Narmada Bai Vs State
of Gujarat & Ors.
J U D G M E N T
P. Sathasivam, J.
1.
Narmada
Bai-the petitioner herein, mother of Tulsiram Prajapati-the deceased, who, according
to her, was killed on 27/28.12.2006 in a fake encounter by respondent Nos. 6 to
19, who are the officials of Gujarat and Rajasthan Police, somewhere on the road
going from Ambalimal to Sarhad Chhapri, has filed the above writ petition under
Article 32 of the Constitution of India praying for issuance of a writ of mandamus
or in the nature thereof or any other writ, order or direction directing the Central
Bureau of Investigation (in 1short `the CBI') to register a First Information
Report (in short `FIR') and investigate into the fake encounter killing of her
son and submit its report to this Court. In the same petition, she also prayed for
compensation for the killing of her son in a fake encounter thereby causing gross
violation of Articles 21 and 22 of the Constitution.
2.
Case
of the Writ Petitioner:-
a. According to the petitioner,
she is 55 years old illiterate widow. Her younger son had been done away by
respondent Nos. 6-19 in a fake encounter with the ulterior intent to shield
themselves in the investigation emanating under the directions of this Court in
the case of Rubabbuddin Sheikh vs. State of Gujarat & Ors., (2010) 2 SCC 200.
She came to know through local persons about the fake encounter and killing of
Sohrabuddin and his wife Kausarbi and the directions of this Court in that case.
On being informed about the said incident, she approached this Court for directions
to register an FIR into the fake encounter killing of her son Tulsiram
Prajapati and investigation by an independent agency, like the CBI and for
submission of its report to this Court for further action. According to the
petitioner, the fake encounter killing of her son is directly connected to the case
of Sohrabuddin and his wife Kausarbi as he would have been a material witness
to the said killings.
b. It is further stated
that her son Tulsiram Prajapati while lodged in Central Jail, Udaipur, had addressed
a letter dated 11.05.2006 to the Collector, Udaipur informing him about the
life threatening attack carried out on him in Udaipur Central Jail on
25.03.2006, when he was beaten up with iron rods and lathis by co-prisoners. He
expressly wrote that there was conspiracy to kill him along with two others and
also named the persons who were behind the conspiracy and requested that incident
be investigated and his life be protected. Thereafter, on 18.05.2006, the deceased
also addressed a letter to the Chairman, National Human Rights Commission (in
short `NHRC') alleging that there was conspiracy among the police officials of
Gujarat, Rajasthan, Maharashtra, etc. to do away with him in a fake encounter
by cooking up a false story of running away from custody. In the said letter,
the deceased specifically requested that his security be ensured whenever he is
taken on remand. In the same letter, he also mentioned that the Gujarat Crime Branch
and Anti Terrorist Squad (in short `ATS') were very notorious for staging fake encounters.
The NHRC acknowledged the receipt of the said letter and forwarded a copy to the
Superintendent of Police, Udaipur, Rajasthan vide letter dated 22.06.2006.
c. Thus from March 2006,
the deceased had been expressing serious apprehensions and threat to his life
at the hands of the police. The deceased had reasons to believe that Mr. Dinesh
Kumar, Superintendent of Police, respondent No.8, had taken a huge sum of money
from the Marble traders and dealers in Rajasthan with the assurance that he would
do away with him in a fake encounter. Before he being interrogated by Ms. Geeta
Johri, an officer investigating the matter of fake encounter killing of Sohrabuddin
and his wife Kausarbi, in the night intervening 27/28 December, 2006, Tulsiram Prajapati
was done away in a fake encounter by respondent Nos. 6-19.
d. Quoting from certain newspaper
reports, more particularly, the Times of India dated 29.12.2006, the 4petitioner
has alleged that her son was being escorted by Udaipur (Rajasthan) Police from Ahmedabad
to Udaipur in a train. When the train was passing through Himatnagar-Shymlaji
Stretch, the deceased sought permission to go to the toilet. The policemen
escorted him to the toilet where two of his accomplices disguised as passengers
attacked the policemen by throwing chilli powder in their eyes. When the
policemen called for the other members of the escort party, the goons fired at them
and jumped off the moving train. In response, the police opened fire but the accused
fled in the cover of darkness after shooting back at the police.
e. Pursuant to such alleged
fleeing of Tulsiram Prajapati from police custody, Mr. Dinesh Kumar, SP, Udaipur
called Mr. Vipul Agarwal, SP Banaskantha and informed him of the same. Thereafter,
local police of Banaskantha headed by Mr. Vipul Agarwal under direct supervision
of Mr. D.G. Vanzara, Range DIG, swung into action and registered an FIR being
Crime Register No. 115 of 2006 at Ambaji Police Station, Banaskantha, on 28.12.2006
at 8.00 hrs. claiming that Tulsiram Prajapati had been killed in an encounter.
f. It is further alleged
that when patrolling was carried out, three persons tried to stop one Matador van
but the vehicle did not stop there. It has also been alleged that a police jeep
of Mr. A.A. Pandya, SI was coming behind the Matador and the said three persons
tried to stop it. On stopping the police jeep, Mr. Narayansinh Fatehsinh Chauhan,
ASI recognized one of the three persons in the light of jeep as the absconding
Tulsiram Prajapati. On seeing that, the deceased took out a weapon kept in the
nylon belt on his waist and fired which hit the left side of the mudguard of
the police jeep and ran away in the darkness. While running, they fired at the
police party in which one bullet hit at the left shoulder of Shri A.A. Pandya,
SI. It is alleged that in self-defence Shri A.A. Pandya fired two rounds from his
service revolver and Mr. Narayansinh Fatehsinh Chauhan and Mr. Yuddharamsinh Nathusinh
Rajput, Rajasthan police constables also fired from their weapons. On account
of the firing by the police party, bullets hit Tulsiram Prajapati and he fell
down on road side and the other two persons ran away and could not be traced. Thereafter,
he was taken to Ambaji Cottage Hospital where he was declared dead by the
doctor on duty.
g. It is the further case
of the petitioner that the deceased being a key eye witness to the murder of
Sohrabuddin and his wife Kausarbi, the team of Mr. D.G. Vanzara and others
planned to do away with him to avoid his interrogation by Ms. Geeta Johri, Inspector
General of Police. The aforesaid facts create a strong suspicion on the conduct
of respondent Nos. 6 to 19 and the petitioner has every reason to believe that her
son- Tulsiram Prajapati has been killed by them in a fake encounter. She also alleged
that the respondents/accused officers enjoy powerful position in their
respective State Police and are trying to obstruct further inquiry into the fake
encounter killing of her son, who was a material witness in the case of fake
encounter of Sohrabuddin and his wife Kausarbi. Hence, the petitioner has preferred
this petition before this Court praying for direction to CBI to register an FIR
and investigate the case.
1.
2.
3.
Stand
of the State of Gujarat - respondent No.1
a. Shri I.M. Desai,
Deputy Inspector General of Police, CID (Crime), Gujarat State filed an affidavit
wherein it was stated that the present petition under Article 32 of the
Constitution is not maintainable as the case registered in respect of death of
the petitioner's son in police firing on 28.12.2006 was under investigation. The
Writ Petition (Crl.) No. 6 of 2007 being a Habeas Corpus was entertained by this
Court as an exceptional case and, therefore, the same cannot be cited as a precedent.
It was further stated in the said affidavit that Tulsiram Prajapati was a
dreaded inter-state criminal and was also known as Tulsiram Prajapati @ Prafull
@ Samir son of Ganga Ram Prajapati involved in 21 criminal cases and he was killed
on 28.12.2006 in police firing after escaping from police custody. In respect
of the same, an FIR was registered in Ahmedabad Railway Police Station of Gujarat
vide CR No. 294/06 under Sections 307, 224, 225, 34 of Indian Penal Code (in short
"IPC") and Section 25(1)(AB) of the Arms Act, 1959 and Section 135 of
Bombay Police Act, 1951.
b. According to the State,
after escaping from the Police Custody, Tulsiram Prajapati was again confronted
by Gujarat Police and Rajasthan Police and was killed in police firing for which
an FIR was registered in Ambaji Police Station vide CR No. 115 of 2006 dated 28.12.2006
under Sections 307, 427, 34 of IPC and Section 25(1)(C) of the Arms Act, 1959 and
Section 135 of the Bombay Police Act, 1951. Since the cases in respect of the above
two incidents had already been registered in the Police Stations, there is no
need to register a fresh case as claimed by the petitioner. It was further
stated that Tulsiram Prajapati was not a material witness in the case of Sohrabuddin.
He also denied that any such incident had taken place within the premises of Udaipur
Central Jail as claimed by the petitioner on 25.03.2006 but there was a quarrel
among the prisoners on 24.03.2006 in the Court lock-up for which a criminal case
was registered at Bhopalpura Police Station in C.R.No. 131 of 2006 under
Sections 341, 323, 506 and 34
c. As regards the
complaint made to the NHRC, investigation carried out so far revealed that no such
conspiracy amongst the police officers of Maharashtra, Gujarat, Madhya Pradesh
and Rajasthan has come on record. The deceased also never showed any
apprehension to the petitioner about danger to his life from marble dealers or police
officers of Udaipur. The petitioner's claim about Tulsiram Prajapati's apprehension
to his life is at the most hearsay and based on extraneous considerations.
d. The claim that the
deceased-Tulsiram Prajapati was highly inconvenient witness for respondent Nos.
6-19 is without substance as respondent No. 10 - Mr. V.L. Solanki, an inquiry
officer, has stated in respect of alleged killing of Sohrabuddin that during preliminary
enquiry there was no link between Tulsiram Prajapati and the death of
Sohrabuddin and his wife Kausarbi in an encounter. The same view has been
expressed by Ms. Geeta Johri, IGP under whose direct supervision the case relating
to Sohrabuddin was investigated. The `third person' allegedly present at the time
of abduction of 10Sohrabuddin and Kausarbi was Kalimuddin and not Tulsiram
Prajapati.
e. In the subsequent affidavit
dated 19.08.2010, Dashrathbhai R. Patel, Under Secretary, Government of
Gujarat, Home Department has stated that the State CID (Crime) has filed a
charge-sheet which is the subject-matter of present writ petition. It is the consistent
stand of the State that the encounter killing of Tulsiram Prajapati (subject-matter
of Writ Petition (Crl.) No. 115 of 2007) has nothing to do with the killing of Sohrabuddin
and Kausarbi (which was the subject-matter decided by this Court in Writ
Petition (Crl.) No. 6 of 2007).
4.
Stand
of Mr. Amit Shah - respondent No.2:
a. The present writ
petition is an abuse of the process of law by/at the behest of political party
controlling the CBI.
b. The investigation in
a criminal case normally takes place in accordance with the procedure prescribed
under the Code of Criminal Procedure (in short `the Cr.P.C.') and by the normal
investigating agency prescribed. The Constitutional Court can direct deviation from
such statutorily prescribed method of investigation and direct an outside agency
like the CBI to step in and investigate an offence only in extraordinary
circumstances and in rarest of rare cases. The petitioner has not led factual foundation
of facts to hold that the present case is one of the rarest of rare cases which
requires deviation from the statutorily prescribed mode of investigation.
c. On perusal of both the
investigations and charge-sheet which are filed in both the offences, it is
seen that there is no credible evidence to support the view that Tulsiram Prajapati
was that `third person' and the evidence which the CBI is relying on is clearly
fabricated being based on the unreliable statements of witnesses.
On the other hand all
available evidence points to the fact that the `third person' could only be
Kalimuddin @ Naimuddin who is under the protection of the Andhra Pradesh Police.
The CBI is seeking to take over Tulsiram Prajapati's encounter case only to fabricate
the evidence and to destroy the charge-sheet filed by the Gujrat Police in
Tulsiram Prajapati's case. The status report filed by the CBI in Sohrabuddin's
case that Tulsiram Prajapati was the `third person' which is a blatant lie. Though
there is no link 12between the two and yet the CBI is attempting to fabricate a
link that does not exist. Inasmuch as the CBI which has lost all its
credibility as an independent agency and is being used by political party in
power in the Central Government, in the absence of any extraordinary circumstances
having been shown by the petitioner in the petition no direction need be issued
for handing over the investigation to the CBI and prayed for dismissal of the
writ petition.
5.
Stand
of the CBI - respondent No.21:
a. The investigation conducted
in R.C. No. 4(S)/2010, Special Crime Branch, Mumbai, as per the directions of this
Court in its order dated 12.01.2010, vide Writ Petition (Crl.) No. 6 of 2007 revealed
that the alleged fake encounter of Tulsiram Prajapati on 28.12.2006 was done in
order to eliminate him as he was the key witness in the criminal conspiracy of the
abduction and killing of Sohrabuddin and Kausarbi by the powerful and the
influential accused persons. The investigation further revealed that the
deceased knew that his death was imminent at the hands of Gujarat Police in 13connivance
with the Rajasthan Police as he was the prime witness to the said case.
b. The investigation also
revealed that Tulsiram Prajapati was brought to Ahmedabad on 28.11.2006 and
12.12.2006 in connection with the case No. 1124 of 2004 in JM Court No. 13,
Ahmedabad, along with co-accused Md. Azam and around 50 police commandos were
accompanied for the escort party, whereas on 25.11.2006, Tulsiram Prajapati was
brought alone on police escort by Rajasthan Police from Udaipur Jail when less
than five police men accompanied him. After the orders of this Court for the
investigation by this agency, it emerged that police officials of ATS, Ahmedabad
were involved in the abduction and killing of Sohrabuddin and his wife
Kausarbi.
c. The murder of Tulsiram
Prajapati took place on 28.12.2006, case was registered on 28.12.2006 and Gujarat
CID commenced investigation on 22.03.2007. However, even after a lapse of 3
years, no action was taken against any of the accused. As directed by this
Court, only on the investigation of Tulsiram Prajapati's case, the "larger
conspiracy" would be established and the mandate and tasks assigned by
this Court 14to the CBI would be accomplished both in letter and spirit towards
the goal of a fair trial, upholding the rule of law. If Tulsiram Prajapati's
fake encounter case is not transferred to the CBI for investigation, it may lead
to issue-estoppel or res judicata against prosecution. Stand of the other
respondents
1.
2.
3.
4.
5.
6.
As
far as the officials of the Gujarat State Police are concerned, they reiterated
the stand taken by the State. Mr. Dinesh Kumar, S.P. Udaipur,
Rajasthan-respondent No.8 has filed a separate counter affidavit denying all the
allegations made by the petitioner and taking the same stand as that of the
State of Gujarat and ultimately prayed for dismissal of the writ petition.
7.
In
the light of the above pleadings, we heard Mr. Huzefa A. Ahmadi, learned counsel
for the writ petitioner, Mr. Ranjit Kumar, learned senior counsel for the State
of Gujarat (respondent No.1), Mr. Ram Jethmalani, learned senior counsel for Amit
Shah (respondent No.2), Mr. K.T.S. Tulsi, learned senior counsel for the CBI, Mr.
Deepak Prakash, learned counsel for respondent No.8, Mr. Jaideep Gupta, 15learned
senior counsel for respondent No.6, Gp. Capt. Karan Singh Bhati, learned counsel
for respondent Nos. 12, 13 and 14 and Mr. H.P. Rawal, learned ASG for the Union
of India.
8.
The
main grievance of the petitioner is that her deceased son - Tulsiram Prajapati being
a key witness to the murder of Sohrabuddin and his wife Kausarbi, the team of Mr.
D.G. Vanzara, DIG and other officers of the State Police planned to do away him
to avoid the interrogation by Ms. Geeta Johri, IGP. The petitioner had also
strong suspicion on the conduct of respondent Nos. 6-19 and has every reason to
believe that her son had been killed by them in a fake encounter. It is also
the apprehension of the petitioner that since the respondents/accused police
officers enjoy powerful position in their respective States and they are trying
to obstruct further inquiry in the matter, prayed for entrusting the investigation
to a specialized independent agency like the CBI.
9.
Mr.
Ranjit Kumar, learned senior counsel for the State of Gujarat and Mr. Ram Jethmalani,
learned senior counsel for Mr. Amit Shah, respondent No.2, who, at the relevant
time was the Home Minister of the State, vehemently objected the 16claim of the
petitioner and by placing several materials submitted that inasmuch as after proper
investigation the State Police has filed the charge-sheet, there is no need for
further investigation by the CBI at this stage. They further submitted that any
such direction at this stage would delay the entire prosecution. Key Issues:
10.
Keeping
the above submissions in mind, we have to first find out (a) whether after filing
of the charge-sheet by the State agency, the Court is precluded from appointing
any other independent specialized agency like the CBI to go into the same
issues if the earlier investigation was not done as per the established procedure;
and (b) subject to the answer relating to the issue raised in (a) whether the
petitioner has made out a case for entrusting the investigation to the
CBI.Analysis as to issue (a):
11.
The
first issue i.e. (a) as in the case on hand also arose in the case of
Rubabbuddin Sheikh (supra). The factual details therein will be discussed in
the later paragraphs. With regard 17to the similar objection as to further
investigation by the CBI, this Court considered the following cases:
i.
Vineet
Narain vs. Union of India, (1996) 2 SCC 199
ii.
Union
of India vs. Sushil Kumar Modi, (1998) 8 SCC 661
iii.
Rajiv
Ranjan Singh `Lalan' (VIII) vs. Union of India, (2006) 6 SCC 613
iv.
Hari
Singh vs. State of U.P., (2006) 5 SCC 733
v.
Aleque
Padamsee vs. Union of India, (2007) 6 SCC 171
vi.
M.C.
Mehta vs. Union of India, (2008) 1 SCC 407
vii.
R.S.
Sodhi vs. State of U.P., 1994 Supp(1) SCC 143
viii.
Ramesh
Kumari vs. State (NCT of Delhi), (2006) 2 SCC 677
ix.
Kashmeri
Devi vs. Delhi Administration, 1988 Supp SCC 482
x.
Gudalure
M.J. Cherian vs. Union of India, (1992) 1 SCC 397; and
xi.
Punjab
& Haryana High Court Bar Asson. Vs. State of Punjab, (1994) 1 SCC 616 and
concluded in paragraphs 60 and 61 as under:
"Therefore, in
view of our discussions made hereinabove, it is difficult to accept the
contentions of Mr Rohatgi, learned Senior Counsel appearing for the State of
Gujarat that after the charge-sheet is submitted in the court in the criminal proceeding
it was not open for this Court or even for the High Court to direct investigation
of the case to be handed over to CBI or to any independent agency. Therefore, it
can safely be concluded that in an appropriate case when the court feels that
the investigation by the police authorities is not in the proper direction and in
order to do complete justice in the case and as the high police officials are involved
in the said crime, it was always open to the court to hand over the investigation
to the independent agency like CBI.
It cannot be said that
after the charge-sheet is submitted, the court is not empowered, in an appropriate
case, to hand over the investigation to an independent agency like CBI. 61.
Keeping this discussion in mind, that is to say, in an appropriate case, the court
is empowered to hand over the investigation to an independent agency like CBI even
when the charge-sheet has been submitted, we now deal with the facts of this case
whether such investigation should be transferred to the CBI Authorities or any
other independent agency in spite of the fact that the charge-sheet has been submitted
in court.
On this ground, we have
carefully examined the eight action taken reports submitted by the State police
authorities before us and also the various materials produced and the submissions
of the learned counsel for both the parties." (Emphasis supplied)It is clear
that in an appropriate case, particularly, when the Court feels that the investigation
by the State police authorities is not in the proper direction as the high police
officials are involved, in order to do complete justice, it is always open to
the Court to hand over the investigation to an independent and specialized
agency like the CBI.
12.
In
the light of the above principles, now let us consider the second issue (b)
viz., whether the investigation relating to the encounter killing of Tulsiram Prajapati
should be transferred to the CBI in spite of the fact that the charge-sheet has
been submitted in the Court by the State Police.
13.
It
is the specific stand of the writ petitioner that while considering the grievance
of Rubabbuddin Sheikh about the death of his brother Sohrabuddin in a fake encounter,
the present petitioner, mother of Tulsiram Prajapati also filed Writ Petition
(Crl.) No. 115 of 2007 and, the same was tagged along with Writ Petition (Crl.)
No. 6 of 2007 which was filed by brother of Sohrabuddin. The cause title of the
case vide Rubabbuddin Sheikh vs. State of Gujarat & Ors. (2010) 2 SCC 200 shows
that Writ Petition (Crl.) No. 115 of 2007 was heard along with Writ Petition
(Crl.) No. 6 of 2007.
Though at the end of
the judgment, this Court directed that Writ Petition (Crl.) No. 115 of 2007 be listed
after eight weeks before an appropriate Bench. As pointed out by the learned
counsel for the petitioner and the CBI, the said judgment records that there is
strong suspicion that the `third person' picked up with 20Sohrabuddin was Tulsiram
Prajapati. It was also observed that call records of Tulsiram Prajapati were not
properly analyzed and there was no justification for the then investigation
officer, Ms. Geeta Johri to have walked out of the investigation pertaining to
Tulsiram Prajapati.
In para 65, the
following observations are relevant: "65. It also appears from the charge-sheet
that it identifies the third person who was taken to Disha farm as Kalimuddin. But
it does not contain the details of what happened to him once he was abducted. The
possibility of the third person being Tulsiram Prajapati cannot be ruled out,
although the police authorities or the State had made all possible efforts to
show that it was not Tulsiram. In our view, the facts surrounding his death
evokes strong suspicion that a deliberate attempt was made to destroy a human
witness." (Emphasis supplied)Apart from the above conclusion, after analyzing
several Action Taken Reports filed by the State and various circumstances and in
view of the involvement of the high police officials of the State in the crime therein,
this Court directed the CBI to investigate all the aspects of the case relating
to the killing of Sohrabuddin and his wife Kausarbi including the possibility
of a "larger conspiracy'"
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
Pursuant
to the said direction, the CBI investigated the cause of death of Sohrabuddin and
his wife Kausarbi. The CBI, in their counter affidavit, has specifically stated
that as per their investigation Tulsiram Prajapati was a key witness in the
murder of Sohrabuddin and he was the `third person' who accompanied Sohrabuddin
from Hyderabad and killing of Tulsiram Prajapati was a part of the same
conspiracy. It was further stated that all the records qua Tulsiram Prajapati's
case were crucial to unearth the "larger conspiracy" regarding the Sohrabuddin's
case which despite being sought were not given by the State of Gujarat.
15.
As
against the assertion of the writ petitioner and the stand of the CBI, Mr.
Ranjit Kumar and Mr. Ram Jethmalani, learned senior counsel appearing for
respondent Nos. 1 and 2 respectively cited several instances and relied on certain
materials to show that inquiry by the CBI is not warranted. They are:
i.
Tulsiram
Prajapati, as mentioned in the petition and in the prayer was the sharp shooter
of Sohrabuddin. He was co-accused of Sohrabuddin in Hamid Lala's case and was
taken into custody only on 29.11.2005. Obviously, he had been absconding till
then. In other words, he had been absconding for nearly a year before he was arrested.
After his arrest, he was lodged in Central Jail, Udaipur. While in custody, he
and two of his jail-mates addressed a letter dated 11.05.2006 to the Collector,
Udaipur informing him about the attack carried out on them in the jail premises
and they were badly injured. He did not even express a suspicion about any one who
planned the attack on him. He named seven persons who had actually participated
in the attack. In the said letter, he did not allege or even suspect that this dangerous
assault in jail had anything to do with the Sohrabuddin-Kausarbi fake encounter
case or that he was being eliminated because he was a witness of the murder of
either Sohrabuddin or his wife.
ii.
On
18.05.2006, Tulsiram Prajapati addressed another letter to the Chairman, NHRC,
New Delhi. In this letter again, he did not allege that he was an eye witness and
that is why he was afraid of being eliminated. He, however, did admit that he
is an accused in serious cases in the State of Maharashtra, Gujarat, Madhya Pradesh
and Rajasthan. What he alleged was that there was a conspiracy among the police
officers of these States to knock him out. Even the NHRC did not draw any inference.
Ultimately, Tulsiram Prajapati was killed at about 8.00 a.m. on 28.12.2006. The
scene of offence was within the jurisdiction of Ambaji Police Station in District
Banaskantha of Gujarat. An FIR of this incident was registered on the same day
within 15 minutes.
iii.
Till
his death, no evidence had emerged that he had accompanied Sohrabuddin about 13
months back i.e. on 25.11.2005 to Gujarat where the encounter took place on the
outskirts of Ahmedabad.
iv.
The
order of this Court in Rubabbuddin Sheikh (supra) has been made under unfortunate
circumstances without hearing anybody except the State of Gujarat. It is the
Union of India and Amicus who is a law officer of the Union of India that wanted
the investigation into the Sohrabuddin's case be transferred to the CBI which
had been fully investigated by the State police and resulted in a charge-sheet
as far back as on 16.07.2007. The main ground on which faults were found was
that the investigation was the alleged failure to identify the Andhra Pradesh
Police officers and others who participated in the abduction of the couple from
Hyderabad to Gujarat leading eventually to their being killed.
v.
Apart
from the 13 accused who had originally been charge-sheeted by the Gujarat Police
as a result of their investigation, the CBI, on 23.07.2010, added the then Home
Minister of Gujarat as accused No.16 and involved him in the Sohrabuddin's
murder case.
vi.
The
CBI submitted two reports- Status Report No.1 on 30.07.2010 and a week
thereafter, they filed the charge-sheet. In pursuance of the charge-sheet, accused
No.16-Amit Shah was arrested on 25.07.2010 and released on bail by the High
Court of Gujarat on 29.10.2010. The order releasing him on bail is subject matter
of challenge in SLP (Crl.) No. 9003 of 2010. The Status Report No.1, filed by the
CBI before the Bench on 30.07.2010 informed the Court that Tulsiram Prajapati
was abducted along with Sohrabuddin and Kausarbi and he was handed over to the
Rajasthan Police. There is no explanation as to why he was not killed along
with Kausarbi or Sohrabuddin. After all, both were arch criminals jointly involved
in several murderous activities all over the country. When he was spared for 13
months and then disposed of during this time he had every opportunity to
disclose that he was an eye witness of the Sohrabuddin's murder case.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16. By placing all the above
details and further materials both the senior counsel submitted:i) By filing
the charge-sheet by the Gujarat Police the State has granted the prayer which Narmada
Bai has made in her writ petition. ii) The persons whom she has implicated have
all been charge-sheeted by the Gujarat Police.iii) The conduct of the CBI does not
inspire any confidence in this case. It has become a party to a political
conspiracy. iv) In the Status Report Nos. 1 and 2 filed by the CBI and submitted
before the other Bench, they have already reported to the Court that the Sohrabuddin
couple on their fateful journey from Hyderabad to Gujarat were accompanied by a
`third person' and that `third person' was Tulsiram Prajapati. This is a dishonest
finding based upon some fabricated circumstances which are capable of being
easily demolished. v) The order dated 12.01.2010 in Rubabbuddin Sheikh (supra) is
contrary to binding authorities and no credence or value can in law be assigned
to the two Status reports. The very anxiety on the other side that this should
be handed over to the CBI creates a serious apprehension about the impartiality
and independence of this agency. Analysis as to issue (b):
17. Inasmuch as the
present writ petition is having a bearing on the decision of the writ petition filed
by Rubabbuddin Sheikh and also the claim of the petitioner, the observations
made therein, particularly, strong suspicion about the `third person' accompanied
Sohrabuddin, it is but proper to advert factual details, discussion and ultimate
conclusion of this Court in Rubabbudin Sheikh's case. Acting on a letter
written by Rubabbuddin Sheikh to the Chief Justice of India about the killing
of his brother Sohrabuddin Sheikh in a fake encounter and disappearance of his sister-in-law
Kausarbi at the hands of the Anti-Terrorist Squad (ATS), Gujarat Police and
Rajasthan Special Task Force (RSTF), the Registry of this Court, on 21.01.2007,
forwarded the letter to the Director General of Police, Gujarat for necessary action.
It is further seen that after six months, the Director General of Police,
Gujarat directed Ms. Geeta Johri, Inspector General of Police (Crime), to
inquire about the facts stated in the letter. A case was registered as Enquiry
No. 66 of 2006 and from 11.09.2006 to 22.01.2007, four interim reports were
submitted by Mr. V.L. Solanki, Police Inspector, working under Ms. Geeta Johri.
In Writ Petition No. 6 of 2007, Rubabbuddin Sheikh prayed for direction for investigation
by the CBI into the alleged abduction and fake encounter of his brother Sohrabuddin
by the Gujarat Police Authorities and also prayed for registration of an offence
and investigation by the CBI into the alleged encounter of one Tulsiram Prajapati,
a close associate of Sohrabuddin, who was allegedly used to locate and abduct
Sohrabuddin and his wife Kasurbi, and was thus a material witness against the police
personnel. He also prayed for production of Kausarbi, his sister-in-law. After
going through various reports, arguments of the counsel for the writ petitioner
and the State of Gujarat as well as Solicitor General for India, who appeared
as Amicus Curiae, this Court disposed 28of the writ petition by entrusting the
investigation to the CBI. Even before the said Bench, such move was strongly
resisted by the State through their senior counsel Mr. Mukul Rohtagi.
18. Mr. Ram Jethmalani, learned
senior counsel appearing for the respondent No. 2 in the present writ petition
vehemently submitted that the entire discussion and the ultimate conclusion in Rubabbuddin
Sheikh's case is unacceptable and no reliance needs to be placed on it. He also
submitted that respondent No. 2 and other police officials were not heard by the
said Bench before ordering fresh investigation by the CBI. It is true that in the
said writ petition, on behalf of the respondents, the Bench heard only the
counsel for the State of Gujarat, however, it is not the case of any one that
the State was not given adequate opportunity before the said Bench. As said
earlier, in fact, the State was represented by Mr. Mukul Rohtagi, reputed
senior counsel and he put forth all relevant materials highlighting the stand
of the State. Inasmuch as all the police officials of the State of Gujarat including
the respondent No. 2 in the present writ petition were part of the State in Rubabuddin
Sheikh's case, we are of the view that it cannot be said that the same is not
applicable to the case on hand. The following conclusion in Rubabbuddin
Sheikh's case are relevant: "
It is an admitted
position in the present case that the accusations are directed against the
local police personnel in which the high police officials of the State of Gujarat
have been made the accused. Therefore, it would be proper for the writ
petitioner or even the public to come forward to say that if the investigation
carried out by the police personnel of the State of Gujarat is done, the writ
petitioner and their family members would be highly prejudiced and the investigation
would also not come to an end with proper finding and if investigation is
allowed to be carried out by the local police authorities, we feel that all
concerned including the relatives of the deceased may feel that investigation was
not proper and in that circumstances it would be fit and proper that the writ petitioner
and the relatives of the deceased should be assured that an independent agency should
look into the matter and that would lend the final outcome of the investigation
credibility however faithfully the local police may carry out the investigation,
particularly when the gross allegations have been made against the high police officials
of the State of Gujarat and for which some high police officials have already
been taken into custody.
It is also well known
that when police officials of the State were involved in the crime and in fact they
are investigating the case, it would be proper and interest of justice would be
better served if the investigation is directed to be carried out by the CBI Authorities,
in that case CBI Authorities would be an appropriate authority to investigate the
case. 60. Therefore, in view of our discussions made hereinabove, it is
difficult to accept the contentions of Mr Rohatgi, learned Senior Counsel
appearing for the State of Gujarat that after the charge-sheet is submitted in the
court in the criminal proceeding it was not open for this Court or even for the
High Court to direct investigation of the case to be handed over to CBI or to
any independent agency. Therefore, it can 30safely be concluded that in an appropriate
case when the court feels that the investigation by the police authorities is
not in the proper direction and in order to do complete justice in the case and
as the high police officials are involved in the said crime, it was always open
to the court to hand over the investigation to the independent agency like CBI.
It cannot be said that
after the charge-sheet is submitted, the court is not empowered, in an appropriate
case, to hand over the investigation to an independent agency like CBI.61. Keeping
this discussion in mind, that is to say, in an appropriate case, the court is empowered
to hand over the investigation to an independent agency like CBI even when the
charge-sheet has been submitted, we now deal with the facts of this case whether
such investigation should be transferred to the CBI Authorities or any other
independent agency in spite of the fact that the charge-sheet has been
submitted in court....................................... 62. From a careful examination
of the materials on record including the eight action taken reports submitted by
the State police authorities and considering the respective submissions of the learned
Senior Counsel for the parties, we are of the view that there are large and various
discrepancies in such reports and the investigation conducted by the Police Authorities
of the State of Gujarat and also the charge-sheet filed by the State investigating
agency cannot be said to have run in a proper direction.
It appears from the charge-sheet
itself that it does not reveal the identity of police personnel of Andhra
Pradesh even when it states that Sohrabuddin and two others were picked up by
Gujarat Police personnel, accompanied by seven personnel of Hyderabad Police.
It also appears from the charge-sheet that Kausarbi was taken into one of the
two Tata Sumo Jeeps in which these police personnel accompanied the accused.
They were not even among the people who were listed as accused. Mr Gopal Subramanium,
Additional Solicitor General for India (as he then was) was justified in making
the comment that an honest investigating agency cannot plead their inability to
identify seven personnel of the police force of the State.
It also appears from the
charge-sheet that it identifies the third person who was taken to Disha farm as
Kalimuddin. But it does not contain the details of what happened to him once he
was abducted. The possibility of the third person being Tulsiram Prajapati cannot
be ruled out, although the police authorities or the State had made all possible
efforts to show that it was not Tulsiram. In our view, the facts surrounding
his death evokes strong suspicion that a deliberate attempt was made to destroy
a human witness. 68. From the above factual discrepancies appearing in the eight
action taken reports and from the charge-sheet, we, therefore, feel that the Police
Authorities of the State of Gujarat had failed to carry out a fair and impartial
investigation as we initially wanted them to do. It cannot be questioned that the
offences the high police officials have committed were of grave nature which needs
to be strictly dealt with."After arriving at such conclusion, the Bench
directed the CBI to investigate all aspects of the case relating to the killing
of Sohrabuddin and his wife Kausarbi including the alleged possibility of a
"larger conspiracy".
1.
2.
3.
4.
5.
6.
7.
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9.
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19.
It
is clear that the above judgment records that there was a strong suspicion that
the `third person' picked up with Sohrabuddin was Tulsiram Prajapati. It was also
observed that the call records of Tulsiram were not properly analyzed and there
was no justification for the then Investigation Officer - Ms. Geeta Johri to have
walked out of the investigation pertaining to Tulsiram Prajapati. The Court had
also directed 32the CBI to unearth "larger conspiracy" regarding the
Sohrabuddin's murder. In such circumstances, we are of the view that those observations
and directions cannot lightly be taken note of and it is the duty of the CBI to
go into all the details as directed by this Court.
20.
Countering
the stand of the petitioner, CBI and Union of India, the State and other respondents
projected the case relating to Navrangpura which took place on 08.12.2004. The
scene of offence was the office premises of a firm called Popular Builders
owned by two Patel brothers - Raman Patel and Dashrath Patel. Some unknown
persons entered into the premises and they did not kill anyone but they fired shots
which damaged the computer installed in the office. An employee of the firm, who
was sitting on the ground floor, where the incident took place, lodged an FIR with
the Navrangpura Police Station on 08.12.2004 in the city of Ahmedabad. The FIR
did not name any one of the assailant, however, it was then discovered that the
FIR was substantially a false one and the suspects were known and yet had not
been named. As a result of fresh discovery made during the course of investigation,
it was Patel Brothers who were ultimately charge-sheeted for filing a false case.
The second case is
Hamid Lala murder case in which one Hamid Lala, a protector of marble dealers of
Rajasthan against criminal extortion by Sohrabuddin gang was shot dead at a place
within the jurisdiction of Ambaji Police Station, Udaipur in the State of
Rajasthan. This incident took place on 31.12.2004. It is a fact that Sohrabuddin
after committing Hamid Lala's murder absconded and was not available to the Rajasthan
Police. Later, it came to the knowledge of the investigating authorities that
he had been hiding in a village of Madhya Pradesh. In the Hamid Lala murder case,
Sohrabuddin's co-accused were Tulsiram Prajapati, Sylvester and one Azamkhan. It
was further pointed out that one Kalimuddin @ Naimuddin another notorious
criminal wanted in many serious cases was residing in the State of Andhra
Pradesh along with his sister Saleema Begum. They were acting as informers of
the Andhra Pradesh Police and they were under their protection. Saleema Begum
was residing in Government Railway Quarters. It was Kalimuddin, who seems to
have approached by somebody who invited Sohrabuddin and his wife Kausarbi from
their hide out in Madhya Pradesh to Hyderabad.
This happened in the
middle of November, 2005. It was further highlighted that on or about
22.11.2005, Sohrabuddin and his wife Kausarbi left by a luxury bus for Sangli
in Maharashtra. Two tickets for the bus journey were purchased by one Sri Hari.
The bus was pursued by police vehicle, two of them were in Tata Sumo vehicles belonging
to the Andhra Pradesh Police. They were driven by two drivers in the employment
of police being ordinary policemen. The Andhra Pradesh police officers who sat in
these two vehicles have not been identified despite investigation both by the
Gujarat Police as well as later by the CBI. Sohrabuddin was done to death in an
encounter with the police in the early morning of 26.11.2005. In the eventual
charge-sheet filed by the Gujarat Police on 16.07.2007 against 13 persons it
was reported that the encounter was a fake one. It is the definite case of the respondent
No. 2 that the preliminary enquiry was first registered on 27.06.2006. In the
charge-sheet filed on 16.07.2007, the Gujarat Police found no evidence of any kind
to implicate the respondent No. 2-Amit Shah.
1.
2.
3.
4.
5.
6.
7.
8.
9.
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20.
21.
Mr.
Ranjit Kumar and Mr. Ram Jethmalani, learned senior counsel pointed out that the
Gujarat Police while investigating Sohrabuddin's murder case had conducted a
good part of investigation in the State of Andhra Pradesh. The Andhra Pradesh Police,
however, was determined to yield no clue whatsoever about the role of the State
police in the murder. Ms. Geeta Johri, the head of the Gujarat Investigating Chief
had interrogated the potential witnesses but she drew a blank. She was not provided
with more materials such as Vehicle Entry Register for further investigation. The
Gujarat police headed by Ms. Johri had come to the conclusion that it was possible
that the couple was accompanied by a `third person' and in all probability that
person was Kalimuddin, who had succeeded in getting the couple from Madhya Pradesh
to Hyderabad and he handed over the couple to the murdering team which certainly
included the Andhra Pradesh officers.
22.
According
to the learned senior counsel, from all the details particularly, the charge-sheet
filed by the Gujarat Police which included even senior police officers as accused,
there is no need for further investigation by the CBI. Even otherwise,
according to them, the conduct of the CBI does not inspire any confidence in
this case. It has become party to a political conspiracy and acting as subordinate
police force of the Central Government in sensitive cases having political
implications.
23.
If
we analyze the allegations of the State and other respondents with reference to
the materials placed with the stand taken by the CBI, it would be difficult to
accept it in its entirety. It is the definite case of the CBI that the
abduction of Sohrabuddin and Kausarbi and their subsequent murders as well as
the murder of Tulsiram Prajapati are one series of acts, so connected together
as to form the same transaction under Section 220 of the Cr.P.C. As rightly
pointed out by the CBI, if two parts of the same transaction are investigated and
prosecuted by different agencies, it may cause failure of justice not only in one
case but in other trial as well. It is further seen that there is substantial
material already on record which makes it probable that the prime motive of elimination
of Tulsiram Prajapati was that he was a witness to abduction of Sohrabuddin and
Kausarbi. Both oral and documentary evidence raise strong suspicion that the encounter
was fake and stage managed as predicted by Tulsiram Prajapati prior to his death
in a number of communications. We have already adverted to his complaint to the
District Collector, Udaipur, Rajasthan and representation to the NHRC, New Delhi.
In both the representations Tulsiram Prajapati highlighted about the danger to his
life. In fact, the NHRC forwarded his representation to the Director General of
Police, Gujarat for necessary action.
24.
It
is relevant to point out the letter of Shri V.L. Solanki dated 18.12.2006 seeking
permission to interrogate Tulsiram Prajapati and Sylvester lodged in Udaipur
Jail. With regard to the letter, Ms. Geeta Johri, Head of SIT, is alleged to have
recorded that even she may be given permission to accompany the I.O. for
interrogation. It was pointed out by the CBI that the letter of Shri V.L.
Solanki containing the signature of Ms. Geeta Johri was not found in the official
file. In its place, it was pointed out that a fabricated note dated 05.01.2007
along 38with a noting of Shri G.C.Raigar dated 06.01/08.01.2007 was found in
the file in which it was recorded as under: "To go to Udaipur to interrogate
accused Sylvester and Tulsiram Prajapati (both being allegedly primary
witnesses in the case) of whom Tulsi was recently encountered at BK by border
range."
If we compare the note
and the above record of statement, it shows that each one is self contradictory,
more particularly, the note seeks to interrogate the dead man. It also cannot
be ruled out that the stand taken by the CBI that as soon as the State police learnt
about the direction of investigation by Ms. Geeta Johri, immediate pre-emptive
steps have been taken to eliminate Tulsiram Prajapati. The CBI has pointed out that
the critical document is the note dated 22.05.2007 in the handwriting of Ms.
Geeta Johri which records as under: "There is a systematic effort on the part
of the State Government supporting the police to tamper with witnesses and
evidences....." It was pointed out that the words "State Government
supporting" are sought to be struck off and are substituted by
"certain agencies including" in place of "State Government 39supporting".
This was pointed out as a direct evidence of systematic effort of the State Government
attempting to tamper with the witnesses and evidences.
The CBI has also
pointed out that Ms.Geeta Johri in her note dated 22.05.2007 recorded that "...the
Government may please therefore be moved to handover the case to the CBI for
the purpose of meting out justice to the petitioners and maintaining the image of
Gujarat Police..."It is relevant to point out that the FIR recorded by the
Gujarat Police in Sohrabuddin's case claimed it to be an encounter death and it
was only on the intervention and issuance of rule nisi by this Court and filing
of eight Action Taken Reports, the SIT informed this Court that it was a fake encounter
and identified the police officials.
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22.
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24.
25.
Apart
from the above vital information, it is useful to refer that even after the
transfer of Sohrabuddin's case to the CBI on 12.01.2010, the Gujarat Police did
not move till May, 2010. The first arrest in the Tulsiram Prajapti was made in
May, 2010. Further, when the CBI laid charge-sheet on 23.07.2010 in Sohrabuddin's
case, the State promptly 40concluded its investigation and filed charge-sheet
in Tulsiram Prajapati's case on 30.07.2010. It was also pointed out that this was
done only because after repeated requests the Gujarat Police handed over the copies
of notes, diaries in Tulsiram Prajapati's case to the CBI in the month of May,
2010.
26.
Another
important aspect is that on earlier occasions, Tulsiram Prajapti was produced before
the Court in Ahmedabad through video conferencing and he was removed from jail on
27.12.2006 and produced before a Court, when ultimately, on 28.12.2006 i.e. the
next day, he was killed.
27.
According
to the CBI, the investigation has revealed that Tulsiram Prajapati was the `third
person' accompanying Sohrabuddin and Kausarbi on the fateful night of their
abduction and subsequent murders in the year 2005. The investigation further revealed
that after the abduction of Sohrabuddin and Kausarbi, police personnel of
Rajasthan had taken away Tulsiram Prajapati from Valsad on 23.11.2005. However,
it was pointed out by the CBI that he was shown to 41have been arrested on 29.11.2005
at Bhilwara by the Rajasthan Police.
28.
Nayamuddin
Shaikh, in his statement dated 19.02.2010, before the CBI has mentioned that
they had gone to see off his brother Sohrabuddin, Kausarbi and Tulsiram Prajapati
from Indore bus stand for Hyderabad and that Sohrabuddin had told him that they
would be staying with Kalimuddin in Hyderabad. The above statement of Nayamuddin
Shaikh is corroborated by the statement of Rubabuddin Shaikh dated 18.02.2010
wherein he had stated that Nayamuddin told him that from Indore, Tulsiram Prajapati,
friend of Sohrabuddin had also joined them for going to Hyderabad. Rubabuddin
had further stated that when Tulsiram Prajapati was brought from Udaipur to Ujjain
for court hearing, Tulsiram Prajapati had told him that he along with Sohrabuddin
and Kausarbi had gone to Hyderabad and had stayed with Kalimuddin in Hyderabad.
29.
The
statement of Azam Khan dated 26.03.2010 indicates the manner in which the abduction
of Sohrabuddin and Kausarbi was planned and executed. Azam Khan, in his statement
had stated that he and Tulsiram Prajapati were lodged in Udaipur prison at
which time Tulsiram Prajapati told him that on information given by Tulsiram Prajapati,
Sohrabuddin, Kausarbi and Tulsiram were abducted from Hyderabad. Among the entire
statement of Azam Khan, the relevant part is that Tulsiram Prajapati helped in tracking
down Sohrabuddin.
30.
Learned
senior counsel for the CBI, Mr. K.T.S. Tulsi has pointed out that since the CBI
had primarily conducted the investigation in the case of encounter of
Sohrabuddin and the murder of Kausarbi, it has so far not launched a full fledged
investigation into the circumstances in which Tulsiram Prajapati was killed. According
to him, certain facts have come to the notice of the CBI only as part of "larger
conspiracy" with regard to which investigation was ordered by this Court and
it was pointed out that full-fledged investigation by the CBI alone reveal
further facts and lead to more direct evidence. Mr. K.T.S. Tulsi is right in
claiming that the investigation in every criminal case is conducted on the
basis of suspicion and reason to believe and to apply the 43standard of proof
beyond doubt at a stage when a full fledged investigation is yet to be launched.
31.
It
is not in dispute that it is the age-old maxim that justice must not only be done
but must be seen to be done. The fact that in the case of murder of an
associate of Tulsiram Prajapati, Senior police officials and a senior politician
were accused which may shake the confidence of public in investigation
conducted by the State Police. If the majesty of rule of law is to be upheld
and if it is to be ensured that the guilty are punished in accordance with law notwithstanding
their status and authority which they might have enjoyed, it is desirable to
entrust the investigation to the CBI.
32.
As
stated earlier, it is the specific claim of the State of Gujarat that they have
conducted a fair and impartial investigation into the killing of Tulsiram Prajapati,
however, analysis of the materials which we have already discussed show several
lacuna on the part of the investigation by the State Government. It is relevant
to point out that much before the incident dated 28.12.2006 which happened in village
Chappri in Banaskantha District of the State of Gujarat in which Tulsiram Prajapati
was allegedly shot in an encounter while he had opened fire on the police
party, who was on the look out for him to apprehend him, after he had allegedly
escaped from a running train while being taken back to Rajasthan from Gujarat
where he was stated to be produced in a court proceeding, Tulsiram Prajapati
lodged two complaints in written, one to the Collector, Udaipur and another
addressed to the Chairman, NHRC, New Delhi expressing the apprehension that he is
likely and going to be killed by Gujarat and Rajasthan police. In fact, on 28.12.2006,
Tulsiram Prajapati has been killed in the fake encounter which has now being
admitted to be a fake counter after a gap of 3 = years.
33.
In
Md. Anis vs. Union of India and Ors. 1994 Supp (1) SCC 145, it has been
observed by this Court that: "5......Fair and impartial investigation by an
independent agency, not involved in the controversy is the demand of public
interest. If the investigation is by an agency, which is allegedly privy to the
dispute, the credibility of the investigation will be doubted and that will be
contrary to the public interest as well as the interest of justice......."
"2.....Doubts were expressed regarding fairness of investigation as it was
feard that as the local police was 45 alleged to be involved in the encounter,
the investigation by an officer of the UP Cadre may not be impartial...."
34.
In
another decision of this Court in R.S. Sodhi vs. State of U.P. & Ors. 1994 Supp
(1) SCC 143, the following conclusion is relevant: "2......We have perused
the events that have taken place since the incidents but we are refraining from
entering upon the details thereof lest it may prejudice any party but we think that
since the accusations are directed against the local police personnel it would be
desirable to entrust the investigation to an independent agency like the Central
Bureau of Investigation so that all concerned including the relatives of the deceased
may feel assured that an independent agency is looking into the matter and that
would lend the final outcome of the investigation credibility. However faithfully
the local police may carry out the investigation, the same will lack credibility
since the allegations are against them. It is only with that in mind that we
having thought it both advisable and desirable as well as in the interest of justice
to entrust the investigation to the Central Bureau of Investigation forthwith and
we do hope that it would complete the investigation at an early date so that
those involved in the occurrences, one way or the other, may be brought to
book. We direct accordingly......"
35.
In
both these decisions, this Court refrained from expressing any opinion on the
allegations made by either side but thought it wise to have the incident investigated
by an independent agency like the CBI so that it may bear credibility. This Court
felt that no matter how faithfully and honestly the local police may carry out the
investigation, the same will lack credibility as allegations were directed against
them. This Court, therefore, thought it both desirable and advisable and in the
interest of justice to entrust the investigation to the CBI so that it may complete
the investigation at an early date. It was clearly stated that in so ordering no
reflection either on the local police of the State Government was intended. This
Court merely acted in public interest.
36.
The
above decisions and the principles stated therein have been referred to and followed
by this Court in Rubbabuddin Sheikh (supra) where also it was held that
considering the fact that the allegations have been leveled against higher level
police officers, despite the investigation made by the police authorities of
the State of Gujarat, ordered investigation by the CBI. Without entering into
the allegations leveled by either of the parties, we are of the view that it would
be prudent and advisable to transfer the investigation to an independent
agency. It is trite law that accused persons do not have a say in the matter of
appointment of an investigation agency. The accused persons cannot choose as to
which investigation agency must investigate the alleged offence committed by
them.
37.
In
view of our discussions and submission of learned counsel on either side and keeping
in mind the earlier directions given by this Court, although, charge-sheet has
been filed by the State of Gujarat after a gap of 3 = years after the incident,
that too after pronouncement of judgment in Rubbabudin's case and considering the
nature of crime that has been allegedly committed not by any third party but by
the police personnel of the State of Gujarat, we are satisfied that the
investigation conducted and concluded in the present case by the State police
cannot be accepted. In view of various circumstances highlighted and in the
light of the involvement of police officials of the State of Gujarat and police
officers of two other States, i.e. Andhra Pradesh and Rajasthan, it would not
be desirable to allow the Gujarat State Police to continue with the
investigation, accordingly, to meet the ends of justice and in the public interest,
we feel that the CBI should be directed to take the investigation. Submission of
Report by the CBI to this Court and subsequent monitoring.
38.
The
other question relates to submission of a report by the CBI to this Court and further
monitoring in the case. Though in Rubabbudin Sheikh's case (supra), this Court
directed the CBI that after investigation submits a report to this Court and thereafter,
further necessary orders will be passed in accordance with the said report, in view
of the principles laid down in series of decisions by this Court, we are not
persuaded to accept the course relating to submission of report to this court and
monitoring thereafter.
a. In Vineet Narain
(supra), this Court held as under: "In case of persons against whom a
prima facie case is made out and a charge-sheet is filed in the competent
court, it is that court which will then deal with that case on merits, in accordance
with law."
b. In Sushil Kumar Modi (supra),
this Court observed that the monitoring process in the High Court in respect of
the particular matter had come to an end with the filing of the charge-sheet in
the Special Court and the matter relating to execution of the warrant issued by
the Special Court against Shri Laloo Prasad Yadav was a matter only within the competence
of the Special Court so that there was no occasion for the High Court to be involved
in any manner with the execution of the warrant. By relying on decision in Vineet
Narain's case (supra), this Court reiterated 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 investigating
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. c) In
M.C. Mehta (Taj Corridor Scam) vs. Union of India and Others, (2007) 1 SCC 110,
this Court again reiterated the same principle. The following conclusion is
relevant: "
At the outset, we may
state that this Court has repeatedly emphasized in the above judgments that in Supreme
Court monitored cases this Court is concerned with ensuring proper and honest performance
of its duty by CBI and that this Court is not concerned with the merits of the
accusations in investigation, which are to be determined at the trial on the
filing of the charge- 50 sheet in the competent court, according to the
ordinary procedure prescribed by law... ....." After saying so, this Court
concluded: "34. We, accordingly, direct CBI to place the evidence/material
collected by the investigating team along with the report of the SP as required
under Section 173(2) CrPC before the court/Special Judge concerned who will decide
the matter in accordance with law." 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 the CBI require any further direction,
they are free to approach this Court by way of an application. Conclusion:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
In
view of the above discussion, the Police Authorities of the Gujarat State are directed
to handover all the records of the present case to the CBI within two weeks from
this date and the CBI shall investigate all aspects of the case relating to the
killing of Tulsiram Prajapati and file a report to the concerned court/special court
having jurisdiction within a period of six months from the date of taking over of
the investigation from the State Police Authorities. We also direct the Police Authorities
of the State of Gujarat, Rajasthan and Andhra Pradesh to cooperate with the CBI
Authorities in conducting the investigation.
40.
It
is made clear that any observation made in this order is only for the limited purpose
of deciding the issue whether investigation is to be handed over to the CBI or
not and shall not be construed as expression of opinion on the merits of the
case. Though the petitioner has prayed for compensation for the killing of her son,
inasmuch as we direct the CBI to investigate and submit a report before the court
concerned/special court within six months, depending on the 52outcome of the investigation,
petitioner is permitted to move the said court for necessary direction for
compensation and it is for the said court to pass appropriate orders in
accordance with law. The writ petition is allowed on the above terms.
.................................................J.
(P. SATHASIVAM)
…..............................................J.
(DR. B.S. CHAUHAN)
NEW
DELHI;
APRIL
08, 2011.
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