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CR.MA/15981/2010 1/165 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION No. 15981 of 2010In
CRIMINAL MISC.APPLICATION No. 9832 of 2010In
SPECIAL CRIMINAL APPLICATION No. 1850 of 2009
For Approval and Signature:
HONOURABLE MR.JUSTICE JAYANT PATEL
HON'BLE SMT. JUSTICE ABHILASHA KUMARI
=========================================================
1Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3Whether their Lordships wish to see the fair copy of the judgment ?
4
Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5Whether it is to be circulated to the civil judge ?
========================================================= SIT - THRO' KARNAL SINGH - IPS - Applicant(s)
VersusSAMIMA KAUSAR WD/O MOHMMED SHAMIM RAZA & 4 -
Respondent(s)=========================================================
Appearance :
MR YOGESH S LAKHANI for Applicant(s) : 1,
MR IH SAYED FOR petitioner
MR MUKUL SINHA FOR ORI. petitioner OF SP. CRI. APPLN. NO.1850/2009
MR KAMAL TRIVEDI, LD. ADVOCATE GENERAL AND MR. PK JANI, LD. PUBLIC PROSECUTOR ASSISTED BY MS. SANGEETA VISHEN, APP for STATE Respondent(s) : 3,MR PS CHAMPANERI for Respondent(s) : 4,
=========================================================
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CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL
and
HON'BLE SMT. JUSTICE ABHILASHA KUMARI
Date : 01/12/2011
ORAL JUDGMENT
(Per : HONOURABLE MR.JUSTICE JAYANT PATEL)
1.In order to see that the points, which arise
for consideration can finally be put to an
end in view of development of the
investigation and change in circumstances, it
would be relevant to refer to some important
factual aspects arising by the judgement of
this Court dated 12.8.2010 in Special
Criminal Application No.822 of 2004 and
allied matters and the subsequent development
in the matter.
2.This Court, in its judgement dated 12.8.2010
at paragraphs 2 to 4, had narrated the
incident, as under:-
“2. On 15.6.2004, vide C.R. No.8/2004 of
Crime Branch Police Station, a complaint
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was filed by Shri J.G. Parmar, P.I. (Crime
Branch), Ahmedabad informing that on
14.6.2004 at about 23.00 hrs., an
information was received by Joint
Commissioner of Police Shri P.P. Pandey
through his personal sources that in Blue
Colour Indica Car bearing Registration
No.MH-02-JA-4786, one Javed and two
Pakistani Fidayeens, with arms
and ammunition, have left Mumbai for
reaching Ahmedabad and they were to enter
Ahmedabad early morning at any time. As the
said information was supported by
Intelligence Sources, Additional
Commissioner of Police (Crime Branch),
Mr.D.G. Vanzara called ACP and PI and under
his direct guidance, strong
checking was ordered and it was planned to
catch hold of the car and necessary teams
were constituted; one team at Narol Chokdi
Four-Roads, one team at CTM Four-Roads, one
team at Naroda S.T. Workshop Three-Roads;
one team at Naroda-Himatnagar Railway
Crossing; one team at Indira Bridge Circle;
and one team at Vishala Circle were
deployed and they were comprising of Shri
Amin - ACP, PSI Shri P.G. Waghela, PSI Shri
C.J.Goswami, PI Shri B.D. Vanar, ACP Shri
Singal and PI Shri Agrawat. The teams had
started watch since 1.30 am in the morning
and when there was watch of the team of
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Shri Amin - ACP, at about 4 am in the
morning, at Narol, the above Indica Car
with Registration No.MH-02-JA-4786 came
from Mumbai and took a right turn towards
Naroda, therefore, they had followed
the car. The informations were supplied to
other teams on phone and it was informed on
mobile to Shri Singal that the car had
taken turn from Naroda-Himatnagar Railway
Crossing to Airport Road and it might run
away, therefore, the car is required to be
intercepted. Hence, over Indira Bridge, the
members of the team comprising of ACP Shri
Singal, PI Shri Tarun Barot, PI Shri RI
Patel, PI Shri K.M. Waghela, PI Shri D.H.
Goswami, PSI Shri I.K. Chauhan and other
staff in their vehicle proceeded towards
Airport Road and near Kotarpur Workshop
took a sharp turn and their vehicles were
kept close to the divider and other members
of the team had taken different position.
At that time, when the Indica Car reduced
its speed because of the turning at
Kotarpur Water Works, Commando Mr.Mohan
Nanjibhai (Buckle No.1898), who was sitting
in the Police Vehicle, under the direction
of Shri Amin, fired at the rear tyre of
Indica Car and as a result thereof, the car
had come to a halt, close to the divider.
At that time, from the left side, one
terrorist came out with AK 56, got down and
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took his position behind the divider and
started firing to the Police Vehicle. The
other terrorists, who were sitting in the
car had also started firing, but Shri Amin,
the informant/complainant himself and
Commando Mr.P.C. Mohanbhai and driver of
the car Mr.Bhalabhai and PSI Mr.K.M. Desai
got down from the vehicle and took their
position on the back side of the vehicle,
therefore, they saved themselves and the
Commando, under the orders of Shri Amin,
started firing in his self-defence with
Government weapon AK 47 Rifle. About 10
rounds were fired and during the same, it
was learnt that, as per the information,
they were dangerous terrorists, therefore,
ACP Shri Singal had ordered for firing. The
member of his team, Commando Mr.P.C.
Mohanbhai (Buckle No.2211) and Commando
Mr.A. Chaudhari (Buckle No.842) started
firing towards the persons sitting in the
Indica Car. Therefore, both the Commandos,
by taking their position with their weapons
of AK47 fired 32 rounds and 10 rounds with
the Sten-gun in response to the firing of
the terrorists. Simultaneously, the
informant/complainant with his service
revolver fired four rounds, Shri Amin fired
five rounds, Shri Barot fired six rounds
and Shri I.K. Chauhan fired three rounds
towards terrorists. The cross firing
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continued for some time and thereafter when
the firing was stopped, they went near to
Indica Car and it was found that on the
rear-seat one terrorist, one terrorist on
the driving seat, one female terrorist
sitting next to driver and one terrorist
near the divider, total four terrorists
died on the spot.
3. It was stated in the complaint that all
the deceased were terrorist - Fidayeens of
prohibited Lashkar-e-Taiba had the
conspiracy to kill the Chief Minister of
Gujarat, Shri Narendra Modi with suicidal
attempt, therefore, they had procured arms
and ammunition and wanted to create
terrorist activities in India. The other
aspects were also referred in the
complaints of having possession of arms and
ammunition of foreign automatic weapons
without licence, without passports, etc.,
and also for entering India from Pakistan
without there being proper visa. The
alleged offences in the complaint were
under Section 3(2)(a) & (c), 13, 14 of the
Foreigners' Act, Section 120B, 121, 121A,
122, 123, 307, 553, 186 of IPC, Section 27,
29 of the Arms Act and Section 3(1)(a)(b)
and 3(2), 3(3), 20 and 21 of the Prevention
of Terrorism
Act and Section 135(1) of the Bombay Police
Act. The accused shown in the complaint
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were (1) Jishan Johar @ Jaanbaaz @ Abhas
Abdul Gani, resident of Pakistan and the
addressed shown was Nar Nanak Kalerbadi,
District Gujranwala, Punjab, Pakistan, (2)
Amjad Ali @ Salim @ Chandu @ Raj Kumar; (3)
Javed resident of Poona and (4) a lady
terrorist, whose name and address was not
known. It may be recorded that thereafter,
it has come out that accused No.3 was Javed
@ Praneshkumar Pillai and the lady was
Ishrat Jahan Raza.
4. The investigation of the said complaint
was assigned to Ms.Parixita Gurjar,
A.C.P. Mahila, Crime Branch, Ahmedabad
City. Further, on 14.7.2004, an
application was made to the designated
Judge, Pota Court by the said
investigating officer for addition of
the chargeunder Sections 4 and 5 of
Explosive Substances Act and for the
offence under Section 4 and 53 of the
Prevention of Terrorism Act
(hereinafter referred to as 'POTA”). It
appears that when the substantial
investigation was completed and
investigation in part was yet to be
completed, at that stage, the mother of
deceased Ishrat Jahan named Mrs.Shamima
Kausar Mohammed preferred Special
Criminal Application No.822 of 2004,
challenging the action by the police
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contending that her daughter has been
killed in the fake encounter,
therefore, prayed to direct Central
Bureau of Investigation (hereinafter
referred to 'CBI' for the sake of
convenience) to carry out the
investigation of the complaint
registered with DCP, Ahmedabad City by
registering the case with them. The
prayer is also made in the said
petition to direct the State to provide
adequate compensation to the petitioner
but, of course, no arguments whatsoever
were made by the learned Counsel
appearing for the petitioner on the
said aspect at all at the time of final
hearing of the matter. Therefore, it
can be said that the petitioner
restricted the case to direct
the investigation by CBI as per above
referred prayer only.”
3.Thereafter, there was magisterial inquiry
under Section 176 of Cr. P.C., by Mr. Tamang,
the then Metropolitan Magistrate and the
learned Magistrate recorded the findings,
which were taken note of by this Court in the
above referred judgement at paragraph 41, the
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relevant of which reads as under:-
“41 … But the matter does not end there on
the aspects of other findings recorded by
the learned Magistrate based on; (1) the
presence of well developed rigor mortis on
the body of the deceased at the time of
postmortem; (2) the ballistic report for the
use of the bullet; (3) non-availability of
the signs of gun-powder in the hand-wash
report; (4) the entry and exit wounds of the
bullet marks on the body of the person
concerned; (5) the bullet marks on the
vehicles, …”
4. The learned Magistrate thereafter had
opined that the encounter was not genuine and
there was a conspiracy by the police officers
concerned to earn benefits in service. The
report of the learned Magistrate also came to
be considered in the aforesaid judgement with
the challenge made to it and this Court at
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paragraph 78 deduced the conclusion, the
relevant of which for the purpose of deciding
the present controversy is at paragraphs
78(5) to 78(11), which reads as under:-
“78. In view of the aforesaid
observations and discussions, the
following conclusion can be deduced :-
(1) xxx
(2) xxx
(3) xxx
(4) xxx
(5) There is no material on record
before us of malice or malafide on the
part of the State police officials,
which may lead us to transfer the
investigation to CBI only.
(6) The investigation so far cannot
be said as fully satisfactory by the
I.O., and/or Additional DGP as observed
in the judgement.
(7) There is a report of the
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Metropolitan Magistrate under Section
176 of Cr. P.C., which expresses the
view/finding, if considered would make
the encounter non-genuine or fake one.
The views of the learned Magistrate on
the other
aspects are without material on record
as observed in the judgement.
(8) In view of two
contradictory findings of I.O., and
Additional DGP vis-a-vis the findings
of the Metropolitan Magistrate in the
report under Section 176 of Cr.P.C., on
the aspects of genuineness of the
encounter, the incident deserves
further investigation.
(9) In order to instill confidence and
to provide credibility to the
investigation and to do complete
justice, the investigation deserves to
be made by Special Investigation Team,
as constituted by this Court, as
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observed in the judgement herein above
under Article 226 of the Constitution
of India. The concerned Government or
the establishment is bound to comply
with the directions of this Court and
to provide all necessary
infrastructure.
(10) The members of SIT or SIT work
under the orders of this Court. Hence,
alteration in the composition or
constitution of new SIT, if this Court
finds it proper, cannot have
demoralizing effect, but can be termed
as a transfer of work/assignment
simplicitor.
(11) As one SIT is already functioning
for sensitive riot cases as per the
orders passed by the Apex Court, same
SIT, subject to the change, if any,
made by the Apex Court, deserves to be
entrusted the work of investigation in
order to instill confidence and
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credibility to the investigation.”
5. This Court further passed the order
issuing directions, the relevant of which is
at paragraph 79(b) as under :-
“79. In the result, the following orders :-
(a) xxx
(b) Special Criminal Application No.822 of
2004 and Special Criminal Application
No.1850 of 2009 shall stand allowed to the
extent of constitution and assignment and
transfer of the investigation to the SIT as
observed herein above in the present
judgement for investigation in connection
with C.R. No.8 of 2004 dated 15.6.2009
registered with DCB Police Station,
Ahmedabad City. It is further observed that
SIT shall be at liberty to take all the
steps in accordance with law for
investigation transferred to it and it shall
also have the power to take action in
furtherance thereto in accordance with law.
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The State Government is directed to issue
necessary orders in this regard within two
weeks from the date of receipt of the order
and the said SIT shall submit the report
within three months thereafter to this
Court. The other prayers made by the
petitioner, including to transfer the
investigation to CBI are not granted.”
6. It appears that, thereafter in Criminal
Misc. Application No.9832 of 2010 preferred
by one of the original petitioners, Gopinath
Pillai, Father of the deceased Praneshkumar
Pillai @ Javed Gulammohammad Shaikh of
Special Criminal Application No.1850 of 2009,
this Court observed vide order dated
24.9.2010 at paragraph 8 to 14 as under:-
“8. However, the second ground for review
and recalling of the order for constitution
of SIT and to assign the investigation to
the SIT for Riot cases, may call for
consideration. The said ground would get
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strengthened by the inability expressed by
the SIT for Riot cases itself, as reflected
from its letter dated 30.08.2010, on the
basis of which the proceedings of Criminal
Misc. Application No.10621 of 2010 have been
initiated.
9.The situation, as it emerges from the
record, is that on the date when this Court
passed the judgment and the order on
12.08.2010, this Court had assigned the work
for investigation of the present case to the
members of the SIT constituted by the Apex
Court because they were already functioning
in the State with all infrastructure
available with them, for investigation of
crimes, may be of specified cases marked to
that SIT by the Apex Court. But, it appears
that if the very SIT for Riot cases is
unable to take up the investigation, the
consequences may arise that either no result
may come out for which the directions have
been issued by this Court or in the
alternative, it would not serve any purpose
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whatsoever. In normal circumstances, when
this Court has exercised power under Article
226 of the Constitution, the provisions of
CPC for review of an order would not
automatically apply but the principles
analogous to the provisions of CPC can be
made applicable to the proceedings of this
Court under Article 226 of the Constitution.
Further, if any situation has emerged on
account of any unwillingness shown by the
SIT for Riot cases to take up the
investigation as ordered by this Court, the
same can be considered as a valid ground for
review and/or recalling the order to the
extent of constitution of the said SIT. It
appears to us that considering the facts and
circumstances, and more particularly, in
view of the contents of the letter dated
30.08.2010 addressed by SIT for Riot cases,
coupled with the observations made by the
Apex Court in the proceedings of Special
Leave to Appeal (Crl.) No.7132 of 2010 vide
order dated 06.09.2010, there would be valid
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ground for review and recalling of the order
to the extent of constitution of a new SIT.
At this stage, we may refer to the
observations made by the Apex Court in the
above referred order, the relevant extract
of which reads as under:
“....In the meanwhile, the High Court shall
be at liberty to consider the application
stated to have been filed on behalf of SIT
expressing its inability to undertake the
investigation in terms of the directions
issued by the High Court. The High Court
shall also be at liberty to pass an
appropriate order constituting a proper
agency for investigation of the crime in
question.”
10. Under these circumstances, we find that
inability expressed by the SIT constituted
by the Apex Court to undertake the
investigation in the present case could be
termed as a valid ground for review and to
recall the order for assigning the
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investigation of the present case to that
SIT for Riot cases.
11. The aforesaid would lead us to consider
the question for constituting another SIT.
In order to consider the aforesaid aspects,
we may refer to the relevant observations of
this Court made in Paragraph-74 of the above
referred judgment about the SIT which
deserves to be constituted, the relevant
portion of which reads as under:
“Therefore, we find that if a broad based
SIT is constituted, which would be in a
position to investigate into the incident by
collecting data from various States, which
are concerned and through the Police of
various States, it would be not only more
convenient, but would be more practicable
and would help to trace the truth for the
alleged incident.”
... ... ...
“Under these circumstances, we find that it
would be just and proper to include the
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officers from outside the State as well as
one, who was or is holding very high
position in the Central Bureau of
Investigation.”
12. It may also be observed that at
Paragraph-75, it was interalia observed as
under:
“....We may observe that when the Apex Court
in such highly sensitive matters in the riot
cases in the State of Gujarat, which include
the Police Officers of the State, has found
it proper to assign the work of
investigation to the aforesaid SIT, the same
team can be entrusted the work of the
investigation of the present case and such
would instill confidence and credibility to
the investigation to do complete justice to
the parties and thereby protecting the
fundamental rights of the citizens.”
13. Keeping the aforesaid observations in
mind, if a broad-based SIT is constituted,
it would serve the purpose and would be in
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furtherance of the cause for which the
investigation is so ordered by this Court.
14. In order to consider the officers who
can be included in SIT, we had called for
the names from the applicant Mr.Pillai,
State of Gujarat, as well as the Union of
India, through their respective counsel and
we had also given opportunity to Ms.Shamima
Kauser, petitioner of Special Criminal
Application No.1850 of 2009.”
7. Thereafter, this Court further considered
the matter to deal with the arguments and the
contentions raised by the State, including
that of assigning the work to the Special
Task Force and induction of any officer other
than that of State Cadre in the Special
Investigation Team (‘SIT’ for short) and
further proceeded to constitute a new SIT.
The relevant aspects of the said order (dated
24.9.2010 in Cr. Misc. Application
No.9832/2010) reads from paragraph 20 to 25
as under:-
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“20. It is hardly required to be stated that
a judgment or order of the High Court in
exercise of the power under Article 226 of
the Constitution cannot be nullified by any
executive action of the Government, be it a
policy matter or constitution of a Special
Task Force or the constitution of the
Monitoring Authority, or otherwise.
Therefore, once this Court having recorded
the findings for constitution of a SIT
having a particular character and
composition, such decision on the part of
the State can hardly be considered as a
valid ground to recall the observations made
for constitution of SIT, thereby instilling
confidence and credibility to the
investigation. Under these circumstances,
based on the Notification, such suggestion
cannot be accepted. Further, when this Court
has already ruled for inclusion of certain
officers in the SIT, unwillingness on the
part of the State for induction of any
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officer of IPS cadre from outside the State
can neither be countenanced nor endorsed. We
may record that the Constitution provides
the competence of any State or the Union or
any constitutional authority, including the
judiciary, for protection of the rights of
citizens and controls the exercise of power
by any executive. In a Federal structure
which prevails in our nation, once this
Court has exercised the power under Article
226 of the Constitution, and has ruled for
assigning the investigation to a broad-based
SIT, such reservations expressed on behalf
of the State cannot be countenanced by this
Court. The aforesaid is coupled with the
circumstance that State has not filed any
review application for recalling of the
order. Further, even if the State, for the
reasons best known to it, is desirous of
constituting the Special Task Force or a
Monitoring Authority, it may be made
applicable to other cases, namely, encounter
cases other than the one considered and
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examined by this Court in exercise of the
power under Article 226 of the Constitution.
Further, if such aspect is considered, it
may also indirectly dilute the observations
made by this Court in the judgment and also
by the Apex Court, permitting the High Court
to constitute a new SIT. Hence, we find that
such ground should not operate as a bar or
by way of a second thought for non-
constitution of the SIT and the assignment
of investigation to it. (Emphasis supplied)
21. Having considered the above, and after
taking into consideration the names of the
officers given by different parties, we find
that the new SIT for the present case shall
comprise of the following officers:
1. Shri Karnail Singh – IPS 1984 Batch
– One of the officers nominated by
the Union of India out of the list
of 5 officers.
2. Shri Mohan Jha – IPS 1985 Batch – at
present posted in Gujarat State –
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Nominated as one of the officers by
the Gujarat State out of list of 11
officers.
3. Shri Satish Varma – IPS 1986 Batch –
posted in Gujarat State – one of
the officers nominated from the
list of 4 officers given on behalf
of the applicant - Shri Gopinath
Pillai.
22. The State Government is directed to
issue necessary orders, including
Notification, in this regard, within a
period of two weeks from the date of receipt
of the order.
23. The investigation of I-C.R.No.8/2004
dated 15.06.2004 registered with DCB Police
Station, Ahmedabad City, shall be
transferred to the SIT constituted by this
order. It is further observed that the said
SIT shall be at liberty to take all steps in
accordance with law for investigation
transferred to it and it shall also have
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power to take action in furtherance thereof,
in accordance with law. The State shall
provide necessary infrastructure to the said
SIT.
24. It is further observed and clarified
that the SIT so constituted by the present
order shall not take any
assistance, directly or indirectly, of the
officers of any rank of the State Police, if
they are involved directly or indirectly in
connection with the present incident of
encounter, which is to be investigated by
them.
25. The other directions for investigation
and submission of the report issued vide
judgment and order dated 12.08.2010 shall
remain the same.” (Emphasis supplied)
8. It is only after the constitution of the
aforesaid SIT (hereinafter referred to as the
‘First SIT’ for the sake of convenience), the
implementation of the directions, issued vide
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judgement dated 12.8.2010, for transferring
and assigning of the investigation, actually
started.
9.In the present application on 28.1.2011,
this Court found that there were differences
of opinion amongst the Members of the SIT;
mainly Mr.Satish Verma and, therefore, this
Court passed the further order, the relevant
of which reads from paragraphs 3 to 5 as
under:-
“3. It prima facie appears that because of
certain difference of opinion amongst the
members of SIT, the prayer is made to
appoint any lawyer as amicus curiae for
giving opinion on the legal issues involved
in it while in the course of investigation
or may be thereafter.
4. It also appears from the counter
affidavit filed by Mr.Satish Verma, one of
the member of SIT that there are differences
of opinion amongst the members of SIT, may
be on account of no hierarchy formed in the
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order passed by this Court or mode expressly
not provided for resolving the difference of
opinion. It also appears that as per one of
the member of SIT, Mr. Satish Verma, when he
wanted to investigate certain aspects, the
view was expressed by the other members that
unless the issue is discussed and
unanimously resolved, the investigation may
not be made in this regard. Such has
resulted into the present matter.
5. In order to see that the spirit of the
order passed by us for unearthing the truth
on the aspects as to whether it is a genuine
encounter or a fake encounter and in order
to see that the SIT so constituted can work
with discipline and may be in a position to
resolve the issues, may be on the aspects of
investigation or on legal issues, we find
that the following directions deserves to be
issued -
(1) Mr.Yogesh S.Lakhani, Senior Advocate,
is appointed as amicus curiae for rendering
all legal assistance to the SIT. Office
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shall communicate the present order to
Mr.Lakhani. As regards the professional fees
of Mr.Lakhani for the service which may be
rendered, the State Government will have to
bear the fees and the expenses but the
quantification shall be made as and when the
bills are received or the report is so
submitted. Provisionally, the State shall
deposit the amount of Rs.20,000/- with the
SIT towards legal expenses and in turn, the
said amount as and when required or so
instructed by the amicus curiae, shall be
disbursed by SIT to Mr.Lakhani, subject to
further orders which may be passed by this
Court for quantification of expenses upon
the legal advice or legal proceedings etc.,
if any.
(2) The SIT shall have the following
discipline amongst it :
A) Mr.Karnal Singh, IPS, shall be the
Chairman of SIT - Mr. Mohan Jha, IPS and
Mr.Satish Verma, IPS shall be the members of
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SIT.
B) Generally, the decision shall be taken
by SIT after discussion with all the members
and if there is unanimity, the said decision
shall be acted upon without any hesitation.
If any member of the SIT expresses a
dissenting view, it would be open to the SIT
to proceed in accordance with the majority
view. But at the same time, the dissenting
view shall be taken note of. The aforesaid
is with the express observation that in the
mode and manner of investigation, such would
apply.
C) So far as the field of investigation is
concerned, SIT shall be guided by the
observations made in the judgment dated
12.08.2010. We may broadly state that SIT
has to keep in mind three aspects; one would
be the FIR already registered, another would
be the area or the points over which the
view has been expressed by the learned
Magistrate in the inquiry made under section
176 of the Cr.P.C. and the third would be as
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to whether it is a genuine or fake
encounter. No compromise on any point on the
aforesaid three aspects shall be made while
undertaking the investigation by the SIT, be
it a majority view or a minority view.
D) In the field of investigation, SIT
shall be at the liberty to take decision. If
any legal issue arises which the majority of
the members of SIT finds to be resolved, it
would be open to the SIT to seek legal
assistance of the amicus curiae by way of
opinion or otherwise.
E) We express the view that all members of
the SIT shall work with a team spirit in
order to realise faith which has been
reposed by the Court for investigation and
all sincere attempts shall be made, of
course within the bounds of law, to reach
the truth of the subject matter for which
the investigation has been so ordered. All
clues directly or indirectly touching to the
spirit of the order shall be investigated so
as to bring it to its logical end.
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(3) As we find that certain incidental
matter may arise while the SIT is
investigating into the matter, it would be
just and proper to direct the SIT to submit
the progress report every two months.
(4) It will be open to the SIT to intimate
the names of any officer or witnesses who
are to be interrogated or who may be the
witness in connection with the incident to
post them at a place where they are not
required to work under the higher officers
who are also directly or indirectly involved
in the incident and the State shall act
accordingly upon intimation so received from
SIT.
(5) S.O. to 08.04.2011 for reporting
progress and further order.”
10. The pertinent aspect is that this Court
observed that certain incidental matters might
arise while SIT is investigating into the matter
and, therefore, this Court found that it would
be just and proper to direct the SIT to submit a
progress report every two months.
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11. The matter further came to be considered on
8.4.2011 and having found that in spite of the
requisition made by SIT the concerned Police
Officers were not transferred by the State
Government, this Court passed the further order
as under :-
“1. The report submitted by Mr.Mohan Jha,
one of the Members of the SIT is considered.
The pertinent aspect is that in spite of the
earlier direction given by this Court in the
order dated 28.1.2011 at paragraph 4 of the
said order, requisition was made by SIT for
transfer of certain police officers and as
per the said report, Mr.P.P. Pandey, Mr.G.L.
Singhal and Mr.Tarun Barot have not been
transferred so far.
2. We may record as per the order dated
28.1.2011 at para 4, it was ordered thus:-
“4.It also appears from the counter
affidavit filed by Mr.Satish Verma, one of
the member of SIT that there are differences
of opinion amongst the members of SIT, may
be on account of no hierarchy formed in the
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order passed by this Court or mode expressly
not provided for resolving the difference of
opinion. It also appears that as per one of
the member of SIT, Mr. Satish Verma, when he
wanted to investigate certain aspects, the
view was expressed by the other members that
unless the issue is discussed and
unanimously resolved, the investigation may
not be made in this regard. Such has
resulted into the present matter. “
3. Under these circumstances, the
aforesaid officers as requisitioned by SIT
shall be posted at different places by way
of transfer so as to have the smooth
functioning of SIT and the aforesaid
directions shall be complied with within one
week.
4. It further appears from the report that
the investigation by the SIT is not very
satisfactory. The Chairman of SIT, Mr.Karnal
Singh appears to be available only on few
days, may be on account of his assignment at
different places. Similarly for Mr.Jha and
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Mr.Satish Verma, there is no separate
reports prepared for the action taken by
each of them. If the progress is to be
considered in toto, we find that it is not
up to the expectation of the Court of the
investigation well in time.
5. Hence, with a view to ensure that the
investigation is geared up and properly
channelized so as to unearth the truth at
the earliest, we direct that each Member of
SIT shall submit separate report about the
contribution made by him in the functioning
of SIT. Such report shall be submitted in
the sealed cover. In addition to the above,
as the present report is not found to be
satisfactory, a fresh report shall be
submitted by incorporating the gist of the
investigation, if any, made, including after
referring to the statement of the key-
witnesses on the aspects about the
genuineness of the encounter or otherwise.
6. It was reported that some complaints
were filed against one of the Members of the
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SIT, Mr.Satish Verma, who in furtherance to
the investigation, had seized certain
records of FSL and others. As such when the
Members of the SIT are acting under the
directions of this Court any complaint
against the functioning of any Member in the
course of such investigation is required to
be reported to this Court and no attempt
should be made for creating any hindrance or
obstruction in the investigation, may be by
way of the decision of the majority of the
Members of SIT or even minority view through
any single Member of SIT.
7. It is hardly required to be stated that
the complaint being C.R. No.8/2004 dated
15.6.2009 is already registered with DCB
Police Station, Ahmedabad City and,
therefore, when the Investigation is
transferred to SIT, including the Members of
SIT, they would be for all purpose
functioning in connection with the said FIR
for further investigation as per the
provisions of Code of Criminal Procedure
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read with the orders of this Court.
8. Hence, no impediment or obstruction
shall be created by anyone in the
investigation to be made by SIT or its
Members, may be minority view or majority
view, if the attempt is to get all clues
investigated for reach the truth.
9. All the aforesaid reports shall be
submitted on or before 20.4.2011 at 2.30
p.m. S.O. to 21.4.2011 at 4 p.m.
10. The aforesaid direction qua transfer of
the officials shall be communicated by the
learned Advocate General.
11. Office to supply copy of the petition
and the order as required by Mr.Lakhani, who
has been appointed as Amicus Curiae.”
(Emphasis supplied)
12. The pertinent aspect is that this Court
found that the investigation by SIT was not
satisfactory and in order to gear up the
functioning of the SIT and to channelize the
functioning to unearth the truth at the
earliest, each member of the SIT was directed
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to submit separate report about the
contribution made by him in the functioning
of SIT and it was also observed that attempt
should be made not to create any hindrance or
obstruction in the investigation, might be by
way of decision by the Members of the SIT, or
even made by any single member of the SIT.
It was also observed that all attempts should
be made to get all clues including, might be
by minority or majority, so as to reach the
truth and the direction was also given for
communication of the order for transferring
of the State Police Officers through Advocate
General.
13. The matter further came to be considered
by this Court on 21.4.2011 and it was found
that Mr.Karnal Singh, Chairman of SIT was
posted at Mizoram and he had shown his
inability to continue with the present
assignment. Therefore, Mr.Karnal Singh was
allowed to be relieved as Chairman of SIT,
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but since it was noticed that there were
differences of opinion in the mode and manner
of investigation, the duties amongst the
Members were demarcated. Further, as the
transfer was not affected in spite of the
requisition made by the SIT, this Court also
found that there was non-compliance of the
order passed by this Court by the State
Government and, therefore, called upon the
concerned Officer to submit reply and
explanation before concluding on the aspect
whether action should be initiated under the
Contempt of Courts Act or not. The matter
was considered and the following order was
passed on 21.4.2011:-
“1. As per the order dated 08.04.2011
passed by this Court, all the reports have
been submitted. We have gone through the
reports and have considered the contents
thereof. Since the investigation is at a
crucial stage, we find that the contents of
the reports are not required to be recorded
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since to do so would prejudice the
investigation.
2. However, three pertinent aspects are
required to be recorded qua each member of
SIT. One is that Mr. Karnail Singh, Chairman
of the SIT, who has been posted at Mizoram,
has shown his inability to continue with the
present assignment. We have gone through his
report and we find that the difficulty being
faced by him appears to be genuine. Of
course, he has also stated other aspects in
the report which, if required, shall be
considered at a later stage. Under these
circumstances, we allow Mr.Karnail Singh to
be relieved as Chairman of SIT. Since we may
be required to induct another member as SIT
who may be the Chairman, or otherwise, as
per his seniority in the IPS cadre, we keep
that aspect open. It is directed that the
Union of India, through Mr.P.S. Champaneri,
on the next date, shall communicate names of
other officers who may be spared for
inclusion in the present SIT.
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3. The second aspect is that on account of
the non- availability of the Chairman, SIT
shall now comprise of two members, namely,
Mr.Mohan Jha and Mr. Satish Verma.
4. We have seen the individual report of
both the members and we find that there are
various differences of opinion in the mode
and manner of investigation. Further, we
have seen from the report that if there is
no separate demarcation of duties, it may
hamper the smooth investigation. Therefore,
we find it proper to demarcate the duties of
both the members of SIT. However, it is
clarified that the demarcation of duties by
this Court may not be taken to mean that
there is a perception that any officer is
either working properly or not working
properly. However, demarcation of duties is
essential with a view to streamline the
investigation without any impediment
therein.
5. We have heard both the members of the
SIT. Considering the facts and circumstances
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and having gone through the reports
submitted by the members of SIT including
Chairman, Mr. Karnail Singh, we find that
the investigation through SIT shall be
looked after in the following manner:
(1) Mr.Mohan Jha shall look after the
administrative work being member of SIT.
(2) Mr.Satish Verma shall look after the
actual and further investigation of the case
which is already stated vide order dated
08.04.2011 at paragraph no.7, i.e.,
pertaining to complaint being C.R.No.8/04
dated 05.06.2004 registered with DCB Police
Station, Ahmedabad.
6. Hence, SIT shall work accordingly.
7. It was submitted by Mr.Lakhani, amicus
curiae on behalf of SIT that since no
officer of the rank of SP/DIG level is
available, it would help the member of SIT
to further investigate the matter if such an
officer is spared by the State Police
Department. We leave it to the discretion
and decision of the member of SIT who has
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been assigned with the work of
investigation. If he finds it proper, he may
requisition the officer of his choice who is
not connected with the incident directly or
indirectly. Upon the requisition being made
by him, the State Government shall spare
that officer for assisting the member of SIT
for investigation.
8. It has been further stated that the
report of the Central Forensic Laboratory as
well as AIIMS may take some time,
approximately four weeks. An attempt shall
be made by requisitioning both the
authorities to submit the reports earlier,
preferably within a period of two weeks, if
possible. The order of this Court shall be
communicated to the Central Forensic
Laboratory as well as AIIMS.
9. Another aspect which we need to record
is that when we passed the order dated
08.04.2011, it was already mentioned that
SIT had requisitioned transfer of certain
officers including Mr.P.P. Pandey, Mr.G.L.
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Singhal and Mr.Tarun Barot pursuant to our
order dated 28.01.2011. In spite of the
requisition made by SIT, the said officers
were not transferred by the State
Government. There are certain materials
which, prima facie, suggest that this has
affected the investigation. Not only that,
after the order dated 08.04.2011 was passed
by this Court, the State Government was
required to take immediate action. In spite
of the same, the said officers have been
transferred on 19.04.2011, just one day
prior to the date on which the reports were
to be submitted. The pertinent aspect is
that at para 3 of the order dated
08.04.2011, it is clearly stated that the
directions were to be complied with within
one week. However, it prima facie appears
that until the visit of the members of the
Central Forensic Laboratory and team of
AIIMS, the transfer orders were not passed.
Prima facie, the said action on the part of
the State, in spite of the specific
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direction by this Court, can be said to be
in breach and non-compliance of the
direction of this Court. However, upon the
inquiry further made by the Court, it has
been reported by the learned Advocate
General that Mr.Balwant Singh, Additional
Chief Secretary, Home Department, is the
authority who had to comply with the
direction. Hence, before we prima facie
conclude on the aspect as to whether it is a
case for initiation of action under the
Contempt of Courts Act for breach and non-
compliance to the order of this Court, an
opportunity may be given to the said officer
to submit his reply and explanation, if any,
and thereafter, appropriate action may be
initiated, if required. Hence, we direct
Mr.Balwant Singh, Additional Chief
Secretary, Home Department to submit a reply
and explanation, if any, as to why
proceedings under the Contempt of Courts Act
should not be initiated for committing
alleged breach and non-compliance of the
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directions issued by this Court for
transferring certain police officers as
requisitioned by SIT, pursuant to the order
passed by this Court. Such explanation shall
be submitted on, or before, 11.05.2011.
10. It has been submitted on behalf of the
SIT that NIA has been requested to supply
certain details which, in spite of
reminders, have not been supplied to the
SIT.
11. Hence, we direct that NIA shall supply
the requisite details as desired by SIT
within two weeks. Mr.Champaneri, learned
Assistant Solicitor General has agreed to
communicate the order to the NIA.
Mr.Champaneri has submitted that whatever
information is available will be supplied if
there is no legal impediment, and if there
is any legal impediment, the same shall be
reported to this Court, on the next date.
12. Mr.Saiyed appearing on behalf of
Shamima Kausar wanted to tender an affidavit
claiming to contain certain factual
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narrations of events that transpired at the
office of SIT, when the complaint was
tendered by Shamima Kausar.
13. We find that the said aspect need not
be looked into at this stage. If she is so
desirous, the same may be submitted to the
SIT who shall look into the matter, in
accordance with law.
14. S.O. to 12.05.2011 at 2.30 p.m.
Mr.Champaneri shall submit the names of the
suggested officers on that day.
15. Before parting with this order, we may
observe that the work which has been
undertaken by Mr.Karnail Singh as Chairman
of SIT, as transpires from his individual
report, is found to be satisfactory by us
and we record a sense of appreciation.
16. The reports submitted by the members of
SIT shall be kept in a sealed cover, in the
safe custody of the Registrar General.”
(Emphasis supplied)
14. It appears that thereafter on 12.5.2011,
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the matter once again came up for
consideration and upon the name suggested by
the Union of India for the Chairman of SIT in
place of Mr.Karnal Singh, this Court
reconstituted the SIT and passed the
following order, the relevant of which reads
from paragraph 4 onwards:-
“4. Mr.Sinha has left the matter to the
Court, whereas on behalf of the State of
Gujarat, some reservation was shown for
officer at Sr. No.3, Shri Rajesh Ranjan. As
the choice and options are available, we
find that we need not go into the aspects of
reservation expressed on behalf of the
State. Dr. Satyapal Singh, even amongst the
officers nominated is the Senior Most
Officer and he is, in any case, senior to
the remaining both the members of SIT.
Hence, we find that Dr. Satyapal Singh, IPS
(MH:80) can be nominated as the Chairman of
SIT. Consequently, SIT now shall comprising
of the members as under:-
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(a) Dr. Satyapal Singh, IPS (MH:80) shall be
the Chairman of SIT
(b) Mr.Mohan Jha, IPS – Member of SIT
(c) Mr.Satish Verma, IPS – Member of SIT
5. In view of the full-fledged
constitution of SIT, the functioning of SIT
shall now be as per the order dated
28.1.2011, vide paragraph 5 and the detailed
direction given therein, save and except
that in place of Mr.Karnal Singh, IPS as the
Chairman, Dr. Satyapal Singh, IPS shall be
the Chairman. Hence, ordered accordingly. It
is observed that in view of the aforesaid
direction now bifurcation of the work as
specified vide order dated 21.4.2011 as per
para 5 and 6 would no more survive. The
State shall issue necessary Notification for
such purpose within one week. SIT shall
further investigate into the matter and
submit the report on or before 23.6.011 in a
sealed cover. The report shall be submitted
to the Registrar (Judicial), High Court of
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Gujarat.
6. As per the above referred order dated
21.4.2011, it appears that the affidavit has
been filed by Mr.Balwant Singh, IAS,
Additional Chief Secretary, Home Department.
We may observe that the affidavit is not
with the details about the role played at
every level by the concerned officer from
the date on which the requisition was
received from SIT until the sanction for
transfer order was granted by the State
Government. We may record that unless and
until date-wise details with the role played
by the officer concerned for pursuing the
matter or not pursuing the matter with the
name of the officer concerned is given, it
may be difficult for the Court to hold the
responsibility, if such question arises in
future under the Contempt of Courts Act.
Further in absence thereof it cannot be
termed as sufficient explanation. We would
have directed the said Officer to file the
affidavit, however, on his behalf
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Mr.Trivedi, learned Advocate General has
stated that such affidavit shall be filed on
or before 23.6.2011. Hence, we direct that
the said affidavit with the aforesaid shall
accordingly be filed before this Court on or
before 23.6.2011.
7. It was next contended by the learned
Advocate General on behalf of the State by
tendering the affidavit of Shri Rahul Gupta,
IAS working as the Deputy Secretary, Home
Department, stating that the State has
formed the monitoring authority to be looked
after for the functioning of the Special
Task Force in all encounter matters and it
was submitted that as now SIT could not
function effectively, the investigation be
handed over to Special Task Force working
under the monitoring authority by this Court
for the alleged incident of encounter in
question.
8. We are unable to appreciate such a
stand on the part of the State, more
particularly when the said aspect was
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already considered by us in the order dated
24.9.2010 in Criminal Misc. Application
No.9832 of 2010, which has been disposed of
and the SIT was constituted vide the said
order. We may record that similar arguments
and contentions were raised when we
considered the aspects of reconstitution of
SIT vide order dated 24.9.2010 in Criminal
Misc. Application No.9832 of 2010. It was
observed by the Court at para 17 to 20,
which reads as under:-
“17. After the aforesaid exercise was
completed but before this Court proceeded to
pass the order for constitution of new SIT
by including the names of the officers which
this Court may find proper, the learned
Advocate General pressed into service, the
affidavit dated 20th September, 2010, filed
by Mr.Rahul Gupta, Deputy Secretary of the
Home Department, contending that the State
Government has issued a Notification dated
16.09.2010 for constitution of Monitoring
Authority and Special Task Force for
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investigation of the police encounter deaths
and it was also submitted that the Chairman
of the Monitoring Authority may be a retired
Honourable Judge of the Supreme Court of
India or a retired Honourable Judge of the
High Court of Gujarat.
18. It may also be recorded that in
Paragraph-8 of the affidavit, it has been
stated on behalf of the State Government as
under:
“8. I respectfully say and submit that under
the circumstances, while respectfully
reserving my liberty to press for the
reliefs prayed for in the Special Criminal
Application filed by the State of Gujarat
and reiterating the prayer that in view of
the changed circumstances, that is to say,
SIT of riot cases having expressed its
inability, this Honourable Court may be
pleased to permit the Special Investigation
Team, constituted by this Honourable Court
earlier, to complete the investigation under
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the monitoring authority, as contemplated
vide notification dated 16/9/2010 or the
investigation in question may be ordered to
be completed by the Special Task Force
contemplated vide same notification dated
16/9/2010 under the monitoring of the said
Monitoring Authority. In the respectful
submission of the State, the said course of
action would not only instill confidence and
credibility in the investigation, but would
result into a complete justice to all the
parties rather than constituting an agency
having officers of different police forces
since such a course of action has an inbuilt
risk of inevitable confusion in the
investigation for various reasons.”
19. When the learned Advocate General
Mr.Trivedi was called upon to clarify the
stand of the State Government on the aspects
of constitution of new SIT by this Court, it
was declared by the learned Advocate General
that the attempt on the part of the State
Government is by way of a suggestion that
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the investigation may be assigned to the
Special Task Force who is to work under the
Monitoring Authority instead of new SIT
comprising of the other officers who, in the
submission of the learned Advocate General,
could be officers from outside Gujarat
State. It was submitted that there is no
attempt on the part of the State to nullify
the effect of the judgment of this Court but
the Notification for constitution of Special
Task Force may be considered as one of the
options available to the Court instead of
constituting a new SIT. He also submitted
that prior to the Notification dated
16th September, 2010, for constitution of
Special Task Force and Monitoring Authority,
the Government has already given the names
of the officers reserving its rights and
contentions in the SLP pending before the
Apex Court. Therefore, it was submitted that
the said aspects may be considered before
passing further order.
20. It is hardly required to be stated that
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a judgment or order of the High Court in
exercise of the power under Article 226 of
the Constitution cannot be nullified by any
executive action of the Government, be it a
policy matter or constitution of a Special
Task Force or the constitution of the
Monitoring Authority, or otherwise.
Therefore, once this Court having recorded
the findings for constitution of a SIT
having a particular character and
composition, such decision on the part of
the State can hardly be considered as a
valid ground to recall the observations made
for constitution of SIT, thereby instilling
confidence and credibility to the
investigation. Under these circumstances,
based on the Notification, such suggestion
cannot be accepted. Further, when this Court
has already ruled for inclusion of certain
officers in the SIT, unwillingness on the
part of the State for induction of any
officer of IPS cadre from outside the State
can neither be countenanced nor endorsed. We
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may record that the Constitution provides
the competence of any State or the Union or
any constitutional authority, including the
judiciary, for protection of the rights of
citizens and controls the exercise of power
by any executive. In a Federal structure
which prevails in our nation, once this
Court has exercised the power under Article
226 of the Constitution, and has ruled for
assigning the investigation to a broad-based
SIT, such reservations expressed on behalf
of the State cannot be countenanced by this
Court. The aforesaid is coupled with the
circumstance that State has not filed any
review application for recalling of the
order. Further, even if the State, for the
reasons best known to it, is desirous of
constituting the Special Task Force or a
Monitoring Authority, it may be made
applicable to other cases, namely, encounter
cases other than the one considered and
examined by this Court in exercise of the
power under Article 226 of the Constitution.
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Further, if such aspect is considered, it
may also indirectly dilute the observations
made by this Court in the judgment and also
by the Apex Court, permitting the High Court
to constitute a new SIT. Hence, we find that
such ground should not operate as a bar or
by way of a second thought for non-
constitution of the SIT and the assignment
of investigation to it.”
9. The pertinent aspect is that when this
Court expressly ruled that by executive
action the judgement or the order of the
High Court in exercise of the power under
Article 226 of the Constitution of India
cannot be nullified, be it policy matter or
be it constitution of Special Task Force or
constitution of monitoring authority or
otherwise and when it was further observed
that even if the State for the reasons best
known to it, is desirous to constitute
Special Task Force or monitoring authority,
it may be made applicable to other cases
namely; the encounter cases other than the
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one considered and examined by this Court in
exercise of the power under Article 226 of
the Constitution of India, there was
absolutely no necessity on the part of the
State or its Officer to file such an
affidavit. The another aspect is that the
aforesaid order dated 24.9.2010, whereby the
aforesaid contentions were negatived and SIT
was constituted, was carried before the Apex
Court and no interference has been made.
Under these circumstances, the approach on
the part of the State to re-agitate
the question of transferring the
investigation to the Special Task Force can
hardly be canvassed and we deprecate the
same. In all fairness, it was expected for
the State to wait till induction of the
Chairman of SIT, who may be officer from the
Central Government and the submission could
have been made thereafter, but it appears
that the stand of the State as was earlier,
which has been negated, is to see that the
investigation may be assigned to the Special
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Task Force. We leave the matter at that
stage, without observing further but the
fact remains that as per the above referred
direction issued by us, full-fledged SIT has
been constituted and, therefore, in any
case, there is no reason to take a different
view as sought to be canvassed.
10. We may only record that the SIT, which
is constituted shall be given all assistance
by the State Officers and any impediment in
the function of the SIT in any manner, shall
be reported to this Court.
11. We may also record that Shri Girish
Laxman Singhal and others have preferred SLP
(Cr.) No.9489 of 2011 before the Apex Court,
but vide order dated 11.5.2011, the Apex
Court has clarified that its earlier order
dated 3.5.2011 shall not preclude the High
Court from hearing the matter and to pass
appropriate orders. However, it is clarified
that the present order, in any case, shall
be subject to the order that may be passed
by the Apex Court in the aforesaid SLP.”
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(Emphasis supplied)
15. The matter came to be considered once
again on 24.6.2011 and at that stage Dr.
Satyapal Singh, the Chairman of SIT
(hereinafter referred to as the ‘Second SIT’
for the same of convenience) tendered a
letter expressing certain difficulties and
prayed that he might be relieved as the
Chairman of SIT and the Court had passed the
following orders:-
“1.The sealed cover report is considered. As
per the report we find that, there was some
delay on account of the non-relieving of the
officer Dr.Satyapal Singh by Maharashtra
Government and he could not take over the
charge, but it appears that thereafter,
investigation is in progress. The report
also shows that the further investigation
including the team of expert is to be
consulted and the report is to be received.
2. Hence, the matter could be considered
for granting time for submitting the
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progress report. However, we may record that
Dr.Satyapal Singh, Chairman who is
personally present has tendered letter dated
24.06.2011 through private advocate Mr.
Mihir Thakor with M/s. Singhi & Co., and has
expressed certain difficulties about the
language and also for interrogation of one
of the batch mate of him, viz., Mr.P.P.
Pandey. He has also shown reservation about
difference of opinion between other two
members of SIT and therefore, he has prayed
that he may be relieved as Chairman of SIT.
3. As such, it was required for the
Chairman of SIT to make such request
including the letter to the amicus curiae
Mr. Yogesh Lakhani who is already appointed
by the Court to assist SIT as and when
required including in the proceeding of this
Court. That apart, we may also record that
when this Court considered the matter for
appointment of the Chairman vide order dated
12.05.2011, the view of the Central
Government was taken into consideration and
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at para 2, it was observed as under:
“Pursuant to the earlier order, Mr.P.S.
Champaneri, learned Assistant Solicitor
General on behalf of the Central
Government has tendered the names of
three officers; (1) Dr. Satyapal Singh,
IPS (MH:80), (2) Shri J.V. Ramudu, IPS
(AP:81), and (3) Shri Rajesh Ranjan,
IPS (BH:84) and he declared before the
Court that as per the instructions
received by him from the Ministry of
Home Affairs, Government of India, any
officer so nominated by this Court will
devote full time for ensuring that the
investigation is completed at the
earliest.”
4. Thereafter, having taken into
consideration the assurance of the
Central Government and also the view of
the learned Assistant Solicitor
General, Dr. Satyapal Singh was
appointed as Chairman. It is hardly
required to be stated that the officer
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so nominated by the Central Government
working in the cadre of IPS though
their services might have been
allocated to the State, it is within
the power of the Central Government to
make them to discharge the duty which
the Court may assign after concurrence
or after considering the views of the
Central Government. In all fairness,
the said officer could have moved the
Central Government in this regard or
through the Assistant Solicitor General
also. Be as it may, when the aforesaid
is put to Mr.Champaneri, learned
Assistant Solicitor General, he stated
that at the relevant point of time, his
instructions were that Dr.Satyapal
Singh would be the proper officer to
ensure that the investigation is
completed at the earliest and that is
why, he made submission accordingly
before the Court. He also submitted
that in view of the aforesaid
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reservation shown by Dr.Satyapal Singh,
he would like to have the views of the
Central Government in this regard and
he seeks one week time.
5. Considering the progress report, we
find that as the team of experts is to
visit and in any case further
investigation by SIT should not be put
on the grinding halt. Central
Government shall clearly report to this
Court about the continuation of
Dr.Satyapal Singh or otherwise for
nomination of any other officer if it
is of the view that the said officer
should be permitted to be relieved.
6. The progress report shall be submitted
in sealed cover on 14.07.2011. S.O. to
15.07.2011.
7. It is further directed that the
investigation shall continue in the
meantime.
8. The sealed cover report shall be kept in
the safe custody of the Registrar
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(Judicial).” (Emphasis supplied)
16. Thereafter, on 15.7.2011, on behalf of the
union of India, it was prayed to exempt Dr.
Satyapal Singh from the SIT and the names of
other officers, including Mr.Ramdu were
offered. This Court passed the following
order for reconstituting SIT by appointing
Mr.J.V. Ramudu as the Chairman of SIT
(hereinafter referred to as the ‘Third SIT’
for the same of convenience) and the
following order was passed :-
“1. As per the last order dated 24-06-2011
SIT has submitted the Progress Report of the
Investigation. The said Report be kept in
the safe custody of the Registrar
(Judicial).
2. This court in the aforesaid order at para
5 had observed:
“Considering the progress report, we
find that as the team of experts is to
visit and in any case further
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investigation by SIT should not be put
on the grinding halt. Central
Government shall clearly report to this
Court about the continuation of
Dr.Satyapal Singh or otherwise for
nomination of any other officer if it
is of the view that the said officer
should be permitted to be relieved.”
3. Today, Mr.P.S.Champaneri, learned
Assistant Solicitor General has tendered the
communication dated 14-07-2011 received by
him from the Government of India, Ministry
of Home Affairs, conveying that Dr.Satyapal
Singh, IPS, may be exempted from the
membership of SIT, Gujarat, and in his
place, the Ministry has identified three
Officers, as below:
(1) Shri J.V.Ramudu, IPS (AP: 81)
(2) Shri Rajesh Ranjan, IPS (BH: 84)
(3) Shri R.C.Arora, IPS (MP: 79)
4. We have heard the learned counsel
appearing for the original petitioner as
well as learned Advocate General.
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Considering the facts and circumstances,
Dr.Satyapal Singh, IPS, is relieved as the
Chairman of SIT, in view of the aforesaid
communication from the Central Government.
5. The next aspect to be considered is to
make appointment of another Chairman in his
place. The name of Shri J.V.Ramudu, IPS (AP:
81) was already there in the earlier list
and he was the person next to Dr.Satyapal
Singh in the said list.
6. Mr.Champaneri, learned Assistant
Solicitor General has categorically made a
statement, upon telephonic instructions from
the Joint Secretary, who is signatory of the
letter dated 14-07-2011, that the consent of
the concerned State Government is taken by
the Central Government and even Officer
concerned has also been conveyed for that
purpose. The Central Government assures the
Court that if the appointment is made by
this Court, the said Officer shall take up
the duty immediately and will complete the
investigation as assigned to SIT.
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Mr.Champaneri, learned Assistant Solicitor
General, has also stated that so is the case
of Shri Rajesh Ranjan, IPS (BH: 84), but for
Shri R.C.Arora, IPS (MP: 79), consent of the
concerned State is yet to be received since
the correspondence is on.
7. Under the circumstances, we find that
Shri J.V.Ramudu, IPS (AP: 81) be appointed
as the Chairman of SIT, Gujarat. Hence,
ordered accordingly.
8. The State Government shall issue
necessary Notification in this regard on or
before 19-07-2011. The said officer shall
join the duty immediately upon the
publication of the Notification and continue
with the investigation in light of the
earlier orders passed by this Court.
9. As it has been stated on behalf of SIT,
that the Report from FSL, New Delhi, may
take some time, we find that the matter can
be posted after some time. In the meantime,
let the Reports be received from the experts
of FSL, New Delhi, as well as AIIMS, New
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Delhi, and the investigation be also
continued further. The progress Report shall
be submitted in the sealed cover, on or
before 04-08-2011.
10. S.O. to 05-08-2011 at 2:30 p.m.
11. It is observed that SIT shall ensure
that appropriate protection is extended to
the witnesses and if any requisition is made
by SIT to the State for providing extra
protection to the witnesses, the same shall
be made available by the State Government.”
17. Thereafter, Union of India filed an
application being Criminal Misc. Application
No.10244 of 2011, contending that Mr.Ramudu,
who was appointed as Chairman of SIT, would
not be in a position to take up the
assignment because of his ailment and,
therefore, the prayer was made to consider
the name of another officer to be the part of
SIT. The said application came to be
considered by this Court on 19.7.2011 and the
following order was passed :-
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“1. Leave to correct the name of
Mr.J.V.Ramudu in place of Dr. Satyapal Singh
on page 6 para 4 as well as leave to correct
the description of Mr.R.R. Verma, IPS as
(BH:81) and Mr.R.C.Arora, IPS as (MP : 79).
2. Rule. Mr.Lakhani for opponent No.1,
Mr.Mukul Sinha for opponent No.2 and
Ms.Sangeeta Vishen, learned APP for opponent
No.3 waive notice of Rule.
3. The present application is preferred by
the Union of India with a prayer to vary
and/or to modify the order dated 15.07.2011
passed by this Court in Criminal Misc.
Application No. 15981/10 so as to consider
the name of other officer to be a part of
the Special Investigation Team (“SIT” for
short).
4. We have heard Mr.Champaneri, learned
Assistant Solicitor General for the
applicant, Mr.Lakhani for SIT, Mr.Sinha for
opponent No.2 and Mr. Kamal Trivedi, learned
Advocate General with Mr.Prakash Jani,
learned PP with Ms.Sangeeta Vishen, learned
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APP for the State.
5. It appears that the assurance on behalf
of the Central Government was recorded by
this Court and this Court acted upon the
same, and thereafter order dated 15.07.2011
came to be passed whereby Mr. J.V. Ramudu,
IPS (AP: 81) was appointed as the Chairman
of SIT. When the application is moved, the
learned Advocate General has also tendered
the copy of the notification dated
18.07.2011 for reconstitution of SIT as it
was so directed by this Court to issue the
notification on or before 19.07.2011.
6. The circumstances as narrated in the
application at paragraph 4 reads as under:
“4. The applicant states and submits
that the applicant-Union of India is
compelled to bring certain developments
to the notice of the Hon'ble Court with
regard to the nomination of a member of
the SIT. The applicant states and
submits that the Chief Secretary, State
of Andhra Pradesh, on 18.07.2011 has
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conveyed to the applicant-Union of
India to the effect that, “Shri
J.V.Ramudu, IPS (AP: 81), M.O.S.
(Member of Service) has underwent a
rare and complex surgery for cardio-
maxilo facial surgery of the right
mandible at Naryana Hrudayalaya,
Bangalore on 12th May, 2011 and in view
of the serious nature of the surgery
and regular post operative checkups, he
was in Bangalore till 30th May, 2011.
Two such post-operative reviews have
been held during Mid-June and early
July, 2011 and there is a severe
limitation and his food intake as well
as speech due to resurrection of the
right mandible and that he is still
under severe pain. The DGP has,
therefore, requested to inform about
the inability of the MoS to serve on
the SIT on genuine medical grounds”.
In view of the aforesaid facts and
circumstances, the applicant-Union of
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India regrets the inconvenience caused
to this Hon'ble Court in selection of a
member of the SIT as new facts have now
come to the knowledge of the Government
which were not known earlier. The
applicant also states and submits that
in light of the delicate medical
condition of the nominated Officer
Dr.Satyapal Singh, IPS (AP: 80), the
applicant-Union of India submits that
under the given circumstances, the said
Officer may not be available to be a
part of SIT.”
7. We find that the officer Mr. J.V.
Ramudu because of physical ailment of
cardio-maxilo facial surgery, he is required
to undergo regular medical checkup and
therefore, the desire has been shown by the
Union of India to the effect that he will
not be in a position to take up the
assignment because he has limitation for
food intake as well as in speech and he
undergoes severe pain also for the said
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injury. Even otherwise also, if the officer
concerned has no inclination or zeal to work
as the Chairman of SIT, he will not be able
to bring about the result as expected by the
Court while ordering investigation through
SIT.
8. Under the circumstances, we find that
it would be a case to change the Chairman of
SIT, but subject to taking serious note of
the conduct and approach on the part of
Union of India as may be stated hereinafter.
9. Concerning to the appointment of the
new officer, the details have been given in
the application at para 5 (after correction
as permitted) as under:
(a) Shri R.R. Verma, IPS (BH : 78). The
Officer is on Central deputation since
10.02.2009 and currently posted as ADG,
CISF. He has expressed his willingness
to work as a member of SIT.
(b) Shri R.C. Arora, IPS (MP : 79).
Written concurrence of the officer and
from the DGP, Madhya Pradesh is
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available. Formal concurrence of the
State Government is awaited.
(c) Shri Vivek Dubey, IPS (AP: 81).
DGP, Andhra Pradesh, has telephonically
conveyed his concurrence for deputation
of the officer for this assignment. The
officer has also expressed his
willingness. A proposal is being sent
by DGP, AP to State Govt. in this
regard.”
10. We find that in past when the officer
of the IPS Cadre working in the respective
State Government was appointed, it has
created problem in functioning of SIT, may
be on account of non-availability of
concurrence of the State Government or for
the personal circumstances of the officer
concerned through which possibly Central
Government or the State Government concerned
are not in a position to prevail over so as
to enforce the duty cast upon him/them.
11. In our view, such is also a very
unhappy state of affairs. If the Union
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Government is unable to command the officer
when a mandate has been given by this Court,
it will never bring about the truth for
which the direction were issued by this
Court. We leave it at that stage on the said
aspect, but it appears to us to appoint an
officer who is directly working under the
Central Government not concerned with the
State Government so as to ensure that he
takes up the duty at the earliest and he
undertakes the work with full zeal and with
spirit with which he has to work as Chairman
of the SIT. It appears that out of the
aforesaid three officers, Mr.R.R. Verma, IPS
(BH : 78) has expressed his willingness to
work as member of SIT and the Central
Government has also shown willingness to
nominate him for the duty to be performed as
Chairman/member in the SIT.
12. Further, it appears that he is working
as an Additional D.G. under CISF, which is a
paramilitary force of the Union of India,
expected with more degree of discipline.
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13. Hence, Mr.R.R. Verma, IPS (BH : 78) is
appointed as the Chairman of the SIT in
place of Mr.J.V.Ramudu, IPS (AP: 81). The
necessary notification shall be issued by
the State Government on or before
22.07.2011. The said officer shall
immediately take over the duties within one
week thereafter and proceed with the
investigation as per the order passed
earlier.
14. The earlier order dated 15.07.2011 in
Criminal Misc.Application No.15981/10 shall
stand modified accordingly.
15. However, before parting with, we find
it proper to take serious note of the way in
which the officers were earlier nominated by
the Union of India and more particularly the
last nomination of Mr.J.V.Ramudu, IPS (AP :
81). We need not reproduce the assurance
given on behalf of the Central Government as
the same is already a part of the record of
the order dated 15.07.2011. But prima facie,
it appears that Mr. Champaneri, learned
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Assistant Solicitor General, acted on the
instructions received by him vide
communication dated 14.07.2011 which was
tendered to the Court at the relevant point
of time addressed by Joint Secretary to the
Government of India to Mr.Champaneri and as
recorded in paragraph 6 of the earlier order
dated 15.07.2011, before making statement,
the instructions were conveyed to
Mr.Champaneri telephonically by the Joint
Secretary, the very officer who is signatory
of the said communication Mr.Diptivilasa.
The another pertinent aspect is that in the
very communication dated 14.07.2011, at
paragraph 3, there is a note that the
communication has the approval of the
competent authority in this Ministry which
normally may be the Secretary, Ministry of
Home Affairs, Union of India.
16. If there is a casual approach
ultimately found by this Court or any
attempt to mislead this Court, it would
attract further serious action in this
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regard. We hardly need to record that the
sanctity of the proceedings and orders of
this Court are required to be respected by
one and all and the first it should come
from the Union of India which is a Union
Government. If the sanctity of the
proceedings before a constitutional court is
not maintained by the Union of India, it
would stake democratic structure itself of
the nation. In our prima facie view, in
order to see that nobody is allowed to have
foul play with the Court proceedings or any
callous or casual approach in the matter,
this Court will have no option but to
maintain the authority of the Court and
stern action may be called for.
17. However, before taking further decision
in this regard, we find it proper to give
opportunity to the Secretary, Ministry of
Home Affairs as well as the Joint Secretary,
Mr. Diptivilasa to submit their written
explanation separately with the documentary
proof thereof about the process of file
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stagewise and the vacuum if any during the
period in the said movement of the file and
the communications thereof. The Secretary,
Ministry of Home Affairs shall also in the
said affidavit report to this Court about
any remedial measure if the Government of
India is desirous to take.
18. Such explanations shall be submitted on
or before 05.08.2011.
19. S.O. to 05.08.2011 for further order.”
18. The relevant aspect is that, in place of
Mr.Ramudu, Mr.R.R. Verma was appointed as the
Chairman of the SIT and a new SIT was
constituted (hereinafter referred to as the
‘Fourth SIT’ for the same of convenience).
Further on account of the casual approach on
the part of the Union of India, an
explanation was ordered to be submitted,
before this Court to enable the Court to
further consider the matter, maintain the
authority of the Court and take stern action
in this regard.
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19. Gopinath Pillai – original petitioner of
Special Criminal Application No.1850 of 2010
had preferred the application being Criminal
Misc. Application No.10011 of 2011 for the
reliefs, inter alia, to remove Dr. Satyapal
Singh as Chairman of SIT and further to hold
an inquiry as to how the witnesses were
influenced to retract from their statements
and other reliefs regarding the progress of
the investigation, etc. The said application
came to be considered by this Court and the
following order was passed on 5.8.2011:-
1. The present application has been
preferred by the application – original
petitioner of Special Cri. Application
No.1850 of 2009 for seeking appropriate
directions, which shall be referred to
hereinafter.
2. We have hard Mr.Mukul Sinha, learned
Counsel appearing for the applicant,
Mr.Kamal Trivedi, learned Advocate
General with Mr.P.K. Jani, learned
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Government Pleader for the State and
Mr.Lakhani, learned Counsel for SIT. The
presence of CBI is not required at this
stage.
3. It appears that the first prayer for
removal of Dr. Satyapal Singh as Chairman
of SIT would no more survive on account
of the subsequent development vide order
passed by us in Criminal Misc.
Application No.15981 of 2010, whereby Dr.
Satyapal Singh has been relieved as
Chairman of SIT and Mr.R.R. Verma has
been appointed as the Chairman and he has
also taken over as the Chairman of SIT.
4. The second aspect, which has been pressed
in service is to direct the inquiry as to
how the witnesses were influenced to
retract their statements and the
appropriate action against the person(s)
concerned, who is responsible for
retracting of the statement of the
witnesses. The learned Counsel in support
of the said submission, has relied upon
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the statement made in the application at
paragraph 1.k and 1.l, which has been
stated as under:-
“(1.k) It is submitted that Shri Satish
Verma, IPS had filed a detailed
affidavit on 27.1.2011 in Criminal
Misc. Application No.15981 of 2010
pointing out several acts and omissions
on the part of the Chairman Shri
Karnail Singh as well as the other
Member Shri Mohan Jha, which were not
assisting him in the proper
investigation of the case. In paragraph
14.2, Shri Satish Verma has clearly
pointed out that one Motibhai Taljabhai
Desai had given statement that would be
severally damaging the FIR version of
the incident. In paragraph 16, it is
pointed out that there were
circumstances to indicate that Shri
Mohan Jha was connected with the
retraction statement by Motibhai
Taljabhai Desai and also the filing of
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the complaint against Shri Satish
Verma. Similarly, it is learnt that the
statements of other witnesses,
including one Police Driver, Shri Shiv
Singh, which were recorded by SIT, have
also been retracted later on. In a news
item published by the Times of India
dated 12.7.2011, it has been stated
that several witnesses have retracted
their statements. It would thus, appear
that taking advantage of the inaction
on the part of the Chairman, Shri
Satyapal Singh, the proposed accused
have been active in influencing and
coercing the witnesses to retract their
statements, which were implicated.
(1.l) In the aforesaid facts and
circumstances, an impression is created
in the mind of the applicant that the
investigation being conducted by SIT
till now has yielded no concrete result
and on the contrary, the conduct of the
two Chairmen have led to the deliberate
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delay in taking action. It also appears
that the investigation is being
systematically sabotaged by the
persons, who want to scuttle the
investigation. The systematic
retraction of statements of the
witnesses that would implicate the
police officers is being carried out by
the interested persons. In the facts
and circumstances, therefore, the
applicant has moved the present
application for reviewing the order
dated 12.5.2011 and modifying the same
to remove the Chairman Shri Satyapal
Singh from the Chairmanship of SIT and
appoint Shri Ramudu or any other Police
Officer, who can effectively conduct
the investigation.”
4.We find that there is considerable
substance in the aforesaid submissions
inasmuch as in the affidavit filed by
Mr.Satish Verma, one of the Members of
the SIT dated 27.1.2011 in Criminal Misc.
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Application No.15981 of 2010, it has been
stated at paragraph 5.3 as under:-
“5.3 I state that Shri Mohan Jha had
mentioned what he did(as quoted in para
10 of my note reproduced above) on
25th December, 2010 afternoon after he
had received a phone call. It is not
known to me who called him with that
input. The complaint of shri Moti Talja
Desai, Head Constable, was received
later in the evening by the applicant.
So it is clear that somebody who knew
about the complaint even before it was
given to the applicant had informed
Shri Mohan Jha about it. Earlier also,
when a subordinate officer, Shri FS
Pathan, DySP, was recording the
statement of Shri Raju Jeerawal at
Mehsana on 18thDecember, 2010, Shri
Mohan Jha had come to know about it
from somebody who was interested in
watching the investigation, and had
called up Shri Pathan to ask on whose
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instructions Raju Jeerawala had been
called.”
5.We may also record that at paragraph 5.4
he stated, thus, the relevant of which
reads as under:-
“5.4 I must elaborate that Shri Moti
Talji Desai, Head Constable, was
examined by all the three officers of
the SIT in the Senior Police officers
Mess, Duffnala, Shahibaug on
22nd December, 2010 from approximately
2210 to 2250 hrs. This witness was
specifically told by the applicant that
he is not being promised anything, and
that whatever he says may also make him
liable. Thereafter, the witness had
made all the disclosures. A Police
Inspector of Delhi named Shri Sunil
Mittal, who was brought along by the
applicant, was also present. Then the
applicant and Shri Mohan Jha had left
after telling me that his statement may
be recorded. I had done that from 2300
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hrs to 0150 hrs of 23rd December, 2010
and then video recorded the witness
reading his statement and confirming it
to be a true record of what he stated.
I specifically add that the gist of
that statement is nothing but what the
witness had said in the presence of the
applicant and Shri Mohan Jha. ...”
6.The other part may not be relevant at
this stage.
7.We take serious note that two important
aspects; one is the statement made by the
witnesses Mr.Moti Talji Desai and
Shivsingh and others, who are the
important witnesses for the issue
involved in the matter. It is hardly
required to be stated that once the
statement is made by any person before a
police officer in the investigation and
thereafter if the retraction is to be
made in normal course, it is to be in the
Court. If subsequent statement is made
before the very police officer or an
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officer successor in office, at least one
statement goes wrong or rather would be
false and can be stated as misleading to
a Government Officer and also to some
extent, it can also be said to assist or
help the accused to get away from the
clutches of law. In such circumstances,
it would also be an offence under IPC and
other relevant provisions. As we can
notice that two Members of SIT namely;
Shri Satish Verma, had recorded the
statement and thereafter an allegation
has been made against Shri Mohan Jha for
playing role in helping the retraction of
the statement or at least helping the
witnesses to back out from the statement,
we find that the Chairman of SIT, Mr.R.R.
Verma himself should investigate the said
aspect. During the course of the
investigation, it will be for the
Chairman of SIT to find out whether any
person has played any role in maneuvering
the witness or helped him to get the
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statement retracted and thereby to
frustrate a valuable piece of evidence of
the investigation or not. While
undertaking the said investigation, the
Chairman of SIT will be at liberty to
interrogate, including, if required,
after arrest, custodial interrogation of
the person concerned. He will be at
liberty to take help of the officer of
his choice for investigation and be it
mentioned that none of the other Members
of SIT shall be involved in such
investigation, but with a note of
caution, that if he finds any serious
material against any of the Members of
the SIT having played any role in the
aforesaid episode, he shall not take any
action against the said member, but shall
submit a report in sealed cover to this
Court for such purpose.
8.As we have recorded earlier, there was a
rift between the two Members of SIT
namely; Shri Mohan Jha and Shri Satish
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Verma. We have in our earlier order with
a view to see that SIT functions with all
discipline as expected for a Police
Force, stated that the functioning and
discipline of the SIT shall be in the
manner as stated in sub-paragraph (2) of
paragraph 5 of the order dated 28.1.2011
in Criminal Misc. Application No.15981 of
2010, save and except that the Chairman
of SIT now is different. We have also
considered the subsequent report tendered
in sealed cover of individual members of
SIT and the Chairman of SIT when SIT was
comprising of Shri Karnal Singh being the
Chairman, Mr.Mohan Jha and Mr.Satish
Verma being Members. In those reports
also, we find that there was substantial
disagreement between the two Members of
SIT namely; Shri Mohan Jha and Shri
Satish Verma. We may not deal with the
contents in detail, since the conclusion
on the aspects as to whether the
encounter was genuine or fake is yet to
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be arrived at, but the aforesaid facts at
least lead us to assign more power and
duties upon the Chairman of SIT, who is
an Officer of the Central Government from
a Paramilitary Force. Hence, we modify
the earlier order and direct the
functioning of the SIT as under:-
(a) The Chairman of SIT will be the
sole officer to finally decide about
the investigation to be carried out
either by himself or through an officer
whom he may find it proper to get the
issue investigated. The other members
of SIT will have right to express the
opinion, but it will be for the
Chairman to ultimately take final
decision in the matter. We may clarify
that such investigation shall be on the
aspects other than referred to herein
above for the episode of recording the
statements of aforesaid witnesses and
retraction thereof by them.
(b) The Chairman of SIT will have right
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to decide the mode and manner of
investigation, the mode and manner for
taking help of the State machinery or
any other Governmental Authority, but
as observed earlier, the Members shall
be at liberty to express the views but
the final decision shall be taken by
the Chairman.
(c) The Chairman of SIT shall submit
report in a sealed cover of the further
investigation. He may record different
views, if any, of the other members on
the aspects, if touching to the
issue(s) involved.
(d) The Chairman of SIT shall be at
liberty to take help of Amicus Curiae
in the event of any complication in law
or guidance on the legal aspect is
required.
9.The aforesaid shall be the manner and
method of further functioning by SIT. As
the report of the experts namely; AIMS
and Central Forensic Laboratory is yet to
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be received and as new Chairman has taken
over recently, we find that the
investigation on the above referred
aspect would take some time, we,
therefore, find it proper to give time up
to 7th September, 2011. By this time,
sincere and full efforts shall be made by
SIT to complete the investigation and the
report shall be submitted in a sealed
cover on 8thSeptember, 2011 about the
progress and, the conclusion of the
investigation, if any.
10.We may record for the purpose of
clarification that during the course of
investigation, if the officer so finds it
proper, he shall have all powers as
available with the Investigating Officer
under Cr.P.C., including for of making
search, seizure, arrest etc., in
accordance with law.
11.It appears that in view of the
aforesaid direction, the prayer D of the
application for submission of separate
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report is not called for at this stage.
Further, as the aspects of genuineness of
the encounter or fake is yet to be
finalized, the prayer for filing of
separate and independent FIR is not
granted at this stage.
12.The application is disposed of
accordingly. The copy of this order shall
be kept in the proceedings of Criminal
Misc. Application No.15981 of 2010.”
20. The present matter thereafter once again
came to be considered on 9.9.2011 and this
Court after pursuing the report of SIT in a
sealed cover found it proper to issue
following directions, the relevant of which
reads as under:-
“2. Considering the contents of the
Reports, we find it proper to issue the
following directions:
(I) The State Police officers who are
directly or indirectly connected with the
functioning of SIT shall not be transferred
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outside Ahmedabad until the work of SIT is
completed. One officer Shri Mistri, who is
stated to have been transferred outside
Ahmedabad, shall be re-posted in Ahmedabad
and shall not be transferred thereafter
until the work of SIT is completed. The
State shall carry out the aforesaid
direction.
(II) The Central Government officers, who
have been requisitioned by the Chairman of
SIT, shall join the duty at the earliest and
all cooperation shall be rendered by the
Central Government as and when it is so
desired by the Chairman of SIT.
(III) The Board of Experts, to whom the
queries have been raised after receipt of
the Report by the Chairman of SIT shall, at
the earliest, reply and forward their
responses to the SIT within a period of two
weeks. It will be open to the Chairman of
SIT to communicate the order to the Board of
Experts.
(IV) Further action, if any required, shall
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also be undertaken by the Chairman of SIT
and the same shall be completed preferably
within two weeks thereafter.
3. Attempt shall be made to submit Report
on the aspect of genuineness of the
encounter, or otherwise, so as to order
further action, and the Report shall be
submitted on or before 05.10.2011.
4. S.O. to 07.10.2011 at 2:30 p.m. for
further orders.”
21. Again the progress report was submitted
on 7.10.2011 and this Court passed the
following order:-
“1. The progress report of investigation is
submitted by SIT. As per the report, certain
further queries are put to the Board of
Experts and there is likelihood of
discussion before the end of this month. It
further appears that 'psycho analysis' test
is also to be conducted on the witnesses,
who have retracted from their statements.
2. Under these circumstances, we direct
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that all such procedures be completed on or
before 11.11.2011. Thereafter, all material
will be considered by the SIT and the report
shall be submitted on or before
18.11.2011. S. O. to 21.11.2011 at 2.30 p.m.
The report submitted by the SIT be kept in a
sealed cover in the safe custody by the
Registrar (Judicial), Gujarat High Court.”
22.Thereafter, the said report (8th) has been
submitted on 18.11.2011 by the SIT and the
unanimous conclusion of SIT is as under:-
(I) The materials on record do not support
the facts and circumstances mentioned
in the FIR.
(II) Analyses of the circumstances and the
scientific evidence as detailed in the
foregoing chapters, indicate that the
incident as projected to have had
happened on 15.6.2004, does not conform
to the ingredients of a real police
encounter, in order to justify the
killings while exercising the right of
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self-defense and, therefore, the
genuineness of the police encounter as
tried to be brought out in the FIR, is
quite suspect and lacks credibility,
suggesting that the encounter was not a
genuine one.”
23. We may state that the final report, which
is the eighth progress report, concluding the
aforesaid comprises of 63 pages and 11
annexures, but as the disclosure of the
material therein at this stage may affect the
investigation thereafter, to be undertaken in
accordance with law, we have found it proper
not to reproduce or refer to the findings on
each point by the SIT. We only state that
the detailed investigation and the report as
submitted by the SIT in its final (8th)
progress report goes to suggest that the
encounter was not genuine.
24. In view of the aforesaid facts and
circumstances, as further directions in this
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regard are called for to the SIT and further
to put the law into motion, so as to reach
its logical end, we have heard the learned
Counsel appearing for the parties on the
aspect of registration of another/fresh FIR
and also on the aspect of which Agency should
be entrusted with the investigation thereof,
namely; whether (a) State Agency; or (b) SIT
itself; or (c) NIA; or (d) CBI.
25. We have heard Mr.I.H. Sayed, learned
Counsel for Samima Kausar – the petitioner of
Special Criminal Application No.822 of 2004,
Mr.Mukul Sinha, learned Counsel for Gopinath
Pillai – original petitioner of Special
Criminal Application No.1850 of 2009,
Mr.Yogesh Lakhani, learned Amicus Curiae
appointed by the Court for SIT, Mr.Kamal
Trivedi, learned Advocate General with
Mr.Prakash Jani, learned Public Prosecutor
assisted by Ms.Sangeeta Vishen, learned APP
and Mr.P.S. Champaneri, learned Assistant
Solicitor General on behalf of the Union of
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India.
ANOTHER/FRESH FIR
26. The first aspect that deserves to be
considered is that of the registration of
another/fresh FIR in view of the conclusion
arrived at by the SIT unanimously, in its
final (8th) report.
27. Before we proceed to examine the factual
aspects, we may first refer to the law on the
subject. In case of Upkar Singh vs. reported
in 2004(13) SCC, 292, the Apex Court had an
occasion to consider the aspect for
registration/filing of another/fresh FIR and
at paragraph 17, it was observed as under:-
“17. It is clear from the words
emphasized hereinabove in the above
quotation, this Court in the case of
T.T. Antony vs. State of Kerala &
Ors. has not excluded the registration
of a complaint in the nature of a
counter case from the purview of the
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Code. In our opinion, this Court in
that case only held any further
complaint by the same complainant or
others against the same accused,
subsequent to the registration of a
case, is prohibited under the Code
because an investigation in this
regard would have already started and
further complaint against the same
accused will amount an improvement on
the facts mentioned in the original
complaint, hence will be prohibited
under Section 162 of the Code. This
prohibition noticed by this Court, in
our opinion, does not apply to counter
complaint by the accused in the 1st
complaint or on his behalf alleging
a different version of the said
incident.”
28. Thereafter, in the case of Nirmal Singh
Kahlon v State of Punjab and Anr., reported
in (2009) 1 SCC, 441, the second FIR was
lodged by the CBI on a wider canvas based on
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the primary inquiry conducted by the CBI and
after having collected large number of
materials and recording of the statements.
The earlier FIR contained certain misdeeds of
the individuals and there was no clear
reference to the commission of the crime by
the office-bearers of the Panchayat in the
selection process and the aspect came up for
consideration before the Apex Court
incidentally was for examining the
maintainability of the second FIR. It was
observed by the Apex Court at paragraph 67 as
under:-
“67. The second FIR, in our opinion, would
be maintainable not only because there were
different versions but when new discovery is
made on factual foundations. Discoveries may
be made by the police authorities at a
subsequent stage. Discovery about a larger
conspiracy can also surface in another
proceeding, as for example, in a case of
this nature. If the police authorities did
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not make a fair investigation and left out
conspiracy aspect of the matter from the
purview of its investigation, in our
opinion, as and when the same surfaced, it
was open to the State and/ or the High Court
to direct investigation in respect of an
offence which is distinct and separate from
the one for which the FIR had already been
lodged.”
29. The question once again came up for
consideration before the Apex Court in the
case of Rubabbuddin Sheikh v. State of
Gujarat and Others, reported in (2010) 2 SCC,
200, wherein the facts could now be said as
similar to the facts in the present case , as
may be stated by us hereinafter and the same
can be traced at paragraph 1 of the said
decision, which reads as under:-
“1. Acting on a letter written by the writ
petitioner, Rubabbuddin Sheikh, to the Chief
Justice of India about the killing of his
brother, Sohrabuddin Sheikh in a fake
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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 forwarded the letter
to the Director General of Police , Gujarat
to take action. This letter of the Registry
of this Court was issued on 21.1.2007 (sic
21.1.2006). After about six months and
after several reminders, the Director
General of Police, Gujarat, directed Ms.
Geetha Johri, Inspector General of Police
(Crime), to inquire about the facts stated
in the letter. A case was registered as
Enquiry No.66 of 206. From 11.9.2006 to
22.1.2007 four interim reports were
submitted by one V.L. Solanki, Police
Inspector, working under Ms. Johri.”
30. The Apex Court, after having taken into
consideration the Eight Action Taken Reports
and having found that the police authorities
in the State had failed to carry out a fair
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and impartial investigation as envisaged by
the Apex Court, and as no fresh FIR was filed
despite the preliminary investigation, made
observations at paragraphs 68 to 71 as
under:-
“68. From the above factual discrepancies
appearing in 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 was of grave nature which
needs to be strictly dealt with.
69. We have observed that from the record,
it was found that Mr.V.L.Solanki, an
investigating officer, was proceeding in the
right direction, but Ms.Johri had not been
carrying out the investigation in the right
manner, in view of our discussions made
herein above. It appears that Ms.Johri had
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not made any reference to the second report
of Solanki, and that though his first report
was attached with one of her reports, the
same was not forwarded to this Court.
Therefore, we are of the view that her
mentioning the criminal background of
Sohrabbuddin and the discussion among the
accused officers concerning Sohrabbuddin was
meant to obfuscate the enquiry.
70. In our view , the investigation of
crime was carried out dehors the mandate
contained in the Cr.P.C. and particularly
Chapter XII containing Section 154-176 of
the Code. There had been no fresh FIR filed
despite primary investigation No. 66 to make
the same the basis for investigation and
trial.
71. In the case of Sheikh Hasib alias
Tabarak v. The State of Bihar [(1972) 4 SCC
773], it was held that the object of FIR,
from the point of view of the investigating
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authorities, is to obtain information of the
alleged criminal activity so as to take
suitable steps for tracing and bringing to
book the guilty party. Admittedly, the FIR
dated 16th of November, 2005 which was filed
following the alleged encounter was a
fabricated one and, therefore, it could not
have formed the basis of the real
investigation to find the truth.”
31. The aforesaid shows that if the FIR was
filed for an alleged encounter and
subsequently in the investigation, the truth
is found to be otherwise, including the
encounter not being genuine, it may call for
filing of another/fresh FIR for commission of
other crimes, resulting in the death of the
persons, which may further be required to be
investigated.
32.In case of Babubhai v. State of Gujarat,
reported in 2010 (12) SCC, 254, on the aspect
of filing of two FIRs, the Apex Court has
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elaborately dealt with the case law from
paragraph 13 onwards, after considering its
earlier decisions in cases of Ram Lal Narang
v. State (Delhi Admn.) (1979) 2 SCC (Cri) 479;
T.T. Antony v. State of Kerala, (2001) 6 SCC
181; Upkar Singh v. Ved Prakash, (2004) 13 SCC
292, Rameshchandra Nandlal Parikh v. State of
Gujarat, (2006) 1 SCC 732, Nirmal Singh
Kahlon v. State of Punjab, (2009) 1 SCC 441,
and further observed at paragraphs 20 and 21
as under:-
“20. Thus, in view of the above, the law
on the subject emerges to the effect that an
FIR under Section 154 Cr.P.C. isa very
important document. It is the first
information of a cognizable offence recorded
by the Officer In-Charge of thePolice
Station. It sets the machinery of criminal
law in motion and marks the commencement of
the investigation which ends with the
formation of an opinion under Section 169 or
170 Cr.P.C., as the case may be, and
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forwarding of a police report under Section
173 Cr.P.C. Thus, it is quite possible that
more than one piece of information be given
to the Police Officer In-charge of the
Police Station in respect of the same
incident involving one or more than one
cognizable offences.
21. In such a case, he need not enter each
piece of information in the Diary. All other
information given orally or in writing after
the commencement of the investigation into
the facts mentioned in the First Information
Report will be statements falling under
Section 162 Cr.P.C. In such a case the court
has to examine the facts and circumstances
giving rise to both the FIRs and the test of
sameness is to be applied to find out
whether both the FIRs relate to the same
incident in respect of the same occurrence
or are in regard to the incidents which are
two or more parts of the same transaction.
If the answer is affirmative, the second FIR
is liable to be quashed. However, in case,
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the contrary is proved, where the version in
the second FIR is different and they are in
respect of the two different
incidents/crimes, the second FIR is
permissible. In case in respect of the same
incident the accused in the first FIR comes
forward with a different version or counter
claim, investigation on both the FIRs has to
be conducted.” Emphasis supplied
33.The aforesaid makes it clear that if the
version of the first FIR or the allegation
made in the first FIR about the encounter
having taken place and life having been lost
by the person concerned in such alleged
encounter that is not found to be genuine,
the resultant effect would be that the death
of the victims could have occurred at a
different place, different time and, may be,
in a different manner. But it is undisputed
position that the concerned police officers
have entrusted the dead-body of the deceased
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for the postmortem report and other inquest
panchnama, etc. If the investigation already
made in connection with the FIR for the lives
lost in the encounter reveals that lives were
not lost in a genuine encounter, and if the
ingredients of a genuine police encounter are
not satisfied to justify the killings, and
the credibility of the encounter itself is
suspect suggesting that it was not genuine,
then it would be a case for registration of
another/fresh FIR, for commission of the
alleged crime based on the findings and the
conclusion so recorded by the SIT as referred
to herein above.
34. It is hardly required to be stated that
if the deceased have not lost their lives in
an encounter, in any case, it would make it a
case for the death of the deceased through
any action by the culprit other than that of
so-called encounter. It may also result into
causing death of the person concerned through
any mode or action of conspiracy or
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commission of crime, which will have to be
investigated by the team of investigating
officers or the agency as may be considered
proper by this Court. It is also hardly
required to be stated that if the action or
the crime is for taking life of somebody or
for causing death of somebody, it would be an
offence under Section 302 of IPC and may also
attract other offences of IPC or any other
relevant provisions of law. We do not wish
to express any concrete or conclusive
observations on the said aspect since the
fresh/another FIR is yet to be registered and
the investigation thereof is yet to take
place, and any observation made by this Court
on the aspects of commission of crime at a
place or in a mode or the manner other than
that of an encounter, may also prejudice the
rights of the alleged accused at different
stages, including that of trial, if any such
circumstances arise. We may also clarify
that the aforesaid observations are made only
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to record the reasons for requirement of the
registration of fresh/another FIR based on
the premise that the encounter was not
genuine. Hence, it appears that appropriate
directions will be required to be given to
the Chairman, SIT for registration of
another/fresh FIR of the incident in
accordance with law at a police station of
the concerned area within whose jurisdiction
alleged offence could be said to have been
committed as per the investigation papers of
SIT. The Chairman of SIT even if is not sure
about the exact place, the time and the date
on which the deaths of the deceased have been
caused, would be required to lodge the
complaint in a manner, which would enable the
concerned investigating agency to further
investigate in the matter.
35. The learned Advocate General by relying
upon the decision of the Apex Court in the
case of Jakia Nasim Ahesan & Anr. v. State of
Gujarat & Ors., in Criminal Appeal No.1765 of
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2011 (decided on 12.9.2011) made an attempt
to contend that in the said decision, the
Apex Court did not permit the registration of
another/fresh FIR, but only directed the
submission of the report to the concerned
Court, leaving the concerned Court to take
further action in this regard and, therefore,
it was submitted that when the FIR is already
registered regarding the incident being C.R.
No.8/2004, with the Crime Branch Police
Station, even if it has transpired in the
investigation that the encounter is not
genuine, such report can be filed in the
concerned criminal court and the concerned
Criminal Court may take action in accordance
with law and this Court may not direct the
registration of another/fresh FIR.
36. It appears to us that the contention is
misconceived and the reliance is ill-founded,
inasmuch as in the case before the Apex Court
in the case of Jakia Nasim Ahesan & Anr. v.
State of Gujarat & Ors. (supra), FIR for the
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alleged crime regarding Section 302 of IPC
and other offences was already registered
with Meghaninagar Police Station, Ahmedabad
and after investigation, the charge-sheet was
also filed against certain accused. Not only
that, but the case was already committed to
the Court of Sessions, Ahmedabad.
Thereafter, during the course of the trial,
the appellant before the Apex Court was
desirous of lodging another complaint against
certain persons for the very offences. Such
is not the fact situation in the present
case. Had it been a case where the encounter
was found to be genuine, which may involve
other persons in addition to those, who are
already shown in the complaint, it might
stand on a different footing and different
consideration would have applied. In the
present case, the entire allegations in the
FIR regarding loss of lives of the deceased
in a police encounter are not found to be
genuine. Therefore, once a conclusion is
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drawn that the encounter is not genuine, a
case is made out regarding commission of
other offences under the IPC, which may
involve those police officers, who are stated
to have taken the lives of the deceased in
self-defence, in the police encounter. Under
these circumstances, the reliance placed upon
the decision referred to by the learned
Advocate General is ill-founded. Further, as
already observed by us after having taken
into consideration the case law prevailing
for registration of another/fresh FIR, we
find that since the nature of the incident
and the alleged crime has come out to be
different on account of the encounter having
been found to be non-genuine, registration of
a fresh/another FIR would facilitate the
investigating machinery to locate the crime
and the persons involved therein. Apart from
the aspect that in the event the charge-sheet
is filed, there would be a proper base for
the conduct of the trial. Therefore, the
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contention of the learned Advocate General
does not deserve to be accepted.
INVESTIGATION AGENCY
37. The next aspect is regarding which agency
should conduct the investigation after
registration of another/fresh FIR as observed
herein above.
38. Mr.Sayed and Mr.Sinha, learned Counsel on
behalf of the original petitioners have
prayed that when SIT is already constituted,
this Court may continue the investigation of
another/fresh FIR also with the SIT. They
have contended that though it was earlier
prayed by the petitioners for the
investigation through CBI, now they are not
desirous to see that the investigation of
another FIR be made by CBI. Therefore, they
submit that the same SIT be continued.
39. Whereas, Mr.Yogesh Lakhani, Amicus Curiae
at the first instance submitted that he had
no specific instructions through SIT or its
Chairman on the aspects of investigation by
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it. However, at a later point of time,
Mr.Lakhani made submissions so as to assist
the Court and contended that the same SIT can
be continued with the task of investigation
after the registration of another/fresh FIR.
40. At this stage we may also state that
Mr.R.R. Verma, Chairman of SIT and Mr.Mohan
Jha, another Member of SIT, declared before
the Court during the course of hearing, that
they are desirous of being relieved from the
SIT because of various personal
circumstances. As per the Chairman of SIT,
since his task of finding out the genuineness
of the encounter, or otherwise, is complete
he may be relieved. Whereas, Mr.Satish
Verma, the remaining Member of the SIT is not
desirous to be relieved as a Member of SIT.
It may be recorded that Mr.R.R.Verma has
given in writing vide letter dated 18.11.2011
addressed to the Registrar (Judicial) that he
wants to be relieved. Further he has also
given in writing vide letter dated 21.11.2011
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that this Court may consider the closing of
the Special Cell of SIT, since on the aspects
regarding retraction of statements, custodial
interrogation, etc. may be required to be
carried out.
41. Mr.Lakhani also clarified that he is not
making submissions upon instructions received
from the Members of the SIT to continue with
the investigation by the SIT after
registration of another/fresh FIR, but has
made submissions only with a view to assist
the Court.
42. Whereas the learned Advocate General
appearing for the State submitted that the
first choice on the part of the State is the
investigation of another/fresh FIR through
the State Agency. He has submitted that if
this Court finds it proper to give the
investigation to an agency other than that
of the State, then in his submission, it may
be given to NIA or CIB. However, the State
has various reservations and objections for
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the investigation to be carried out through
the SIT, more particularly when one of the
Members of the SIT namely; Mr.Satish Verma,
is facing other charges in connection with
another incident.
43. Whereas on behalf of the Union of India,
Mr.Champaneri, learned Assistant Solicitor
General submitted that NIA will have
jurisdiction only if the allegations of
conspiracy to commit terrorist acts continue,
and it does not result into only offences
under IPC. It was submitted that the NIA
would be willing to take over the
investigation, but its jurisdiction is
limited to the scheduled offences. He
submitted that CBI is already over-burdened
with many cases and its resources are already
spread too thin. Moreover, a number of posts
are vacant in the organization of CBI. It
was further submitted that in case the
investigation is not entrusted to NIA, an
officer can be spared, who has atleast 4 to 5
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years' remaining period of service and who
may be given powers of an SHO, who can be
free to choose his own team for the
investigation, prosecution and trial, and the
Government of India can identify such an
officer of the rank of a DIG, for this
purpose.
STATE AGENCY
44. As the first choice as per the State is
the State agency, we find that the said
aspect deserves to be considered first.
45. In the judgement of this Court dated
12.8.2010 in Special Criminal Application
No.822 of 2004, vide paragraph 78 of the said
judgement (reproduced at paragraph 5 herein
above) it was observed that the investigation
by the I.O. and the Additional DGP was not
satisfactory and it was also observed that to
instill confidence and provide credibility to
the investigation, is a must. It is true
that at the relevant point of time, there was
no material on record before the Court
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regarding any malice or mala fide on the part
of the officers of the State, therefore, the
Court declined the transfer the investigation
to CBI as was prayed by the petitioner
therein. However, the subsequent
circumstances can better be narrated as
under:-
(1) In spite of the constitution of SIT by
this Court vide above referred judgement
dated 12.8.2010, for the purpose of
investigation, an attempt was made by the
State to assign the investigation to the
Special Task Force and this Court in its
order dated 24.9.2010 (reproduced at
paragraph 6 herein above) had observed that
such decision on the part of the State or
attempt can hardly be considered as a valid
ground to recall the observations made for
constitution of SIT.
(2) In the aforesaid very order when the
reservation was shown by the State against
the inclusion or induction of any officer of
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IPS Rank from outside the State, this Court
had observed that such reservation cannot be
countenanced and thereafter, this Court did
constitute the first SIT headed by Mr.Karnal
Singh as Chairman.
(3) In the report of Mr.Karnal Singh dated
20.4.2011 vide paragraph 58, it was suggested
that judicial inquiry or some other inquiry
be conducted to unearth the forces acting
within the State, who are trying to hamper
the impartial investigation and it was also
stated that he is of the considered view that
an impartial and fair inquiry is not possible
by appointing the officers from the State
Police to investigate the case. It was
proposed that either the three SIT Officers
should be from outside the State or the
investigation may be handed over to an
independent agency. In the very report at
paragraph 63 it was prayed by him that an
inquiry be ordered to unearth the forces
acting within the State, who are trying to
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derail the investigation and are obstructing
the impartial and fair investigation. It had
been stated that he is of the view that a
fair and impartial investigation requires
that either investigation to be conducted by
SIT Members from outside the State or by an
independent agency.
(4) This Court in its order dated 28.01.2011
(reproduced at paragraph 9 herein above) had
to observe that it would be open to the SIT
to intimate the names of the officers or the
witnesses to be interrogated or those who may
be the witnesses to the incident, and such
officials shall be posted in a manner that
they are not required to work under the
higher officers, who are directly or
indirectly involved in the incident and the
State was further directed to act accordingly
upon the information so received from SIT.
(5) This Court, in its order dated 8.4.2011
(reproduced at paragraph 11 herein above) had
taken note of the fact that in spite of the
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direction issued earlier and the requisition
made by the SIT for transfer of certain
police officers, namely; Mr.P.P. Pandey,
Mr.G.S. Singhal, and Mr.Tarun Barot, they
were not transferred and, therefore, a
specific time-bound direction was given to
comply with the earlier order with one week.
(6) When certain record of FSL was seized by
Mr. Stish Verma, one of the members of the
SIT, during the course of investigation, a
complaint was filed against him without it
having been brought to the notice of this
Court, and without the permission of this
Court. In the aforesaid very order dated
8.4.2011, this Court had to observe that no
attempt should be made for creating any
hindrance or obstruction in the
investigation.
(7) In spite of the aforesaid direction to
transfer certain police officers within a
particular time limit, the compliance was not
made until the Board of experts visited and
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reconstructed the scene at the site of the
incident and one of the officers Mr.G.S.
Singhal who played major role at that stage
was otherwise supposed to be transferred
prior thereto was not transferred. The
aforesaid aspect of major role played by the
said officer has also transpired in the 8th
report of SIT.
(8) The aforesaid (except the reference in 8th
report of SIT) is taken note in the order
dated 21.4.2011 (reproduced at paragraph 13
herein above). This Court thereafter in the
very order had to call for explanation of the
Secretary of the home Department of the State
Government before concluding on the aspects
whether action be initiated under the
Contempt of Courts Act, or not.
(9) Once again when the matter came to be
considered by this Court on 12.5.2011
(reproduced at 14 hereinabove), an attempt
was made on the part of the State Government
by way of suggestion that the investigation
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may be assigned to the Special Task Force,
which is to work under the monitoring
authority instead of constitution of a new
SIT and this Court had to decline such prayer
in order to instill confidence and
credibility in the investigation by observing
that the approach on the part of the State to
re-agitate such questions deserves to be
deprecated.
(10) Again on 9.9.2011 this Court had to
issue direction to State vide order
(reproduced at paragraph 20 herein above)
that the State shall not transfer the
officers connected with the functioning of
the SIT until the work of the SIT is over and
one Mr.Mistry, who has already been
transferred shall be reposted in Ahmedabad
and shall be continued until the work of SIT
is over.
(11) The investigation report of State
Police Officer namely; Ms.Parixita Gurjar is
found to be not correct as per the
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investigation made by the SIT.
(12) Further, all top, high officials of
the State up to the rank of the then DGP may
fall within the ambit of investigation in
connection with the registration of
another/fresh FIR.
45. The aforesaid facts and circumstances, if
considered, cumulatively, keeping in view the
paramount consideration of instilling
confidence in the investigation and for
maintaining the credibility of investigation
with the aim to book the real offenders, it
appears to us that now it would not be a case
to assign the investigation to the State
agency.
SIT
46. On the aspects of investigation to be
made of another/fresh FIR by SIT, following
aspects have transpired:-
(1) It was already ruled vide judgement dated
12.8.2010 in Special Criminal Application
No.822 of 2010 paragraph 78.10(reproduced at
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paragraph 4 herein above) that the Members of
SIT or the SIT works under the control of
this Court and hence alteration in the
composition or constitution of new SIT,
cannot have demoralizing effect, but can be
termed as a transfer of work or assignment
simplicite.
(2) This Court had taken note of the aspects
in its order dated 24.9.2010 (reproduced at
paragraph 7 herein above) that if the very
SIT for riot cases is unable to take up the
investigation, the consequence may arise that
either no result may come out, for which the
direction has been issued by this Court or in
alternative it would not serve any purpose
whatsoever.
(3) This Court in the order dated 28.1.2011
(reproduced at paragraph 9 herein above) had
found that there were differences of opinion
between the Members of SIT and the same was
also reflected in the affidavit of Mr.Satish
Verma and, therefore, this Court had to lay
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down the discipline amongst the Members of
the SIT themselves and Mr.Karnal Singh was
appointed as the Chairman of SIT and the
other two police officers were appointed as
the Members of the SIT.
(4) In order dated 8.4.2011 (reproduced at
paragraph 11 herein above) this Court had
recorded that the investigation of SIT was
not satisfactory on account of the non-
availability of its Chairman Mr.Karnal Singh.
(5) This Court in its order dated 21.4.2011
(reproduced at paragraph 13 herein above) had
noted the fact that because of non-
availability of Chairman, Mr.Karnal Singh was
permitted to be relieved, the duties were
required to be demarcated amongst other two
Members of the SIT, since there were various
differences of opinion in the mode and manner
of investigation.
(6) In the report of Mr.Karnal Singh dated
20.4.2011 he also opined and prayed for
investigation by SIT Members from outside the
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State or by an independent agency.
(7) After Dr. Satyapal Singh having been
appointed as Chairman of SIT, this Court in
its order dated 24.6.2011 (reproduced at
paragraph 15 herein above) had recorded that
Dr. Satyapal Singh had expressed difficulties
about the language and interrogation of
Mr.P.P. Pandey, who is his batch mate and had
shown difference of opinion between two SIT
members and, therefore, he had prayed for
relieving him as Chairman of SIT.
(8) Thereafter, this Court vide order
dated 15.7.2011 (reproduced at paragraph 16
herein above) relieved Dr. Satyapal as the
Chairman of SIT and appointed Mr.Ramudu in
his place.
(9) The Union of India thereafter once
again prayed to substitute Mr.Ramudu by
another officer and this Court vide its order
dated 19.7.2011 in Criminal Misc. Application
No.10244 of 2011 (reproduced at paragraph 17
hereinabove) did observe that if the officer
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concerned has no inclination or zeal to work
as Chairman of SIT he will not be able to
bring about the result as expected by the
Court while ordering investigation through
SIT and, therefore, in place of Ramudu,
Mr.R.R. Verma was appointed as the Chairman
of SIT (IO). In the aforesaid very order
this Court had to record the unhappy state of
affairs namely as that the Union Government
was unable to command its officers when a
mandate was given by this Court. The Court
further recorded that such a situation will
never bring about the truth for which the
directions were issued by this Court. This
Court in the aforesaid very order had further
taken serious note of the casual approach on
the part of the Union of India and had issued
directions calling upon the officer concerned
to submit the explanation in this regard,
before taking any further stern action to
maintain the authority of the Court.
(10) This Court in its order dated
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5.8.2011 in Criminal Misc. Application
No.10011 of 2011 had taken note of the serious
aspects of retraction of the statement by the
important witnesses even when the
investigation by SIT was going on and
allegation by one of the members of the SIT
regarding playing of a role in the
retraction, by one of the Members of the SIT
itself and, therefore, this Court had to
direct the Chairman of SIT himself to
investigate the matter regarding retraction
of the statements of the witnesses. Of
course, it was observed that the action, if
any, to be taken against any members of the
SIT could only be taken after permission is
granted by this Court.
(11) The Chairman of SIT has submitted
the report and has found that the first
statement of the main witnesses namely;
Motibhai Desai and Shivsingh were voluntary
and were not given under compulsion or
duress, and for further investigation
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regarding retraction of such statements,
interrogation may be required.
(12) The final (8th) report of the
Chairman, of the SIT has been given
unanimously. However, simultaneously he has
given in writing that he may be relieved as a
Member of SIT and has declared before the
Court that he and Mr.Mohan Jha are desirous
of being relieved from the SIT, whereas
Mr.Satish Verma is desirous to be relieved as
a Member of SIT.
(13) The Chairman of SIT Mr.R. R. Verma
has given in writing that on the aspects of
retraction of statements of the witnesses,
final report is not submitted, but interim
report is submitted and for further
investigation custodial interrogation may be
required. He has requested that such work
may be assigned to another person or agency
by closure of the said Special Cell of SIT.
(14) The Chairman of SIT during the
course of hearing has also declared that if
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investigation of another FIR is given to SIT,
there is no facility of getting the person
arrested, nor is there any place available
for custodial interrogation. He submitted
that if the remand is given there is no
facility available. He also stated before
this Court that at one point of time when SIT
wanted to interrogate some persons, an oral
request was made to CBI but the same was
declined.
47. The aforesaid facts and circumstances as
have transpired after assignment of the work
to SIT show that the conduct of investigation
by SIT, in spite of the directions issued by
this Court, has remained very slow at the
initial stage. As per the report of Dr.
Karnal Singh dated 20.4.2011 a few
substantial details had come out. It is
significant to note he had stated at
paragraph 58 that there were forces at
various levels of the State, which perhaps
are causing impediment in the impartial and
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fair investigation and he had also prayed for
investigation to be conducted by SIT members
from outside the State or by an independent
agency. After Mr.Karnal Singh was relieved
as Chairman, the progress of investigation by
the SIT was slow and in the meantime, the
second Chairman, Dr.Satyapal Singh, also
prayed to be relieved. It is true that
substantial progress came about after Mr.R.R.
Verma took over as the Chairman of SIT, at
least to the extent of finding out as to
whether the encounter was genuine, or not.
But he has also not been able to give a final
report on the aspects of the persons, who
played a role in retraction of the statements
of the witnesses. In any case, Mr.R.R. Verma
has also prayed for being relieved as the
Chairman of SIT. There are serious
differences of opinion between the other two
Members of SIT namely; Mr.Mohan Jha and
Mr.Satish Verma. In any case, Mr.Mohan Jha
has shown his desire to be relieved as a
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Member of the SIT. Consequently, only one
Member remains i.e. Mr.Satish Verma who has
not shown willingness to be relieved as a
Member of SIT. This brings about a situation
that the majority of members of the SIT,
including the Chairman, are not desirous of
continuing with the SIT.
48.It is hardly required to be stated that
officers, who are not desirous of take up the
assignment, would have no zeal or sincerity
to conduct and complete the investigation in
the right spirit. The willingness shown by
the Union of India to spare another officer,
in view of the aforesaid facts and
circumstances, shows that it has not seen the
reality in the manner as it was expected to
command its officers to comply with the
mandate and directions of this Court in its
true spirit. Further, as stated by the
Chairman of SIT, there is no facility of
custodial interrogation, or any basic
infrastructure in a full-fledged manner
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available with the SIT for conducting the
investigation, such as public prosecutor,
etc. At every level SIT will be required to
be dependent upon the State Agency and in
view of the reasons mentioned herein above
the assignment of such work or getting the
work done through the State Government may
derail the investigation and allow certain
forces to enter at various levels that may be
uncontrollable by SIT. In any case, when the
matter is to be considered from the stage of
filing of FIR until the investigation and
conclusion of trial, all the aforesaid
aspects may assume much importance.
Therefore, we find that after registration of
another/fresh FIR based on the final (8th)
report of SIT, the investigation be assigned
to the agency other than that of SIT. But
since one of the Members of SIT, Mr.Satish
Verma has not shown willingness to be
relieved, his assistance can be taken by the
agency, to which the work is assigned for
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investigation of the aforesaid another-fresh
FIR. Such assistance of one of the Members
of SIT, Mr.Satish Verma would enable the
investigating team of another agency to get
clues and may also prove to be very helpful,
though ultimately the opinion of such
investigating agency is to prevail, subject
to the orders of the Court.
NIA
49. The next aspect is whether the National
Investigating Agency (NIA) can be assigned
the investigation. In our view, for the
purpose of terrorist acts, complaint is
already registered against the deceased vide
C.R. No.8 of 2004 and the same is pending
before the POTA Court. If the deceased had
entered the territory of the State for
committing terrorist acts, it would be the
subject matter of the said case. However, if
such persons (deceased) are liquidated or
caused to death by other than that of
encounter or in self-defence, may be by the
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concerned police officials or otherwise, the
same would constitute a separate offence
under IPC. As per National Investigating
Agency Act 2002 (hereinafter referred to as
'NIA Act' for short) the agency has the
competence to investigate scheduled offence,
which includes vide Item No.5 but the same is
limited to Terrorist Act. The offence as
mentioned under IPC vide Clause 8 of the
Schedule may not be attracted in the facts of
the present case as per the fresh/another
FIR. If the investigation is assigned to NIA
and the charge is only of offence under IPC,
more particularly other than those covered by
Clause 8 of Schedule, the question of
competence and jurisdiction of NIA may arise.
Similarly such questions may also arise at
the time of taking cognizance and for
conducting trial by the concerned Special
Court. If the Parliament has not conferred
the jurisdiction upon the investigating
agency or upon the Court for trial of the
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offence, such jurisdiction cannot be
conferred, even by this Court while
exercising power under Article 226 of the
Constitution of India upon a Court which has
no jurisdiction. The reference may be made
to the decision of the Apex Court in the case
of A.R. Antulay v. R.S. Nayak and Anr.,
reported in (1998) 2 SCC, 602. It is in view
of such facts and circumstances of the
present case that we find in order to ensure
a smooth course of investigation and if
required, ultimately to see that the
offenders are booked as per law and further
the offences are taken to the logical end, it
would be just and proper not to assign the
investigation to NIA.
CBI
50. The aforesaid would take us to the
remaining course available for assignment of
the investigation to CBI.
51. It is an undisputed position that both
the petitioners had made a prayer in the
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petition for investigation to be assigned to
CBI, which was vehemently opposed by the
State Government at the relevant point of
time. It is true that now the petitioners,
as well as the State Government have both
changed their stands, inasmuch as the
petitioners now pray that the investigation
of the another/fresh FIR be conducted through
the same SIT, whereas the learned Advocate
General for the State declared before the
Court that the State has no objection if this
Court is inclined to assign the investigation
to either NIA or CBI, in the event that it is
not inclined to give the investigation to the
State Agency which is the first choice. He
had further stated that the State Government
has no objection even if the investigation
with CBI is monitored by this Court by way of
submission of progress reports, or otherwise.
52. The learned Counsel for the original
petitioners did submit that the CBI is given
assignment of the investigation, as per their
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experience, it would land into a large number
of political allegations and counter
allegations and will not bring about the real
offenders to book. It was also submitted
that the CBI is busy with many other scams
and they have only residual officers, who
would not seriously take up the
investigation.
53. Whereas on behalf of the Union of India,
it was submitted that the CBI is already
over-burdened and it has limited resources as
a number of posts are vacant. Therefore, it
can be termed that the Union of India has
shown indirect reservations for assignment of
the work to CBI. At this stage, we may
mention that in the main petition, an
affidavit was filed on behalf of Union of
India that the CBI is ready to take up the
investigation. The said aspect is clear from
the further affidavit dated 29th September,
2009 filed on behalf of the Union of India
(in Special Criminal Application No.822 of
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2004) by Mr.Mani, Under-Secretary, Internal
Security – Class-VI of the Ministry of Home
Affairs, stating that Union of India would
have no objection if the independent inquiry
and the investigation is to be carried out by
CBI or otherwise and it was so declared that
the Union of India would abide by the
decision of this Court.
54. We may state that in the judgement of
this Court dated 12.8.2010 in the main
petition, when this Court had to consider the
aspect of assigning the investigation to the
CBI it was observed at paragraph 66, and 67
and thereafter at paragraph 69, thus:-
“66. We cannot countenance the
submission made by the learned Counsel
for the petitioners that the present
case of encounter falls at par with the
case of encounter of Sohrabuddin. The
fact situation of the case in the
decision of the Apex Court in the case
of Rubabuddin Sheikh v. State of
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Gujarat, reported in 2010(2) SCC, 200,
was that the investigation at the
initial stage was allowed to be
continued by the Apex Court with the
State Police. Not only that, but even
as per the investigation made prior to
the above referred decision of the Apex
Court, the encounter was found to be
fake and the charge-sheet was also
submitted upon with the action taken
report submitted before the Apex Court
from time to time, but thereafter the
Apex Court found that proper
investigation was not being made by the
State Police, therefore, it was
assigned to CBI. No such fact
situation exists in the present case
inasmuch as there is no finding
recorded, nor any material at par with
the case for encounter of Sohrabuddin
Sheikh. Merely because some
observations are made in respect of
functioning of State Police in the case
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of a particular investigation of a
particular incident, we cannot
countenance the submission of the
learned Counsel for the petitioners
that for all investigations, in which
police officers are involved, the same
cannot be undertaken by the State
Police and the case would call for
transfer of investigation to CBI.
67.If the matter is considered in light
of the earlier decision of this Court
in the case of Bharatbhai Umedsang &
Anr. v. State of Gujarat (supra), for
the transfer of investigation to CBI,
as observed by this Court in the above
referred case, power can be exercised
by this Court in a very extraordinary
case, where there is sufficient
material before the Court to record the
substance in the apprehension of the
complainant or the victim that even the
higher officer of the State, if
assigned with the investigation, has
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failed in duty or would be failing in
duty cast upon the statute in the
matter of investigation. Further, the
satisfaction, either by stepping into
the investigation or by transferring
the investigation to other
investigating agency like CBI cannot be
recorded on a mere ipsi dixit of a
complainant or a victim, nor can it be
recorded only because the concerned
investigating officer has not acted as
per the desire of the victim nor such
investigation can be transferred only
because the accused apprehends that
there will be any further strict action
by the investigating officer. The
degree of malafide or malice on the
part of the investigating officer to
carve out a case in exceptional
category, may be for transferring the
investigation to some other officer or
otherwise, would require a cogent
material on the face of it, which would
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leave the Court to satisfactory
material substance in the apprehension
voiced by either side, may be the
complainant or the victim or the
accused. The examination of the facts
of the present case, if considered,
there is no material whatsoever on
record to show any malice or malafide
on the part of the investigating
officer for intentionally not properly
conducting the investigation, may be
either Ms.Parixita Gurjar as the
Investigating Officer or Mr.Mahapatra as
further making inquiry in the said
incident. In absence of any material
on record for any malafide or malice on
the part of the aforesaid officers, who
have so far conducted the
investigation, it cannot be said that
there is any satisfactory material with
the Court to accept the contention of
the learned Counsel for the petitioner
representing the relatives of the
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deceased that the officer acted with
any malafide or malice. Therefore, if
the case is to be tested on the
allegation of malafide or malice on the
part of Investigating Officers or any
State police officer, no case can be
said to have been made out for
transferring the investigation to CBI.
The learned Counsel appearing for the
petitioners did rely upon certain cases
where this Court or the other High
Courts had found it proper to entrust
the investigation to CBI, since certain
police officers were involved or high
police officers were involved. Such
decision can hardly be read as laying
down the principle that in a case where
the offences alleged to have been
committed by the police officers, the
other police officer, higher police
officer shall not discharge the duty
for investigation in an impartial
manner. At the most it can be said
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that in the facts and circumstances of
those cases, this Court or the other
High Courts found it proper to transfer
the investigation to CBI. No parity
can be drawn on the ground as sought to
be canvassed by the learned Counsel
appearing for the petitioners.
68. xxx
69.The aforesaid leads us to further
find out as to how the investigation
can be carried out in a manner, which
instills the confidence and credibility
to such investigation to do complete
justice in order to protect the
fundamental rights of the citizens of
the country.”
55. The aforesaid shows that the
investigation is to be carried out in a
manner which instills confidence and
credibility to such investigation, to do
complete justice in order to protect the
fundamental rights of the citizens of the
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country. It is true that at that stage,
thereafter this Court had found it proper to
constitute a broad-based SIT and the prayer
for assignment of the investigation to CBI
was not granted at that stage. However, in
view of the facts and circumstances mentioned
herein above and the conclusion not to assign
the investigation to the State Agency, the
matter is now required to be considered
accordingly. Further, various factors
recorded and considered herein above show
that the SIT so constituted had to be geared
up with various efforts and various
directions and the zeal of the officers in
functioning as Members of SIT and more
particularly that of the Central Cadre was
not so satisfactory to continue with the
assignment. As observed earlier, the first
Chairman, Mr.Karnal Singh after some time,
expressed his inability to continue and
desired to be relieved. However, he did
opine for assignment of the work to an
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independent agency or a SIT whose Members
were from an agency other than the State
Agency. The second Chairman Dr. Satyapal
Singh, had a very limited role and he also
expressed willingness to be relieved. The
third Chairman, Dr Ramudu, had practically
never took over because of his physical
ailment, or otherwise. Substantial progress ,
if any, could come out only during the tenure
of the last and the fourth Chairman Mr.R.R.
Verma, but after the 8th – Final report he has
also shown a desire to be relieved and
expressed a view for assignment of the
investigation to some other independent
agency.
56.As observed earlier, now the material has
come out showing the situation that the
investigation cannot be assigned to the State
Agency. Further, in view of the peculiar
circumstances narrated herein above, majority
of the Members of the SIT after completing
the work, and expressing the unanimous view
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on the aspect of genuineness of the
encounter, have shown a desire to be
relieved. Further in view of the reasons
recorded herein above we have also found it
proper not to assign the investigation to the
present SIT, save and except making use of
the services of Mr.Satish Verma in future for
investigation by any other agency. If the
aforesaid are ruled out, the third option was
NIA, which for the reasons recorded herein
above may not be proper in order to ensure
the smooth course of investigation and the
conduct of the trial, if any, in future.
Hence, the only agency now left is CBI, which
is a Central Agency. At this stage we may
once again refer to the decision of the Apex
Court in the case of State of West Bengal and
Ors Vs. Committee for Protection of
Democratic Rights, West Bengal & Ors reported
in (2010) 3 SCC, 571 (2010 STPL (Web) 129 SC),
wherein the Apex Court, while considering the
question about the power of the constitutional
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Court under Article 32 or 226 for entrustment of
the investigation to CBI, recorded conclusions,
the relevant of which for the present group of
matter is at para 45(ii) as under:
“(ii) Article 21 of the Constitution in its
broad perspective seeks to protect the
persons of their lives and
personal liberties except according
to the procedure established by law.
The said Article in its broad
application not only takes within its
fold enforcement of the rights of an accused
but also the rights of the victim. The State
has a duty to enforce the human rights of a
citizen providing for fair and impartial
investigation against any person accused of
commission of a cognizable offence,which may
include its own officers. In certain
situations even a witness to the crime may
seek for and shall be granted protection by
the State.”
While recording the final analysis at para 46,
the Apex Court did observe that the Apex Court
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and the High Court have not only the power and
jurisdiction, but also an obligation to
protect the fundamental rights,
guaranteed by Part III in general and under
Article 21 of the Constitution in particular,
zealously and vigilantly. But at the same time,
the further observations by way of caution, have
been made at para 47, relevant of which reads as
under:
“Before parting with the case, we deem it
necessary to emphasize that despite wide
powers conferred by Articles 32 and 226 of
the Constitution, while passing any order,
the Courts must bear in mind
certain self-imposed limitations on
the exercise of these
Constitutional powers. The very plenitude
of the power under the said Articles
requires great caution in its exercise. In
so far as the question of issuing a
direction to the CBI to conduct
investigation in a case is concerned,
although no inflexible guidelines can be
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laid down to decide whether or not such
power should be exercised but time and
again it has been reiterated that such an
order is not to be passed as a matter of
routine or merely because a party has
levelled some allegations against the local
police. This extra-ordinary power must be
exercised sparingly, cautiously and in
exceptional situations where it becomes
necessary to provide credibility and
instill confidence in investigations or
where the incident may have national and
international ramifications or where such
an order may be necessary for doing
complete justice and enforcing the
fundamental rights. Otherwise
the CBI would be flooded with a
large number of cases and with limited
resources, may find it difficult to
properly investigate even serious
cases and in the process
lose its credibility and purpose
with unsatisfactory
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investigations.” (Emphasis supplied)
57. In our view, the facts and circumstances of
the present case as have now emerged, call for
exercise of power treating the case in the
exceptional category, for assignment of the
investigation to CBI in order to provide
credibility and instill confidence in the
investigation, since the incident has by now
acquired national, if not international
ramifications. This would also be required to
do complete justice to the parties and for
enforcement of the fundamental rights.
58.We cannot countenanced the reservations shown
by the Union of India that CBI is already over-
burdened or that the posts are vacant. If the
Union of India is unable to man the central
agency, it should take effective steps in
this regard. When the investigation is
assigned by the Court while exercising power
under Article 226 of the Constitution of
India, it would be the bounden duty of the
Union of India to man CBI, if required, by
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requisitioning officers from other forces and
by deputation for satisfactory completion of
the work of investigation of a crime
registered with it in general, and for
completing the work of investigation
specifically assigned by the High Court under
Article 226 of the Constitution of India, in
particular.
59. We find it proper to record that the
investigation though now completed on the
aspects of genuineness of the encounter other
aspects are yet to be investigated regarding
causing death of the persons concerned
(deceased) and aspects related thereto.
Further, it may also be required on the
aspect of allegation of Terrorist Act as per
complaint vide C.R. No.8/2004 of Crime Branch
Police Station. Therefore, the investigation
is required to be taken up and handled in a
manner with all sincerity for enforcing the
law to its logical end. Only if the
investigation is taken up in such a manner,
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would it bring about the result as expected
from any independent and impartial agency.
60.The ground contended on behalf of
petitioner of chances of political
allegations if the investigation is assigned
to CBI will not be relevant or have any role
to play to slow down or derail the
investigation. Further, if at any point of
time the petitioners find that such
considerations have prevailed, nothing prevents
them from approaching the Court concerned or the
constitutional Court, for appropriate
directions. We leave the said aspect open, to be
considered in future if at all required.
However, we do find it proper to observe that the
paramount consideration of any investigating
agency would be to book the real offenders while
taking care that innocent persons should not be
harassed. Further as another/fresh FIR is yet
to be filed and registered and the investigation
is yet to be taken up, in absence of any material
for slow progress or derailing of the
investigation by CBI, the monitoring of such
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investigation, at this stage, can be said to be
premature.
61. Therefore, we find that it would be just
and proper to assign the entire investigation
to CBI after registration of a fresh/another
FIR by the Chairman of the present SIT. It
would also be required for the CBI to
constitute a team of investigation headed by
an Officer not below the rank of DIG. The
matter is already delayed long enough and,
therefore, such investigation also should be
completed within a reasonable time.
62. In view of the aforesaid observations and
discussion, the following directions:-
(a) Mr.R.R. Verma, Chairman of SIT (present)
shall register another/fresh FIR on the basis
of his final (8th) report to the effect that
the alleged encounter is not found to be
genuine and for causing death of the deceased
and consequently for the alleged offences
under IPC and other provisions of the
relevant laws.
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(b) The aforesaid FIR shall be filed by
Mr.R.R. Verma, Chairman, SIT with the CBI,
having jurisdiction for the crimes committed
in Gujarat State, within a period of two
weeks from the date of pronouncement of the
order and the same shall be registered by the
concerned officer of CBI.
(c) CBI shall thereafter take up the
investigation at the earliest and shall make
an attempt to complete the same at the
earliest.
(d) CBI shall entrust the investigation to
the team of its officers headed by an officer
not below the rank of DIG. During the course
of investigation, the said team of
investigation shall be at liberty to take
help/assistance of Mr.Satish Verma, IPS (1986
Batch, Gujarat Cadre), Member of the present
SIT in order to get clues for investigation
and further incidental aspects of the
investigation. However, it is clarified that
the final decision shall be of the CBI as
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referred to herein above.
(e) After the registration of FIR by the
Chairman of SIT, the record of the
investigation made by the SIT shall be handed
over to CBI by the Chairman of SIT.
(f) After the registration of FIR and after
handing over the entire record of SIT to CBI,
appropriate report shall be submitted to this
Court by the Chairman of SIT. It is only
thereafter that the SIT shall stand
dissolved.
(g) The State Government shall spare the
service of Mr.Satish Verma as and when so
desired or required by the CBI for helping
the CBI to provide clues for further
investigation or any other matter related
thereto.
(h) Further investigation of C. R. No.8/2004
of Crime Branch Police Station shall be
transferred to CBI, within one month after
the registration of the FIR by CBI as
directed herein above. The State Government
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shall issue appropriate orders/notification
for such purpose. CBI thereafter shall file
appropriate report based on conclusion of SIT
as per its 8th Report in the concerned Court,
but the full details and the relevant
documents shall be produced only after
investigation of the aforesaid another/fresh
FIR is completed and appropriate Report is
filed in the concerned Court for
another/fresh FIR.
(i) It is also observed and directed that in
the event during the course of investigation
of the aforesaid another/fresh FIR or
complaint vide C.R. No.8/2004 of Crime Branch
Police Station, the CBI is required to take
any action against any Member of SIT, the
same shall not be taken without prior
permission of this Court.
(j) All the record, reports and other
material supplied by the SIT be sealed
properly and be kept in safe custody of the
Registrar General of this Court.
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63. All the aspects of present application
shall get concluded as per the aforesaid
directions ordered herein above save and
except that on the aspect of consideration of
the matter for initiation of action under the
Contempt of Courts Act separate orders shall
be passed by this Court.
(Jayant Patel, J.)
(Smt. Abhilasha Kumari, J.)
vinod
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