L. NARASIMHA REDDY, J.

( 1 ) THE 3rd respondent submitted a complaint on 21-12-2002 to the Chapadu PS, kadapa district, alleging that on the previous day, his uncle by name M. Laxmi Reddy went to his filed for watering the crop at about 10-00 PM and that the writ petitioner and his two sons along with 4 others named in the complaint went to the same field and removed the bund. It was alleged that when laxmi Reddy objected to the same the writ petitioner and other accused attacked him resulting in bleeding injuries. Laxmi Reddy died on 22-12-2002. Cr. No. 75 of 2002 was registered on the basis of the complaint. The petitioner was shown as A-l and his sons as a-2 and A-4.

( 2 ) THE petitioner submitted representation on 24-12-2002 to the Superintendent of police, cuddapah, the 1st respondent herein. It was his case that he was a chronic TB patient and he was advised not to be out during night times. According to him, he did not go out even on the date of incident and he was very much in the house at the time of the incident. He pleaded alibi. Acting on the representation, the 1st respondent issued memo dated 6-1-2003 to the effect that plea of alibi is proved and instructed the 2nd respondent, the Circle Inspector of Police to take necessary action to delete the name of the petitioner.

( 3 ) THE 1st respondent issued another memo dated 28-2-2003 to the effect that a further enquiry into the Alibi Petition submitted by the petitioner i. e. , A-2 and his son A-4 in Cr. No. 75 of 2003 under various sections revealed that their contention is not true. Consequently, he directed the Sub divisional Police Officer, Proddatur to arrest a-l and A-4, under Section 302 IPC. The petitioner challenge the same. According to him, once the 1st respondent has taken a view that the plea of alibi by the petitioner was found proved, it was not open to him to take a different view. It is also his case that the impugned order discloses non- application of mind inasmuch as A-4 had already surrendered before this Court and was released on bail in Cr. M. P. No. 43 of 2003 and the question of arrest of A-4 does not arise.

( 4 ) THE 1st respondent filed counter-affidavit. It is stated that on receipt of representation dated 24-12-2002, he called for a report from the 2nd respondent. A report is said to have been submitted by the 2nd respondent to the effect that no one had spoken against the petitioner during the enquiry. Memo dated 6-1-2003 is said to have been issued on the strength of the report. It is also stated that the 3rd respondent filed a representation dated 25-1-2003 in this regard. A further investigation is said to have been caused and based on the same, the impugned Memo is stated to be issued.

( 5 ) THE 3rd respondent filed a counter-affidavit. He denied the allegations of the petitioner. He has also stated that oncoming to know that the 1st respondent issued Memo dated 6-1-2003, he submitted a representation dated 25-1-2003 to him and has filed w. P. No. 4164/2003 in this court. He pleads that there is no illegality or infirmity with the impugned order.

( 6 ) SRI. D. Suderashan Reddy, learned counsel for the petitioner, submits that the petitioner was not involved in the offence at all and he was implicated wholly on account of certain political rivalries. According to him, on a consideration of the application submitted by the petitioner, the 1st respondent verified and examined the matter and issued Memo dated 6-1-2003, directing the 2nd respondent to delete the name of the petitioner from the list of the accused. He submits that the 1st respondent issued this memo in exercise of power under Section 35 of Cr. P. C. , and it was impermissible for the 1st respondent to issue the impugned order.

( 7 ) LEARNED Government Pleader for home, on the other hand submits that the investigation into Cr. No. 75 of 2002 continued with the 2nd respondent and the 1st respondent never undertook the investigation by himself and as such the memo dated 6-1-2

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