Shamima
Kauser Vs. Union of India & Ors. [2010] INSC 342 (19 April 2010)
Judgment
REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL
NO. 818 OF 2010 (Arising out of Special Leave Petition(Crl.) No.7305/2009)
SHAMIMA KAUSER ...APPELLANT VERSUS WITH
CRIMINAL APPEAL NO_819_OF 2010 (Arising out of Crl.M.P.No.19538/2009 in
SLP(Crl.)No.3431/2010) M.R. GOPINATH PILLAI ...APPELLANT VERSUS
B.
SUDERSHAN REDDY, J.
Crl.M.P.No.19538/2009
for permission to file Special Leave Petition is allowed.
2. Leave
granted in both the appeals.
3. These
appeals are being disposed of by a common order since the same impugned order
dated 09.09.2009 made in MCRLA No. 10625/2009 in SCRLA No.822/2004 of the High
Court of Gujarat is under challenge in both the appeals. The High Court by the
2 impugned order granted stay of the report submitted by the learned
Metropolitan Magistrate dated 07.09.2009 in Crime No.8/2004 registered with DCB
Police Station, Ahmadabad. The impugned order is challenged by the appellants
on various grounds. In order to consider the same it may be just and necessary
to notice few relevant facts:
4. The
appellant in Criminal Appeal @ S.L.P.(Crl.)No.7305/2009 is the mother of the
deceased Israt Jehan who is alleged to have been killed by the Gujarat Police
in an alleged encounter dated 15.06.2004. The appellant in Criminal Appeal @
Crl. M. P. No. 19538/2009 is the father of the deceased Javed Gulam Mohammed
Sheikh @ Pranesh Kumar Pillai who is also alleged to have been killed by the
Gujarat Police in a fake encounter. The appellants have been moving from pillar
to post seeking justice and a proper inquiry into the matter. They have been
consistently asserting before all the authorities that their children were the
victims of a fake encounter staged in the year 2004 by the officers of the
Gujarat Police. The appellant Shamima Kauser filed a Writ Petition under
Article 226 of the Constitution of India, being Special Criminal Application
No.822/2004, before the High Court of Ahmedabad, seeking an investigation into
the death of her daughter, by the Central Bureau of Investigation, for the
reason that she firmly believed that her daughter had been wrongfully done to
death by the Gujarat Police in a fake encounter. The appellant in the other 3
appeal filed Writ Petition in this court seeking appropriate directions to
order investigation by the Central Bureau of Investigation into the "fake
encounter killing" of his son Javed Gulam Mohammed Sheikh @ Pranesh Kumar
Pillai. The said Writ Petition was disposed of by this court granting liberty
to the petitioner to approach the High Court of Gujarat seeking appropriate
remedy since a Writ Petition arising out of a similar incident was already
pending before the High Court.
5. On
07.08.2009 a leaned Single Judge of the High Court passed an order adjourning
the Special Criminal Application No. 822/2004 filed by Shamima Kauser to
explore the possibility of handing over the investigation to higher officer/s
from the cadre of Additional Director General of Police. The material portion
of the order reads as under:
"With
a view to explore the possibility of handing over the investigation to higher
officer/s. i.e. officer/s above the tank of Deputy Commissioner of Police, more
particularly, from the cadre of Additional D.G., matter is adjourned to
12.08.2009. To be taken up at 1630 hours."
6. On
13.08.2009, the learned Single Judge having considered the list of police
officers produced by the State of Gujarat passed a detailed order constituting
a Team of Investigation "for the purpose of carrying out the
investigation." A team of three senior most officers was constituted for
the aforesaid purpose. The High Court also granted permission to Shamima Kauser
to make suggestions to the 4 Investigating Team with regard to areas of
investigation and to inspect the record qua the FSL report and the ballistic
report.
The High
Court further directed the Investigating Team to consider all the aspects from
every angle relevant for the purpose of finding out whether the incident was a
genuine encounter or a fake one. The report was directed to be placed before
the court on the next date of hearing. The appellant promptly submitted an
application before the Investigating Team for inspection of documents and a
further application suggesting some areas of investigation.
7. On
07.09.2009, the Metropolitan Magistrate, Court No.1, Ahmedabad, having made an
inquiry under Section 176 of the Criminal Procedure Code pursuant to the orders
dated 12.08.2009 of the Chief Metropolitan Magistrate submitted an Inquiry
Report in respect of death of (1) Israt Jehan, (2) Jishan Johar, (3)Amjad Ali
Akbar Ali Rana@ Salim @ Raj Kumar and (4) Javed Ghulam Sheikh. The learned
Magistrate having made a detailed analysis of the material available on record
found that they were killed by "the ------ police officers and police
personnel with their service revolver and unlicenced and illegally held AK-56
rifle and with other weapons fired bullets on body of deceased and thereby
murdered ---- in a systemic manner, cold-bloodedly, mercilessly and
cruelly."
8. On
09.09.2009, the State of Gujarat and as well as two police officers whose names
were mentioned in the report filed Miscellaneous Applications in Special Criminal
Application No.822/2004 with a prayer to set aside the report dated 07.09.2009
of the learned Magistrate whereunder the alleged encounters were found to be
fake. The matter was orally mentioned for listing and they were taken up on the
same day at about 4.30 p.m. by the learned Single Judge and disposed of by the
impugned order. However, the Criminal Miscellaneous Applications filed by the
individual police officers were withdrawn and only Miscellaneous Criminal
Application No. 10625/2009 filed by the State of Gujarat was heard and disposed
of.
9. The
learned counsel for the appellant - Ms. Kaimini Jaiswal, and Mr. Huzefa Ahmadi
appearing on behalf of the appellant in the other appeal expressed their
serious objection to the manner in which the learned Single Judge took up the
application filed by the State of Gujarat and granted stay of the report with a
further direction to the Registrar General to make a detailed inquiry into the
matter which led to holding a parallel inquiry and filing of the report by the
learned Magistrate. The learned Judge was of the opinion that the inquiry made
by the learned Magistrate was beyond "the provision of law." It was
strenuously contended the very Miscellaneous 6 Application filed by the State
of Gujarat in the Writ Petition filed by one of the appellants herein was not
maintainable.
10.
Notwithstanding various observations made by the Learned Single Judge in the
impugned order the fact remains the order passed by the learned Single Jude is
ad-interim in its nature granting stay of the operation of the report as at
present. The learned Single Judge not yet finally disposed of the Criminal
Miscellaneous Application filed by the State of Gujarat. The effect of the
order passed by the learned Single Judge is that the operation of the report is
kept in abeyance and therefore no further action based on the said report could
be initiated in whatsoever manner. In such view of the matter we are not
inclined to interfere with such ad-interim order in exercise of our jurisdiction
under Article 136 of the Constitution of India. Interest of justice would be
met if the main Writ Petition itself is heard and disposed of alongwith the
Criminal Miscellaneous Application filed by the State of Gujarat. In the
meanwhile, the Investigating Team already constituted by the High Court shall
not deal with the report of the learned Magistrate in any manner whatsoever.
However, the observations made in the impugned order with regard to the report
of the learned Magistrate are set aside which are totally unnecessary. The
observations so made if allowed to remain may result in far reaching
consequences. We fail to appreciate as to why and what made the learned Judge
to make such observations 7 even while the very application filed by the State is
kept pending for its adjudication. The directions issued to the Registrar
General to make a detailed inquiry into the matter which led to holding of
inquiry by the Magistrate under Section 176 of the Code of Criminal Procedure
is also set aside.
11. We
must express our reservations the manner in which the proceedings went on
before the High Court resulting in the impugned order. In the circumstances we
consider it appropriate to request the learned Chief Justice of the High Court
to place Special Miscellaneous Application No.822/2004 along with Criminal
Miscellaneous Applications including Criminal Miscellaneous Application No.
10625/2009 filed by the State of Gujarat for their disposal in accordance with
law as expeditiously as possible preferably within six months from today. It is
needless to observe that the observations made in the impugned order shall have
no bearing whatsoever upon the merits of the case. The Division Bench is
required to adjudicate the Special Criminal Application on its own merits
uninfluenced by the previous order passed by the learned Single Judge in the
matter. It is also needless to observe that the Division Bench shall consider
the very maintainability of the Criminal Miscellaneous Application filed by the
State of Gujarat.
12.
Impleadment Application in Criminal Appeal @ S.L.P.(Crl.)No.7305/2009 : In view
of the final orders passed in the Criminal Appeals no further order is required
to be passed in this application. The application shall accordingly stand
dismissed with liberty granted to the applicant to avail such remedies as may
be available in law.
13. The
appeals are accordingly disposed of.
................................J. [B.SUDERSHAN REDDY]
................................J.
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