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KARNATAKA HIGH COURT
H.P. Sandesh, J.
Tungamma and Anr. —Petitioners
versus
Union of India and Ors. —Respondents
W.P.Nos.58183-58184 of 2017 (GM-RES)
Decided on 1.3.2019
Counsel for the Parties:
For the Petitioners:Sri. M.B. Naragunda Sr. Counsel for Sri. Deepak S. Shetty, Advocate
For the Respondent Nos.4-6: Sri. A.S. Ponnanna, Addl. A.G. and Sri. Praveen K. Uppar, HCGP
For the Respondent No.18: Sri. Jagadish Patil, Sri. K.S. Patil, Advsocates
For the Respondent Nos.1-3: Sri. M.B. Kanavi, SCGP
IMPORTANT POINTS
(1) Investigation must be fair, transparent and judicious and it is immediate requirement of rule of law.
(2) Alleged political rivalry cannot be a ground for referring the matter to CBI in coming to conclusion that Police did not conduct investigation properly.
Headnote:(A) Criminal Procedure Code, 1973 – Sections 173 and 482 – Murder case – Prayer for CBI investigation – Allegation of sham investigation by local Police in order to shield real culprit – Investigation must be fair, transparent and judicious and it is immediate requirement of rule of law – However, mere making of accusation that no fair investigation has been conducted is not a ground and also it cannot be referred for CBI investigation with suspicion – There must be a prima facie material that a shabby investigation is conducted and there must be an exceptional circumstances i.e. if fair investigation is not done by Police and if it inspires confidence then only the matter has to be referred to CBI for investigation. (Paras 61 and 62)
(B) Criminal Procedure Code, 1973 – Sections 319 and 482 – Murder case – Prayer for CBI investigation – Allegation of sham investigation by local Police in order to shield real culprit – Alleged political rivalry cannot be a ground for referring the matter to CBI in coming to conclusion that Police did not conduct investigation properly – Similarly, it is not the job of Investigating Officer to collect information with regard to source of sale consideration and the said ground also cannot be accepted for referring the matter to the CBI investigation and whether they were having source or not is not the issue involved in crime – Court also cannot take a decision only on hypothesis and there must be some prima facie material – When parties are affiliated to different political parties and accusation is made and mere making of an accusation is not a ground and in order to order for fresh investigation that too through CBI investigation, petitioners have to make out case for an exceptional case to order for CBI investigation – Where investigating agency does not array real culprit, if any material is placed, real culprit can be booked and prosecuted – Only in exceptional case where investigation does not inspires confidence of Court then only extraordinary power of this Court referring the matter to CBI can be invoked – It is not a fit case to issue writ of Mandamus as prayed by petitioners to refer the matter to CBI investigation – Writ Petitions dismissed.
(Paras 64, 65, 66, 67, 68, 69, 71,74 and 75)
Result: Writ Petitions dismissed.
ORDER
H.P. Sandesh, J.—I have heard the arguments of the petitioners’ counsel and respondents’ counsel.
2. These two petitions are filed by the mother and the brother of the deceased Yogeshgouda Goudar seeking writ jurisdiction under Articles 226 and 227 of the Constitution of India r/w Section 482 of Cr.P.C. seeking relief of issuing writ of mandamus directing the respondent–Central Bureau of Investigation to investigate the murder of Yogeshgouda Goudar and submit report and to take action as per the law and further writ of mandamus directing respondent Nos.4 and 5 to initiate action against all the erring Police Officials who shielded the respondent No.10-Vinay Kulkarni and other culprits in the conspiracy of murder of Yogeshgouda Goudar and issue any other order or direction which this Hon’ble Court deems fit under the facts and circumstances of the case.
3. In the nut-shell, the case of the petitioners that Yogeshgouda Goudar is the elected member of Zilla Panchayat, Dharwad from Hebballi Constituency and respondent No.10 is the sitting Member of Karnataka Legislative Assembly from Dharwad Rural Constituency and he is the Minister of Mines and Geology, Government of Karnataka and he is the In-charge Minister of Dharwad District. There was a political enmity between them and the same is exposed in a meeting dated 23/4/2016, regarding supply of drinking water in the District which went to an extent of addressing each other in unparliamentary words. The other contention that one alleged agreement of sale was executed between accused No.1 and Nagendra Todakar, who is a witness in the charge sheet and though the deceased neither interested nor having an intention to purchase the said land, the Investigating Officer willfully not enquired in these aspects and not recorded the statement of the complainant and also not investigated about the source of sale consideration and the said alleged document was totally created to narrate a story to the said murder and as a tool to escape from the clutches of law and alleged document came into existence on 24/5/2016.
4. The case of the petitioners also that one letter posted in Dharwad R.M.S. post Office to the deceased by the anonymous person on 6/6/2016 stating that his brother Uday Gouda was got murdered by Vinay Kulkarni and H.K. Patil and Vinay Kulkarni is waiting to get to kill and the said letter was reached the Heballi post office on 7/6/2016 and the same was received by Yogeshgouda’s family on 14/6/2016 and same was brought to notice of Yogeshgouda Goudar and he did not take any serious about the said letter.
5. The incident of murder of Yogeshgouda Goudar was taken place on 15/6/2016 at 7.37 a.m. to 7.38 a.m. that accused Nos.1 to 6 are gathered before the Uday Gym, Saptapur, Dharwad and killed him mercilessly and there was CCTV footage of next building of the place where the offence committed was recorded. The investigation only relied upon three minute footage. The murderer may be there in the spot prior to the said incident. But, taking into consideration of the CCTV footage of minutes is wholly suspicious. Even there is ATM in the said building, where incident took place and investigation officer relied upon the CCTV footage of next building, which creates doubt on the investigation. In the CCTV footage relied upon by the police authority also reveals one Hundai Accent Car (Black) was involved in the said murder. Accused person gave signal to the said car which comes from the KCD towards Saptapur Circle and surprisingly, the said car again returned back towards KCD circle within 70-75 seconds. But, police official did not enquired about the said car, even though it is important clue in this case. Surprisingly, the driver and conductor of the bus belongs to BTS was examined by the police, but, they have failed to examine the car, which is part of the said murder.
6. The FIR was registered in Crime No.135/2016 on 15/6/2016 at 9.30 a.m. and within a span of one hour, the Home Mi
