Jakia Nasim Ahesan
& ANR. Vs. State of Gujarat & Ors.
O R D E R
appeal by special leave, arises out of the judgment dated 2nd November, 2007, delivered
by the High Court of Gujarat at Ahmedabad in Special Criminal Application No. 421
of 2007, dismissing the writ petition preferred by one of the hapless victims
of the abominable and woeful events which took place in the State of Gujarat between
February, 2002 and May, 2002 after the abhorrent Godhra incident on 27th February,
By the said petition under
Article 226 of the Constitution of India read with Section 482 of the Code of Criminal
Procedure, 1973 (for short "the Code"), the appellant had sought for
a direction to the Director General of Police, State of Gujarat, to register
her private complaint dated 8th June, 2006 as a First Information Report and direct
investigation therein by an independent agency. By the impugned judgment, the
High Court has come to the conclusion that since a remedy under Section 190 read
with Section 200 of the Code was available to the appellant, the writ petition
was not tenable.
The writ petition was
accordingly dismissed by the High Court with the observation that if the
appellant had got certain additional material against some persons accused in her
complaint, it was open to her to approach the investigating agency, requesting further
investigation, or, alternatively she could herself approach the Court concerned
for further investigation in terms of Section 173(8) of the Code.
appellant lost her husband, a former Member of Parliament, in the calamitous events
which took place on 28th February, 2002, in the surroundings of Gulberg Society,
Ahmedabad, where the appellant resided along with her family. An FIR relating to
the incident was registered by the Police with Meghaninagar Police Station, Ahmedabad.
After investigation, on the filing of the charge-sheet, the case was committed
to the Court of Sessions, Ahmedabad.
It was the case of the
appellant that subsequently she received certain material which showed that the
incidents which took place during the period between 27th February, 2002 and
10th May, 2002, were aided, abetted and conspired by some responsible persons in
power, in connivance with the State Administration, including the Police.
The appellant thus sought
registration of another FIR against certain persons named in the complaint, dated
8th June, 2006, for offences punishable under Section 302 read with Section 120B
as also under Section 193 read with Sections 114, 186 & 153A, 186, 187 of the
Indian Penal Code, 1860. However, as the police declined to take cognizance of her
complaint, the appellant filed the aforementioned petition before the High
Court. Having failed to convince the High Court that it was a fit case for
investigation by an independent agency, the appellant-complainant, supported by
an NGO, is before us in this appeal.
3rd March, 2008 while issuing notice to the Union of India and State of
Gujarat, an Amicus Curiae was appointed to assist the Court. Vide order dated
27th April, 2009, the Special Investigation Team (for short "the SIT"),
which had been constituted vide order dated 26th March, 2008 to carry out
further investigations in nine cases, subject matter of Writ Petition No. 109
of 2003, was directed `to look into', the complaint submitted by the appellant on
8th June, 2006 to the Director General of Police, Gujarat. Pursuant to the said
direction Shri A.K. Malhotra, former D.I.G. (C.B.I.) and one of the members of the
SIT, examined a number of witnesses and looked into a large number of documents
made available to him. A report, dated 12th May, 2010, was submitted to this Court
by the Chairman, SIT, concurring with the findings of Shri A.K. Malhotra.
his report dated 12th May, 2010, Shri A.K. Malhotra, inter alia recommended
further investigation under Section 173(8) of the Code against certain Police officials
and a Minister in the State Cabinet. Consequently, further investigation was
conducted and a report dated 17th November, 2010, was submitted by the SIT. On
23rd November, 2010, Shri Raju Ramachandran, Senior Advocate and Shri Gaurav Agarwal,
Advocate, replaced the previous Amicus Curiae, who had expressed his
unwillingness to continue.
20th January, 2011, a preliminary note was submitted by Shri Raju Ramachandran,
the learned Amicus Curiae; whereon, vide order dated 15th March, 2011, the SIT was
directed to submit its report, and if necessary carry out further investigation
in light of the observations made in the said note. The SIT conducted further
investigation under Section 173(8) of the Code in Meghaninagar Police Station Crime
Report No.67 of 2002--Gulberg Society case, and submitted a report on 24th April,
2011. After examining the said report, on 5th May, 2011, the following order
was passed : "Pursuant to our order dated 15th March, 2011, the Chairman,
Team (SIT) has filed report on the further investigations carried out by his team
along with his remarks thereon. Statements of witnesses as also the documents have
been placed on record in separate volumes. Let a copy of all these documents along
with the report of the Chairman be supplied to Mr. Raju Ramachandran, the
learned Amicus Curiae. The learned Amicus Curiae shall examine the report; analyze
and have his own independent assessment of the statements of the witnesses recorded
by the SIT and submit his comments thereon. It will be open to the learned Amicus
Curiae to interact with any of the witnesses, who have been examined by the SIT,
including the police officers, as he may deem fit. If the learned Amicus Curiae
forms an opinion that on the basis of the material on record, any offence is made
out against any person, he shall mention the same in his report."
learned Amicus Curiae has now submitted his final report dated 25th July, 2011.
In light of the above conspectus and the report of the learned Amicus Curiae, the
question for determination is the future course of action in the matter.
are of the opinion that bearing in mind the scheme of Chapter XII of the Code,
once the investigation has been conducted and completed by the SIT, in terms of
the orders passed by this Court from time to time, there is no course available
in law, save and except to forward the final report under Section 173 (2) of the
Code to the Court empowered to take cognizance of the offence alleged. As
observed by a three-Judge Bench of this Court in M.C. Mehta (Taj Corridor Scam)
Vs. Union of India & Ors.1, in cases monitored by this Court, it is concerned
with ensuring proper and honest performance of its duty by the investigating agency
and not with the merits of the accusations in investigation, which are to be
determined at the trial on the filing of the charge-sheet in the competent
Court, according to the ordinary procedure prescribed by law.
we direct the Chairman, SIT to forward a final report, along with the entire
material collected by the SIT, to the Court which had taken cognizance of Crime
Report No.67 of 2002, as required under Section 173(2) of the Code. Before
submission of its report, it will be open to the SIT to obtain from the Amicus
Curiae copies of his reports submitted to this Court. The said Court will deal with
the matter in accordance with law relating to the trial of the accused, named
in the report/charge-sheet, including matters falling within the 1 (2007) 1 SCC
110 ambit and scope of Section 173(8) of the Code.
However, at this juncture,
we deem it necessary to emphasise that if for any stated reason the SIT opines in
its report, to be submitted in terms of this order, that there is no sufficient
evidence or reasonable grounds for proceeding against any person named in the
complaint, dated 8th June 2006, before taking a final decision on such `closure'
report, the Court shall issue notice to the complainant and make available to
her copies of the statements of the witnesses, other related documents and the
investigation report strictly in accordance with law as enunciated by this Court
in Bhagwant Singh Vs. Commissioner of Police & Anr.
2. For the sake of
ready reference, we may note that in the said decision, it has been held that
in a case where the Magistrate to whom a report is forwarded under Section
173(2)(i) of the Code, decides not to take cognizance of the offence and to
drop the proceedings or takes a view that there is no sufficient ground for
proceeding against some of the persons mentioned in the FIR, the Magistrate
must give notice to the informant and provide him an opportunity to be heard at
the time of consideration of the report.
so directed, the next question is whether this Court should continue to monitor
the case any further. The legal position on the point is made clear by this
Court in Union of India & Ors. Vs. Sushil 2 (1985) 2 SCC 537 7 Kumar Modi &
Ors.3, wherein, relying on the decision in Vineet Narain & Ors. Vs. Union
of India & Anr.4, a Bench of three learned Judges had observed thus : "...that
once a charge-sheet is filed in the competent court after completion of the investigation,
the process of monitoring by this Court for the purpose of making the CBI and
other investigative agencies concerned perform their function of investigating into
the offences concerned comes to an end; and thereafter it is only the court in which
the charge-sheet is filed which is to deal with all matters relating to the
trial of the accused, including matters falling within the scope of Section 173(8)
of the Code of Criminal Procedure. We make this observation only to reiterate
this clear position in law so that no doubts in any quarter may survive."
M.C. Mehta Vs. Union of India & Ors.5, a question arose as to whether after
the submission of the final report by the CBI in the Court of Special Judge,
pursuant to this Court's directions, this Court should examine the legality and
validity of CBI's action in seeking a sanction under Section 197 of the Code
for the prosecution of some of the persons named in the final report. Dismissing
the application moved by the learned Amicus Curiae seeking directions in this
behalf, a three-Judge Bench, of which one of us (D.K. Jain, J.) was a member, observed
thus:3 (1998) 8 SCC 6614 (1996) 2 SCC 1995 (2008) 1 SCC 407
of the Court to issue a writ of continuous mandamus is only to see that proper investigation
is carried out. Once the Court satisfies itself that a proper investigation has
been carried out, it would not venture to take over the functions of the Magistrate
or pass any order which would interfere with his judicial functions. Constitutional
scheme of this country envisages dispute resolution mechanism by an independent
and impartial tribunal. No authority, save and except a superior court in the hierarchy
of judiciary, can issue any direction which otherwise takes away the discretionary
jurisdiction of any court of law.
Once a final report
has been filed in terms of sub-section (1) of Section 173 of the Code of Criminal
Procedure, it is the Magistrate and Magistrate alone who can take appropriate decision
in the matter one way or the other. If he errs while passing a judicial order, the
same may be a subject-matter of appeal or judicial review. There may be a possibility
of the prosecuting agencies not approaching the higher forum against an order
passed by the learned Magistrate, but the same by itself would not confer a jurisdiction
on this Court to step in."
similar views have been echoed by this Court in Narmada Bai Vs. State of Gujarat
& Ors.6. In that case, dealing with the question of further monitoring in a
case upon submission of a report by the C.B.I. to this Court, on the conclusion
of the investigation, referring to the earlier decisions in Vineet Narain (supra),
Sushil Kumar Modi (supra) and M.C. Mehta (Taj Corridor Scam) (supra), 6 (2011)
5 SCC 79 9 speaking for the Bench, one of us, (P. Sathasivam, J.) has observed
as under : "70. The above decisions make it clear that though this Court
is competent to entrust the investigation to any independent agency, once the
investigating agency complete their function of investigating into the offences,
it is the court in which the charge-sheet is filed which is to deal with all matters
relating to the trial of the accused including matters falling within the scope
of Section 173(8) of the Code. Thus, generally, this Court may not require further
monitoring of the case/investigation. However, we make it clear that if any of the
parties including CBI require any further direction, they are free to approach this
Court by way of an application."
concurring with the dictum of this Court in the aforenoted decisions, we are of
the opinion that in the instant case we have reached a stage where the process
of monitoring of the case must come to an end. It would neither be desirable
nor advisable to retain further seisin over this case. We dispose of this
parting, we direct the State of Gujarat to reimburse to Shri Raju Ramachandran,
all the expenses borne by him for travel from Delhi to Ahmedabad and back. We also
place on record our deep appreciation for the able assistance rendered to us by
Shri Raju Ramachandran and Shri Gaurav Agarwal, the learned Amicus Curiae.