda Kumar and one Simhayaji Swamy of Tirupathi would come to my farm house to finalize the deal of joining in BJP by resigning from TRS party.
Therefore, I request you to kindly take necessary legal action against the above persons and the persons behind this conspiracy for offering me bribe to resign from TRS and also to join in BJP by indulging in unethical and undemocratic ways of offering huge amounts as bribe.””
W.P. No.39767 of 2022 :
To put things in perspective, the Bench envisages in para 2 that, “2.1. This writ petition is filed by the petitioner – Bharatiya Janata Party, Telangana, represented by its State General Secretary Mr. Gujjula Premender Reddy on 27.10.2022 seeking writ of mandamus declaring action of the respondents in undertaking biased and unfair investigation in F.I.R. No.455 of 2022 with a sole intention to frame the petitioner political party and damage its reputation at the instance of the ruling party dispensation as being illegal, arbitrary and in gross violation of Articles 14 and 21 of the Constitution of India and also contrary to the settled principles of free and fair investigation and consequently to transfer the investigation in F.I.R. No.455 of 2022 from the file of respondent No.5 to respondent No.7 – the Central Bureau of Investigation, represented by its Director, New Delhi or to constitute a Special Investigation Team (SIT) to conduct enquiry in the said crime in a free and fair manner.
BRIEF AVERMENTS :
2.2. The election commission announced 03.11.2022 as the date for bye-election for 93 – Munugode Assembly Constituency and counting of votes was scheduled on 06.11.2022 vide its schedule for bye election No.ECI/PN/73/2022 dated 03.10.2022. During campaign, as the BJP Party was getting overwhelming response from the public of Munugode Assembly Constituency, the ruling TRS Party from the beginning of the election campaign was trying to disrupt campaign of the BJP Party and making several efforts to thwart campaigning in the constituency, but, in spite of the same, the voters of Munugode were responding positively towards the BJP Party.
The BJP Party has substantial base in the Telangana State and the people had been rooting for the BJP party as the next alternative to the present dispensation of the TRS Party.
On 26.10.2022 evening, few channels, which publicly support the ruling Government, carried out news that four (4) MLAs of the ruling TRS Party are being tried to be lured and poached by the members of the BJP to join the BJP and discussions regarding the same are happening at a farmhouse in Moinabad.
The said news was repeatedly aired in the said few channels giving out details of the alleged operation. Thereafter, in the late hours of 26.10.2022, respondent No.2 along with respondent Nos.3 and 4 – the Commissioner of Police Cyberabad Commissionerate, Gachibowli, Hyderabad and the Assistant Commissioner of Police, Rajendranagar Division, Rajendranagar, Hyderabad respectively arrived at the said farmhouse in Moinabad. Even before the police have arrived at the said farmhouse, certain news channels were already present at the farmhouse and were telecasting live pictures from the farmhouse.
Upon respondent No.3 and other officials visiting the farmhouse and on a preliminary search and enquiry at the farmhouse, police apprehended three (3) persons alleged to be workers of the BJP as they were allegedly luring the four (4) TRS MLAs to join its party.
2.3. The four (4) TRS MLAs were left scot free and surprisingly escorted by the respondents to the Hon’ble the Chief Minister’s residence at Pragathi Bhavan. Thereafter, respondent No.3 stated in a press meet that the three accused have offered four TRS MLAs a Rs. 100 crores cash each to join the BJP in the wake of Munugode bye-election. On further enquiry, it was revealed that respondent No.8 – Mr. Pilot Rohith Reddy, who is an MLA from Tandur Assembly Constituency belonging to TRS Party, lodged a complaint on 26.10.2022 at 11.30 a.m. to the Station House Officer, Moinabad alleging that the accused persons have approached him on 26.09.2022 and tried to lure him to join the BJP by resigning from TRS Party and to contest in the next elections from BJP for which he would be offered a huge amount of Rs.100 crores; and consequently FIR No.455 of 2022 was registered with Moinabad Police Station.
2.4. The above complaint is politically motivated with ulterior motive to defame and demoralise the BJP in the ensuing by-elections of Munugode Assembly Constituency. The complaint is lodged by respondent No.8 is staged and is firmly believed by the BJP that the complaint has been lodged at the behest of the Hon’ble the Chief Minister Mr. K. Chandra Shekhar Rao, who is also President of the TRS Party, other State Ministers and senior leaders of the TRS Party.
The facts and motive behind lodging the complaint can only be unearthed by conducting an enquiry either by the CBI or by the Special Investigation Team (SIT) or by a sitting Judge of the High Court.
The BJP fears that investigation would not be conducted in a fair and unbiased manner by the respondents, who are acting on the instructions of the State Government, and therefore, the investigation may be transferred to a neutral agency which is not under the control of the State Government.”
Be it noted, the Bench then very plainly states in para 34 holding quite commendably that, “In a system governed by law, every person or authority is subservient to Constitutional principles. The safeguards provided to the accused persons under Articles 20 and 21 of the Constitution of India have been reinforced from time to time by various authoritative pronouncements, some of which are referred above.
Protection given to the accused from very inception when he is arrested by the police officer and mandate under Article 20 of the Constitution of India read with Section 167 Cr.P.C. to produce the accused before the Magistrate within 24 hours of his arrest is a pointer to emphasise that from very inception of the criminal proceedings, the accused has Constitutional and statutory safeguards.”
Most significantly, the Bench minces no words to hold in para 42 that, “In these circumstances, this Court is of the view that serious prejudice is caused to the accused, who are branded publicly as conspirators, thereby, depriving their rights to effectively defend the criminal proceedings and availing their legal remedies under law.
These events run contrary to the fundamental concept of criminal law jurisprudence that every accused is deemed to be innocent until proven guilty. As noted above, the learned counsel for the respondents have not pointed out any provisions of the Cr.P.C. nor offered any plausible explanation or theory as to how the third video CDs/pen drives which have been seized under mediators’ report panchanama on 27.10.2022 in F.I.R. No.455 of 2022 have been handed over to the Hon’ble Chief Minister. Who has handed over the same, when and how, remains a mystery.
In spite of that, to say that no prejudice is caused to the accused is unreasonable and unacceptable. If action of the police is not in accordance with the procedure established by law, even at the initial stages, this Court, exercising jurisdiction under Article 226 of the Constitution of India, should not shirk its responsibility to set rights things.
The contention of the learned counsel for the State – Police that the petitioners have remedies under law and they may challenge the proceedings at the appropriate time and the investigation at this nascent stage should not be interfered cannot be sustained.
The rights of the accused stand as a high pedestal in the criminal law jurisprudence as held by the Hon’ble Supreme Court in Ankush Maruti Shinde’s case (Supra 24).
Having found serious lapses and leakage of investigation material/CDs, it is difficult to accept the contention of the learned counsel for the respondents – State that this Court should lay off its hands merely because the investigation is at preliminary stage. Rights of the accused to have fair and unbiased investigation are defeated in this case which is in violation of Articles 14 and 21 of the Constitution of India.”
Most forthrightly, the Bench then mandates in para 43 that, “In the opinion of this Court, constitution of SIT under G.O. Ms. No.63 which act under the Government will not alter the situation, more particularly, when an authority none other than the Hon’ble Chief Minister himself has openly circulated the videos and branded the accused and members of the organised crime as conspirators,”.
“The entire episode and turn out of events is something unprecedented and incomprehensible and unhesitatingly, this Court holds that the accused have made out a case for transfer of investigation. So far as other points raised by the learned counsel regarding violation of G.O. Ms. No.268 etc., and that investigation by regular police is not permissible under the PC Act are not considered as the pleadings to that effect in the writ affidavits are very vague; in any event, they are not necessary to be dealt with in the light of the above observations.”
As a corollary, the Bench then holds in para 44 that, “44.1 For the aforesaid reasons, W.P. Nos.40733, 43144 and 43339 of 2022 are allowed. G.O.Ms. No.63 Home (Legal) Department dated 09.11.2022 appointing SIT is quashed.
The investigation in FIR.No.455 of 2022 shall be forthwith transferred to the Central Bureau of Investigation, who shall proceed with de novo investigation taking into consideration the report lodged by Mr. Pilot Rohit Reddy in FIR.No.455 of 2022, observation panchanama dated 26.10.2022 and mediator’s panchanama dated 27.10.2022. The remaining investigation done by Assistant Commissioner of Police, Rajendranagar Division; the Station House Officer, Moinabad Police Station, and the SIT are also quashed.
44.2. As discussed above, W.P. No.39767 of 2022 is not maintainable and is accordingly dismissed.
44.3. In view of the orders in W.P. No.43144 of 2022, no orders are required to be passed in W.P. No.42228 of 2022, and therefore, the same is closed.”
Finally, the Bench concludes by directing in para 45 that, “At this point of time, a request is made by the learned Advocate General for the State to suspend this order till its certified copy is furnished. Therefore, this order is suspended, as prayed for. As a sequel thereto, miscellaneous applications, if any, pending in these writ petitions stand closed.”
All told, we thus see that the Telangana High Court very rightly on ground of protecting the rights of the accused to have fair and unbiased investigation decided very rightly to transfer the case to the CBI from SIT. The Court minced just no words to hold that the constitutional and statutory right of the accused seem to have been forgotten.
Most damningly, the Telangana High Court also made it clear that the Chief Minister by himself branding the accused as conspirators and circulating videos to the important Constitutional functionaries even before charge sheet is filed and at the initial stages of investigations has compromised the right of the accused to be investigated in an unbiased and fair manner thus unabashedly putting the accused in the most disadvantageous position! No denying it!
Sanjeev Sirohi, Advocate