Gujarat High Court
Kantibhai Bhikhabhai Chavda vs State Of Gujarat & 1....Opponent(S) on 13 April, 2017
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/WPPIL/164/2016 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 164 of 2016
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KANTIBHAI BHIKHABHAI CHAVDA....Applicant(s) Versus STATE OF GUJARAT & 1....Opponent(s) ========================================================== Appearance:
MS RATNA VORA, ADVOCATE for the Applicant(s) No. 1 MS MANISHA LAVKUMAR SHAH, GP WITH MR DM DEVNANI, AGP for the Opponent(s) No. 1 ========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date : 13/04/2017 CAV ORDER (PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. This petition is filed in the nature of Public Interest Litigation espousing the public cause in which the petitioner, who claims to be a social worker, has prayed that the investigation of FIR bearing C.R.No.I-127/2016 registered at Una Police Station be transferred to Central Bureau of Investigation (hereinafter referred to as 'CBI' for short). Petitioner has also prayed that the direction be given to respondent No.1 to set-up Fast Track Court to deal with the cases registered as FIR being C.R.No.I-127/2016 at Una Police Station.
2. The petitioner, who claims to be a social worker, has filed the petition in which it has been stated that on 11.07.2016 very brutal, Page 1 of 36 HC-NIC Page 1 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER heinous and shameful incident of atrocity on the persons belong to Dalit community has taken place in which so-called "Gau Rakshaks" are involved.
The said incident has occurred at village Mota Samadhiyala near Una town of Gir-Somnath District. The said incident has occurred when four Dalit youths were found skinning the carcass of a dead cow which was died earlier in some other village as the same being their traditional profession and they were doing their job. The said youths are belonging to Chamar community who are engaged in the aforesaid profession. The accused had beaten up the said victims. Thereafter, they were illegally put in the police lockup and there also they were beaten by the police officials. Ultimately, FIR being C.R.No.I- 127/2016 came to be registered at Una Police Station for the offences punishable under Sections 307, 395, 324, 323, 504 of Indian Penal Code, under Section 135 of Gujarat Police Act and under Sections 3(2)5 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the 'Atrocities Act' for short).
3. It is stated in the petition that the news of the aforesaid incident of atrocities on Dalits in Una Town were spread through Print and Electronic Media and in repercussion protest and anger had spread throughout the State like a wild fire.
On 01.08.2016, a report was submitted to the
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National Scheduled Caste Commission by the
District Superintendent of Police, Gir-Somnath
District, wherein it was stated that the DGP and District Superintendent of Police passed an order for investigation by Deputy Superintendent of Police, CID (Crime).
4. The grievance of the petitioner is that as the cases of atrocities on Dalits are rising since last 10 years, the petitioner made representations in past to the then Chief Minister and Chief Secretary of Gujarat but no strong action has been taken, as a result of which, the aforesaid incident has taken place on 11.07.2016. It is further the grievance of the petitioner that the respondent State has failed to protect the fundamental right of Dalits and in past, a similar case of atrocity by the police officer was registered on 23.09.2012 in Thangadh village of Surendranagar District. In that incident three Dalit youths were shot dead by police officer and therefore three different FIRs were lodged. However, the concerned investigating agency filed C Summary in the said cases and therefore two petitions have been filed before this Court. The petitioner, therefore, apprehends that in the present case also no fair investigation will be carried out by CID Crime. It is stated that CID Crime is one of the branches of the State Police Department under the Home Department and it can be influenced by the Page 3 of 36 HC-NIC Page 3 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER colleagues in the Police Department and therefore the members of Dalit community have no faith in the investigation by the CID Crime. It is further stated in the petition that the victims are very much scared, and would never come out in open to demand for investigation by CBI and therefore the petitioner being the member of the said community, has decided to file the Public Interest Litigation. Hence, the present Public Interest Litigation is filed on 08.08.2016.
5. When the petition was listed for hearing, this Court directed the learned Government Pleader to obtain instructions and place on record the stage of investigation and file appropriate report by the next date of hearing. Thereafter, matter was adjourned and ultimately the Deputy Superintendent of Police, Fraud Cell (CID Crime) filed an affidavit on 05.10.2016. In the said affidavit, the concerned Investigating Officer has stated in detail how the investigation has been carried out by CID (Crime). It is stated that after taking over the investigation on 20.07.2016 by CID Crime, the Special Investigation Team was constituted, which includes Deputy Superintendent of Police, Fraud Cell (CID Crime) and two Additional Detective Police Inspectors under the supervision of Superintendent of Police (SP), Admin., CID Crime and Inspector General of Police, Crime-II, CID Crime, Gandhinagar. It is stated that the charge-
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sheets bearing CC No.1262/16 and 94/16 have been filed on 07.09.2016 against 34 accused and three juveniles. Broadly, it has been stated that during the course of the investigation, 140 statements have been recorded under Section 162 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code' for short), statements of 10 witnesses have been recorded under Section 164 of the Code before the Magistrate. One Police Inspector, one PSI, one Woman ASI and another police officer came to be arrested as they have abetted the accused in commission of the offence and failed to discharge their duties as Police Officers with a view to help the accused from legal consequences. Thus, such police officers have committed offence punishable under Section 166(A), 167, 466, 177, 204 of the Indian Penal Code and Sections 3(2)
(iv), 3(2)(vii)A of the Atrocities Act. Thus, it has been stated that the concerned investigating team has carried out thorough investigation and thereafter filed the charge-sheet against 34 accused for the offence punishable under sections 307, 397, 395, 365, 355, 354, 342, 147, 148, 149, 324, 323, 504, 506(2), 120(B), 201, 166A, 167, 466, 177, 204, 294(b), 505(1)(b), 509, etc. of the Indian Penal Code; Section 135 of the Gujarat Police Act; Sections 3(1)(e),(r),(s),(u), 3(2) (5a), 3(1)(d), 3(1)(za)(E), 3(1)(w)(i),(ii), 3(2)
(vi), 3(2)(vii), 4 of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Page 5 of 36 HC-NIC Page 5 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER Act,1989; Section 66A & 66B of The Information Technology Act.
6. It is further the case of the Investigating Officer that further 74 FIRs were filed with regard to after effect of Una incident, 23 Dalit youths have attempted to commit suicide wherein one Dalit youth died. Statements of concerned persons who attempted to commit suicide were recorded in the respective cases. It is further stated that so far as the incident of Una is concerned, after filing of the charge-sheet before the Magistrate, the case has been committed before the Special Sessions Court, set- up by the State Government for this purpose.
7. The petitioner has filed rejoinder affidavit as well as an affidavit to point out inadequacy in the charge-sheet filed by the CID Crime, wherein the petitioner has stated that in the affidavit filed by the Investigating Officer, he has admitted that Una incident i.e. the crime in question was occurred as a part of well-designed conspiracy of the accused i.e. "Gau Rakshaks"
which are shown in the charge-sheet. The accused No.31 - Shantilal Shamjibhai Monpara, is the President of Shri Sanatan Charitable Trust and other accused in the charge-sheet are office bearers and members of the said Trust. The accused in conspiracy with each other have committed the aforesaid crime as per the charge-
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sheet. However, the investigating agency has
deliberately kept away to book the real
conspirators, who have actively participated in the crime by funding the conspirators of the present charge-sheet. The said organization i.e. the trust was getting funds for their illegal activities. However, the charge-sheet does not disclose very important fact that from where this organization is getting funds. It is further stated that after the Una incident, various incidents have occurred in different parts of the State and 74 FIRs were registered. Such incidents are also required to be investigated along with present charge-sheet submitted by the CID Crime and therefore by not investigating all the 74 FIRs with the incident in question of Una is a great lacuna. It is further stated that in the charge-sheet Section 306 of IPC has not been added. It is further stated that in the charge- sheet, the Investigating Officer nowhere discloses the real motive behind the heinous incident of 11.07.2016 occurred at Una and this is failure on the part of the CID Crime and therefore CBI investigation is required.
8. It is further stated in the said affidavit- in-rejoinder and the affidavit pointing out inadequacy in the charge-sheet filed by the CID Crime that learned Sessions Court as well as this Court has granted regular bail to the concerned accused by observing that the charge-sheet papers Page 7 of 36 HC-NIC Page 7 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER are not sufficient to connect the accused with their role of participation which can dis-entitle them from bail. It is stated that the concerned accused are released on bail because of improper and inadequate investigation carried out by the CID Crime.
9. Learned advocate Ms. Ratna Vora appearing for the petitioner mainly referred to the affidavit- in-rejoinder and the affidavit pointing out the inadequacy in the charge-sheet filed by the CID Crime and submitted that the CID Crime has not properly carried out the investigation. It is submitted that CBI inquiry is necessary because it is required to investigate that there is common conspiracy amongst the Hindu Fanatic Organizations and Shri Sanathan Charitable Trust and other organizations working throughout the India. It is submitted that the investigating agency has not invoked Sections 124A of IPC and Sections 15, 16, 17, 18 and 20 of Unlawful Activities (Prevention) Act in the Charge-sheet. It is further submitted that CBI investigation is required for investigating that why such organizations are terrorizing particular caste and community and what is the main agenda behind their illegal unlawful activities. Whether other police personnels are involved in such conspiracy or not is also required to be investigated. Thus, it has been submitted that though charge-sheet is filed by the CID Crime, there is major lacuna in Page 8 of 36 HC-NIC Page 8 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER the same and said charge-sheet is inadequate and therefore investigation is required to be transferred to CBI.
10. Learned advocate Ms. Vora further submitted that as per the law laid down by the Hon'ble Supreme Court and this Court, the investigation can be transferred to CBI where the police personnels are involved in commission of the crime and where there is a question of national integrity and security is involved. No other submissions are made by learned advocate for the petitioner.
11. In support of the aforesaid submissions, learned advocate has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Rubabhuddin Sheikh v. State of Gujarat and Ors., reported in 2010(1) G.L.H. 601 (SC) and the decision of Punjab & Haryana High Court in the case of Tahir Hasan v. State of Haryana and others, rendered in CRWP No.382 of 2016 (O&M).
12. On the other hand, learned Government Pleader Ms. Manisha Lavkumar submitted that looking to the seriousness of the matter, the respondent State has immediately taken the action and after registration of the FIR on 11.07.2016 with Una Police Station, the investigation was handed over to Deputy Superintendent of Police, Fraud Cell (CID Crime) and a team comprising of said officer Page 9 of 36 HC-NIC Page 9 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER with two other Additional Detective Police Inspectors was formed. The said team has carried out investigation in direct supervision of Superintendent of Police (SP), Admin., CID Crime and Inspector General of Police, Crime-II, CID Crime, Gandhinagar. The said special investigating team has carried out thorough investigation and collected various materials and evidence. Statements of more than 140 witnesses have been recorded under Section 162 of the Code and statements of 10 witnesses have been recorded before the Magistrat under Section 164 of the Code. The learned Government Pleader has referred affidavit-in-reply dated 05.10.2016 filed by Mr. K. G. Saradava, Dy.S.P., Fraud Cell (CID Crime) and from the said affidavit, it has been pointed out that due care has been taken by the investigating team and total 43 accused have been arrested out of which against 37 accused charge- sheet was filed immediately and against 6 accused charge-sheet was subsequently filed. It is contended that other 74 incidents which have occurred after the incident in question occurred at Una, different FIRs were filed. However, it is not proper on the part of the petitioner to contend that investigation of all the aforesaid 74 FIRs is required to be carried out along with the incident in question. Learned Government Pleader further contended that filing of the charge-sheet is always subject to further investigation under Section 173(8) of the Code Page 10 of 36 HC-NIC Page 10 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER and as and when further material is collected, additional charge-sheet will be filed and therefore when the special investigation team has carried out thorough investigation under the supervision of the highest officer of CID Crime viz. Inspector General of Police, Crime-II, CID Crime, Gandhinagar, this Court may not transfer the investigation to CBI as prayed for by the petitioner. It is submitted that investigation can be handed over to CBI in rarest of rare cases as held by the Hon'ble Supreme Court. However, the petitioner has failed to point out that present is a rarest of rare case where the investigation is to be handed over to CBI and therefore present petition be dismissed.
13. In support of the aforesaid contentions, learned Government Pleader has placed reliance upon the following decisions of the Hon'ble Supreme Court:
1. In Secretary, Minor Irrigation & Rural Engineering Services, U.P. And Others v.
Sahngoo Ram Arya And Another, reported in (2002) 5 SCC 521.
2. In Sakiri Vasu v. State of U.P. And others, reported in 2008(2) G.L.H. 269 (SC).
3. In K. V. Rajendran v. Superintendent of Police CBCID South Zone, Chennai & Others, reported in (2013) 12 SCC 480.
4. In K.Saravanan Karuppasmay and another v/s. State of Tamil Nadu and Ors. reported Page 11 of 36 HC-NIC Page 11 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER in (2014) 10 SCC 406.
5. In Sudipta Lenka v/s. State of Odisha and Ors. reported in (2014) 11 SCC 527.
14. Having heard the learned counsel appearing for the parties and having gone through the material produced on record, it transpires that on 11/07/2016, one Nitinkumar Mohanlal Kothari (one of the accused) along with two other persons, who are residents of Una and surrounding area, visited a school at Village: Mota Samadhiyala in connection with a project. After discussion with the Principal of the School of the said village, he inquired for another school. Having existence of another school at nearby village: Bediya, they left the said village and reached at Village Bediya. They did not find any school there and, therefore, after inquiry they returned and started travelling on Kachha road. At that time they saw two persons skinning some dead animals. Nitinbhai Kothari immediately returned on main road and called somebody and informed that certain persons were slaughtering the cows. Pursuant to which, four persons came on two bikes and started inquiry with those persons, who were present at the place. Those persons pretended them as cow vigilantes (Gaurakshaks) and within no time, number of persons gathered at the place and one white colour four wheeler also reached at the said place. Those persons, who had come on the bikes as well as in the car, started Page 12 of 36 HC-NIC Page 12 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER beating up those persons and also attacked two aged persons and a lady. Those persons were taken by those cow vigilantes (Gaurakshaks) in the four wheeler. Subsequently Nitinbhai Kothari along with those two persons left the place. Since one person named Sarvaiya, informed the police control about some mischief being committed at the place of incident (at village: Mota Samadhiyala), and accordingly informed to the control room, which is situated at a place of Ahmedabad. The Control Room informed Una Police Station PSO namely Kanjibhai about the same at around 13:30 hours on the same day. The PSO made an entry in the Register and informed one ASI Kanchanben to visit the place. She along with her writer namely Kasnabhai proceeded to visit the place, where number of persons were gathered. Police Inspector of Una Police Station Mr.Zala informed one of the armed Police Constable, at about 14:15 hours to reach the said village Mota Samadhiyala along with Police Sub-Inspector Mr.Pandey, since he was informed that some more police force is required. Accordingly Police Sub- Inspector Mr.Pandey along with other police personnels visited the village: Mota Samadhiyala, where ASI Kanchanben with her writer was present. He found cow beef in the rickshaw. Around 25 to 30 persons, who were gathered at the place were dispersed from the place of incident. It also appears from the record that two old aged persons and a lady, who had sustained injuries were Page 13 of 36 HC-NIC Page 13 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER already transferred to Una hospital by an ambulance popularly known as 108 Ambulance. Those four persons, who alleged to have been skinning and/or cutting the cows, were taken in a car to Una town, which is around 25 kms. from the said village Mota Samadhiyala. Those persons were taken at bus-stand of Una and their shirts were removed and were tied with rope with the car and were beaten up by number of persons. They were towed towards Una Police Station. When they reached at the police station, a police personnel removed the ropes and kept those injured in the Police Station. The mob of people, who brought the injured, left the place immediately. The injured were thereafter got admitted in the Government Hospital.
15. When Police Inspector Mr.Zala, visited the Una Police Station, he came to know that some persons have been attacked and have sustained several injuries and have been admitted in the Una Hospital, he went to the Hospital and recorded an FIR at around 19:30 hours on 11/07/2016. The said FIR was lodged by one of the injured namely Vashrambhai Balubhai Sarvaiya. It was stated by the said Vashrambhai that he belongs to the scheduled caste and is doing work of skinning animals along with his father, cousins and other relatives. He further disclosed that when his father Balubhai Sarvaiya received a phone call of one Najabhai Danabhai that his cow Page 14 of 36 HC-NIC Page 14 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER was found dead at Village: Bediya and requested to remove the same. He along with his cousins went to Bediya Village and brought the cow in a rickshaw in their village namely Mota Samadhiyala and started skinning the cow. At that time, five persons came in four wheeler white car and told that they were cow vigilantes (Gaurakshaks) and started abusing and questioned why they were cutting the cow. By naming some of the accused, he has further stated that they had started beating with some Babule sticks as well as iron patti (iron pipe). When his father intervened, one of the accused named in the FIR, gave a blow on the head of his father Balubhai Sarvaiya. Thereafter the mobile of his father was looted and complainant and all his cousins were compelled to sit in four wheelers car and gave stick and pipe blow near Rameshwar Patiya and again went to Una Bus stand and they tied with ropes and thereafter they again tied with the car and beaten in public and taken towards Una Police Station and handed over them to the Police. The mob of the people left the place and subsequently the injured were admitted in the Government Hospital. An FIR was lodged for the offence punishable under sections 307, 395, 324, 323, 504 of the Indian Penal Code; section 135 of the Gujarat Police Act and section 3(2)(5) of the Atrocities Act.
16. After the registration of the FIR, since the Page 15 of 36 HC-NIC Page 15 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER charges were levelled against the accused for the offence punishable under the Atrocities Act, the investigation was initially handed over to the Deputy Superintendent of Police as per the provisions of the said Act and Deputy Superintendent of Police, Veraval had taken over the charge of the investigation. Accordingly, he started collecting evidence in the matter. However, on 19.07.2016 the investigation was handed over to Deputy Superintendent of Police , Fraud Cell, CID Crime, State of Gujarat. It is further revealed that looking to the seriousness of the matter a special team of investigation was constituted including Dy.S.P., Fraud Cell, CID Crime and two Additional Detective Police Inspectors. The said investigation has been carried out under the direct supervision of Superintendent of Police (SP), Admin., CID Crime and Inspector General of Police (IGP), Crime-II, CID Crime, Gandhinagar. Thus, it is clear that the respondent State has taken the said matter very seriously and immediately handed over the investigation to the aforesaid investigation team under the supervision of the highest officer of CID Crime.
17. The said investigation team has carried out the investigation and from the record it is clear that during the course of the investigation, the investigating agency has recorded the statement of 140 witnesses under Section 162 of the Code Page 16 of 36 HC-NIC Page 16 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER and statement of 10 witnesses have been recorded before the Magistrate under Section 164 of the Code and during the course of detailed investigation, various evidence and materials were collected. The said aspect has been reflected in the affidavit dated 05.10.2016 filed by the Dy.S.P., Fraud Cell, CID Crime. 43 accused have been arrested and charge-sheet is also filed against the concerned accused. At this stage, it is also relevant to note that looking to the involvement of the police personnels, the investigating agency has also arrested one Police Inspector, one PSI, one Woman ASI and another police officer and filed charge-sheet against the said police personnels also. We have gone through the details given in the affidavit-in-reply dated 05.10.2016 and also the counter of the charge- sheet as well as the other materials produced before us from which we are satisfied that the special investigation team has thoroughly carried out the investigation in an impartial manner. It is required to be noted that though the FIR was registered for the offence punishable under Sections 307, 395, 324, 323, 504 of Indian Penal Code, under Section 135 of Gujarat Police Act and under Sections 3(2)(5) of the Atrocities Act, after the investigation is over, charge-sheet is filed for the offence punishable under sections 307, 397, 395, 365, 355, 354, 342, 147, 148, 149, 324, 323, 504, 506(2), 120(B), 201, 166A, 167, 466, 177, 204, 294(b), 505(1)(b), 509, etc. of Page 17 of 36 HC-NIC Page 17 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER the Indian Penal Code; Section 135 of the Gujarat Police Act; Sections 3(1)(e),(r),(s),(u), 3(2) (5a), 3(1)(d), 3(1)(za)(E), 3(1)(w)(i),(ii), 3(2)
(vi), 3(2)(vii), 4 of the Atrocities Act and Sections 66A & 66B of The Information Technology Act.
18. At this stage, it is required to be noted that the victims/complainants have not filed the present petition but the petition has been filed by the so-called social worker in public interest. The complainant/victim can make request before the concerned Court for further investigation under Section 173(8) of the Code if there is any lacuna in the investigation carried out or if further material is available after filing of the charge-sheet. It is surprising that the petitioner has stated in para 8.6 of the petition that "as per the knowledge information and understanding of the petitioner the victims are very much scared to death and would never come out in open to demand for CBI inquiry." Hence, the petitioner has filed the petition. At this stage, it is also required to be noted that from the material produced by the petitioner i.e. the copies of the orders passed by this Court in various Criminal Misc. Applications filed for regular bail by the concerned accused, it is revealed that such bail applications were opposed Page 18 of 36 HC-NIC Page 18 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER by the original complainant before this Court. Thus, the complainant has opposed the bail applications filed by the concerned accused before this Court. However, the present petition is not filed by the complainant or the victim for transfer of the investigation to CBI.
19. Learned advocate Ms. Vora for the petitioner has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Rubabhuddin Sheikh (supra), wherein the Hon'ble Supreme Court has observed and held in para 48 to 55 as under:
48. In R.S.Sodhi vs. State of U.P. (AIR 1994 SC 38) on which reliance was placed by the learned senior counsel appearing for the writ petitioner, this Court observed :
"We have perused the events that have taken place since the incidents but we are refraining from entering upon the details thereof lest it may prejudice any party but we think that since the accusations are directed against the local police personnel it would be desirable to entrust the investigation to an independent agency like the Central Bureau of Investigation so that all concerned including the relatives of the deceased may feel assured that an independent agency is looking into the matter and that would lend the final outcome of the investigation credibility. However, faithfully the local police may carry out the investigation, the same will lack credibility since the allegations are against them. It is only with that in mind Page 19 of 36 HC-NIC Page 19 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER that we having thought it both advisable and desirable as well as in the interest of justice, to entrust the investigation to the Central Bureau of Investigation."
(Emphasis supplied)
49. This decision clearly helps the writ petitioner for handing over the investigation to the CBI Authorities or any other independent agency. It is an admitted position in the present case that the accusations are directed against the local police personnel in which High Police officials of the State of Gujarat have been made the accused. Therefore, it would be proper for the writ petitioner or even the public to come forward to say that if the investigation carried out by the police personnel of the State of Gujarat is done, the writ petitioner and their family members would be highly prejudiced and the investigation would also not come to an end with proper finding and if investigation is allowed to be carried out by the local police authorities, we feel that all concerned including the relatives of the deceased may feel that investigation was not proper and in that circumstances it would be fit and proper that the writ petitioner and the relatives of the deceased should be assured that an independent agency should look into the matter and that would lend the final outcome of the investigation credibility, however, faithfully the local police may carry out the investigation, particularly when the gross allegations have been made against the high police officials of the State of Gujarat and for which some high police officials have already been taken into custody.
50. It is also well known that when police Page 20 of 36 HC-NIC Page 20 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER officials of the State were involved in the crime and in fact they are investigating the case, it would be proper and interest of justice would be better served if the investigation is directed to be carried out by the CBI Authorities, in that case CBI authorities would be an appropriate authority to investigate the case. In Ramesh Kumari vs. State (NCT Delhi) & Ors. [2006 (2) SCC 677], this Court at Paragraph 8 observed :
"...................We are also of the view that since there is allegation against the police personnel, the interest of justice would be better served if the case is registered and investigated by an independent agency like CBI."
51. In Kashmeri Devi vs. Delhi Administration, (supra), this court held that in a case where the police had not acted fairly and in fact acted in partisan manner to shield real culprits, it would be proper and interest of justice will be served if such investigation is handed over to the CBI authorities or an independent agency for proper investigation of the case. In this case, taking into consideration the grave allegations made against the high police officials of the State in respect of which some of them have already been in custody, we feel it proper and appropriate and in the interest of justice even at this stage, that is, when the charge sheet has already been submitted, the investigation shall be transferred to the CBI Authorities for proper and thorough investigation of the case. In Kashmeri Devi (supra), this Court also observed as follows : -
Page 21 of 36HC-NIC Page 21 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER "Since according to the respondent charge- sheet has already been submitted to the Magistrate we direct the trial court before whom the charge sheet has been submitted to exercise his powers under Section 173(8) Cr. P.C. to direct the Central Bureau of Investigation for proper and thorough investigation of the case. On issue of such direction the Central Bureau of Investigation will investigate the case in an independent and objective manner and it will further submit additional charge sheet, if any, in accordance with law."
52. In Gudalure M.J.Cherian (supra), in that case also the charge sheet was submitted but inspite of that, in view of the peculiar facts of that case, the investigation was transferred from the file of the Sessions Judge, Moradabad to Sessions Judge, Delhi. Inspite of such fact that the charge sheet was filed in that case, this Court directed the CBI to hold further investigation inspite of the offences committed. In this case at Page 400 this court observed :
".......................The investigation having been completed by the police and the charge sheet submitted to the court, it is not for this court ordinarily to reopen the investigation specially by entrusting the same to a specialized agency like CBI. We are also conscious that of late the demand for CBI investigation even in police cases is on the increase. Nevertheless - in a given situation, to do justice between the parties and to instill confidence in the public mind - it may become necessary to ask the CBI to investigate a crime. It only shows the efficiency and the independence of the agency."Page 22 of 36
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53. In this connection, we may reiterate the decision of this Court in the case of P & H High Court Bar Association (supra) strongly relied on by the learned senior counsel appearing for the writ petitioner. A reference of the paragraph of the said decision on which reliance could be placed has already been made in Para No.32 from which it would be evident that in order to do complete justice in the matter and to instill confidence in the public mind, this court felt it necessary to have investigations through the specialized agency like the CBI.
54. Therefore, in view of our discussions made hereinabove, it is difficult to accept the contentions of Mr.Rohatgi learned senior counsel appearing for the state of Gujarat that after the charge sheet is submitted in Court in the criminal proceeding it was not open for this court or even for the High Court to direct investigation of the case to be handed over to the CBI or to any independent agency. Therefore, it can safely be concluded that in an appropriate case when the court feels that the investigation by the police authorities is not in the proper direction and in order to do complete justice in the case and as the high police officials are involved in the said crime, it was always open to the court to hand over the investigation to the independent agency like CBI. It cannot be said that after the charge sheet is submitted, the court is not empowered, in an appropriate case, to hand over the investigation to an independent agency like CBI.
55. Keeping this discussion in mind, that Page 23 of 36 HC-NIC Page 23 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER is to say, in an appropriate case, the court is empowered to hand over the investigation to an independent agency like the CBI even when the charge sheet has been submitted, we now deal with the facts of this case whether such investigation should be transferred to the CBI Authorities or any other independent agency in spite of the fact that the charge sheet has been submitted in court. On this ground, we have carefully examined eight Action Taken Reports submitted by the State Police Authorities before us and also the various materials produced and the submissions of the learned counsel for both the parties. From a careful examination of the materials on record including the eight Action Taken Reports submitted by the State Police Authorities and considering the respective submissions of the learned senior counsel for the parties, we are of the view that there are large and various discrepancies in such reports and the investigation conducted by the police authorities of the State of Gujarat and also the charge sheet filed by the State Investigating Agency cannot be said to have run in a proper direction. It appears from the charge sheet itself that it does not reveal the identity of police personnel of Andhra Pradesh even when it states that Sohrabbuddin and two others were picked up by Gujarat Police Personnel, accompanied by seven personnel of Hyderabad Police. It also appears from the Chargesheet that Kausarbi was taken into one of the two Tata Sumo Jeeps in which these police personnel accompanied the accused. They were not even among the people who were listed as accused.
Mr.Gopal Subramanium, Addl. Solicitor General for India (as he then was) was justified in making the comment that an honest investigating agency cannot plead Page 24 of 36 HC-NIC Page 24 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER their inability to identify seven personnel of the Police Force of the State.
20. Further the decision of Punjab & Haryana High Court in the case of Tahir Hasan (supra) upon which reliance is placed by the learned advocate for the petitioner would not render any assistance to the petitioner as facts of the said case are different.
21. Learned Government Pleader has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Secretary, Minor Irrigation & Rural Engineering Services, U.P. (supra), wherein the Hon'ble Supreme Court has observed in para 6 as under:
6. It is seen from the above decision of this Court that the right to life under Article 21 includes the right of a person to live without being hounded by the Police or the CBI to find out whether he has committed any offence or is living as a law- abiding citizen. Therefore, it is clear that a decision to direct an inquiry by the CBI against a person can only be done if the High Court after considering the material on record comes to a conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency, and the same cannot be done as a matter of routine or merely because a party makes some such allegations. In the instant case, we see that the High Court without coming to a Page 25 of 36 HC-NIC Page 25 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER definite conclusion that there is a prima facie case established to direct an inquiry has proceeded on the basis of 'ifs' and 'buts' and thought it appropriate that the inquiry should be made by the CBI. With respect, we think that this is not what is required by the law as laid down by this Court in the case of Common Cause (supra).
22. In the case of Sakiri Vasu (supra), the Hon'ble Supreme Court has held in para 31 to 33 as under:
"31. No doubt the Magistrate cannot order investigation by the CBI vide CBI vs. State of Rajasthan and another (Supra), but this Court or the High Court has power under Article 136 or Article 226 to order investigation by the CBI. That, however should be done only in some rare and exceptional case, otherwise, the CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them.
32. In the present case, there was an investigation by the G.R.P., Mathura and also two Courts of Inquiry held by the Army authorities and they found that it was a case of suicide. Hence, in our opinion, the High Court was justified in rejecting the prayer for a CBI inquiry.
33. In Secretary, Minor Irrigation & Rural Engineering Services U.P. and others vs. Sahngoo Ram Arya and another 2002 (5) SCC 521 (vide para 6) , this Court observed that although the High Court has power to order a CBI inquiry, that power should only be exercised if the High Court after considering the material on record comes to a conclusion that such material discloses prima facie a case calling for Page 26 of 36 HC-NIC Page 26 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER investigation by the CBI or by any other similar agency. A CBI inquiry cannot be ordered as a matter of routine or merely because the party makes some allegation.
23. In K. V. Rajendran (supra), the Hon'ble Supreme Court has observed and held in para 13 to 17 as under:
"13. The issue involved herein, is no more res integra. This Court has time and again dealt with the issue under what circumstances the investigation can be transferred from the State investigating agency to any other independent investigating agency like CBI. It has been held that the power of transferring such investigation must be in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instil confidence in the public mind, or where investigation by the State police lacks credibility and it is necessary for having "a fair, honest and complete investigation", and particularly, when it is imperative to retain public confidence in the impartial working of the State agencies. Where the investigation has already been completed and charge sheet has been filed, ordinarily superior courts should not reopen the investigation and it should be left open to the court, where the charge sheet has been filed, to proceed with the matter in accordance with law. Under no circumstances, should the court make any expression of its opinion on merit relating to any accusation against any individual. (Vide: Gudalure M.J. Cherian & Ors. v. Union of India & Ors., (1992) 1 SCC 397; R.S. Sodhi v. State of U.P. & Page 27 of 36 HC-NIC Page 27 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER Ors., AIR 1994 SC 38; Punjab and Haryana Bar Association, Chandigarh through its Secretary v. State of Punjab & Ors., AIR 1994 SC 1023; Vineet Narain & Ors., v. Union of India & Anr., AIR 1996 SC 3386; Union of India & Ors. v. Sushil Kumar Modi & Ors., AIR 1997 SC 314; Disha v. State of Gujarat & Ors., AIR 2011 SC 3168; Rajender Singh Pathania & Ors. v. State (NCT of Delhi) & Ors., (2011) 13 SCC 329; and State of Punjab v. Davinder Pal Singh Bhullar & Ors. Etc., AIR 2012 SC 364).
14. In Rubabbuddin Sheikh v. State of Gujarat & Ors., (2010) 2 SCC 200, this Court dealt with a case where the accusation had been against high officials of the police department of the State of Gujarat in respect of killing of persons in a fake encounter and the Gujarat police after the conclusion of the investigation, submitted a charge sheet before the competent criminal court. The Court came to the conclusion that as the allegations of committing murder under the garb of an encounter are not against any third party but against the top police personnel of the State of Gujarat, the investigation concluded by the State investigating agency may not be satisfactorily held.
Thus, in order to do justice and instil confidence in the minds of the victims as well of the public, the State police authority could not be allowed to continue with the investigation when allegations and offences were mostly against top officials. Thus, the Court held that even if a chargesheet has been filed by the State investigating agency there is no prohibition for transferring the investigation to any other independent investigating agency.
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15. In State of West Bengal v. Committee for Protection of Democratic Rights, AIR 2010 SC 1476, a Constitution Bench of this Court has clarified that extraordinary power to transfer the investigation from State investigating agency to any other investigating agency must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigation 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.(See also: Ashok Kumar Todi v. Kishwar Jahan & Ors., AIR 2011 SC 1254).
16. This Court in the case of Sakiri Vasu v. State of UP, AIR 2008 SC 907 held: (SCC p. 416, para 31) "31....This Court or the High Court has power under Article 136 or Article 226 to order investigation by the CBI. That, however should be done only in some rare and exceptional case, otherwise, the CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them." (Emphasis added)
17. In view of the above, the law can be summarised to the effect that the Court could exercise its Constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency like CBI only in rare and exceptional cases. Such as where high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency Page 29 of 36 HC-NIC Page 29 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to instil confidence in the investigation or where the investigation is prima facie found to be tainted/biased.
24. In the case of K.Saravanan Karuppasamy and ors. (supra), the Hon'ble Supreme Court has held and observed in para 18 and 19 as under :-
"18. Insofar as contention of Mr. Bhushan to entrust the matter for further investigation to CBI/SIT is concerned, time and again, it has been reiterated by this Court that such an order to conduct investigation by CBI is not to be passed as a matter of routine merely because the party has levelled allegations against the local police. The extra-ordinary power in handing over investigation to CBI must be exercised cautiously and in exceptional circumstances. In State of West Bengal and Ors. v. Committee for Protection of Democratic Rights, West Bengal and Ors., (2010) 3 SCC 571 : (AIR 2010 SC 1476 : 2010 AIR SCW 1829), a Constitution Bench of this Court held as under:-
"70. Before parting with the case, we deem it necessary to emphasise 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. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be Page 30 of 36 HC-NIC Page 30 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER 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 extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil 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 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 investigations".
19. Legal education has a direct impact on the prestige of the legal profession. It is a matter of concern that such an unfortunate incident should have happened within the precincts of Law College, Chennai which has produced many eminent lawyers and legal luminaries. We feel that the matter should have been addressed by the police and the State with great concern and promptitude. Though the matter was not proceeded in the way in which it should have been proceeded with, we feel that at this distant point of time, it is not necessary to hand over the investigation to CBI or to SIT. The reason being criminal cases have been registered and charge-sheets are also filed and departmental action was also initiated against the police personnel and punishment though may be nominal was imposed on those police personnel. Since charge-sheets in all three cases have already been filed before Page 31 of 36 HC-NIC Page 31 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER the VIIth Metropolitan Magistrate Court, George Town, Chennai, one of which is already taken on file, in our view, it would suffice if we direct the VIIth Metropolitan Magistrate Court, George Town, Chennai to proceed with the matter expeditiously."
25. In the case of Sudipta Lenka (supra), the Hon'ble Supreme Court has held and observed in para 13 and 15 as under :-
"13. On the question whether a criminal case in which a charge-sheet has been filed by the local/State investigating agency can/should be referred to Central Bureau of Investigation for further investigation there is near unanimity of judicial opinion. In Gudalure M.J. Cherian v. Union of India2and Punjab and Haryana High Court Bar Association v. State of Punjab3, it has held that after the charge-sheet is filed the power to direct further investigation by Central Bureau of Investigation should not be normally resorted to by the Constitutional Courts unless exceptional circumstances exist either to doubt the fairness of the investigation or there are compulsive reasons founded on high public interest to do so. Vineet Narain v. Union of India4, Union of India v. Sushil Kumar Modi5and Rajiv Ranjan Singh 'Lalan' (8) v. Union of India6are not decisions on the same line as the issue in the said cases was with regard to the exercise of jurisdiction by the Monitoring Court to order further investigation of a case after charge-sheet had been filed by the Central Bureau of Investigation to which body the investigation already stood entrusted.
14....x.x.x
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15. The position has also been succinctly summed up in Disha, (AIR 2011 SC 3168) (supra) to which one of us (the learned Chief Justice) was a party by holding that transfer of the investigation to the Central Bureau of Investigation or any other specialised agency, notwithstanding the filing of the charge-sheet, would be justified only when the Court is satisfied that on account of the accused being powerful and influential the investigation has not proceeded in a proper direction or it has been biased. Further investigation of a criminal case after the charge-sheet has been filed in a competent court may affect the jurisdiction of the said Court under Section 173 (8) of the Code of Criminal Procedure. Hence it is imperative that the said power, which, though, will always vest in a Constitutional Court, should be exercised only in situations befitting, judged on the touchstone of high public interest and the need to maintain the Rule of Law."
26. There is no dispute with regard to proposition that investigation can be transferred to CBI after filing of the charge-sheet. However, it would be justified only when the Court is satisfied that on account of the accused being powerful and influential the investigation has not proceeded in a proper direction or it has been biased. As held by the Hon'ble Supreme Court, further investigation of a criminal case after the charge-sheet has been filed in a competent court may affect the jurisdiction of the said court under Section 173(8) of the Code Page 33 of 36 HC-NIC Page 33 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER of Criminal Procedure. Hence, it is imperative that such powers though vested in constitutional court should be exercised only in rarest of rare case.
27. From the aforesaid decisions rendered by the Hon'ble Supreme Court, it can be said that this Court can exercise its powers for transferring investigation from the State Investigating Agency to CBI only in rare and exceptional cases e.g. where high officials of the State Authorities are involved or the accusation itself is against the high officials of the investigating agency thereby allowing them to influence the investigation or where it is so necessary to do justice and to instil confidence in the investigation or where the investigation is prima facie found to be biased.
28. Thus, keeping in mind the aforesaid principle of law laid down by the Hon'ble Supreme Court, if the facts of the present case as discussed hereinabove are examined, it can be said that in the present case the respondent - State has constituted a Special Investigation Team headed by Dy.S.P., Fraud Cell, CID Crime with two Additional Detective Police Inspectors under the direct supervision of Superintendent of Police (SP), Admin., CID Crime and Inspector General of Police, Crime-II, CID Crime, Gandhinagar. In the Page 34 of 36 HC-NIC Page 34 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER present case, it is not alleged that the high police officials of the State or the investigating agency are involved in the commission of the aforesaid crime. The petitioner has failed to establish that the accused are powerful and influential and therefore, the investigation has not proceeded in proper direction or investigation is biased. From the material produced on record, it cannot be said that the investigation is prima facie biased or tainted. When the specialized investigation team of CID Crime has carried out the investigation in an impartial manner whereby other provisions of IPC as well as Atrocities Act and Information Technology Act are added while filing the charge-
sheet and charge-sheets are filed against 43accused persons, we are of the view that petitioner has failed to point out that the present is a rarest of rare case wherein the investigation is required to be transferred to CBI.
29. From the affidavit-in-reply filed by the Dy.S.P., Fraud Cell, CID Crime, it is revealed that after filing of the charge-sheet before the Magistrate, case has been committed before the Sessions Court set up by the State Government. Thus, when Special Sessions Court is ceased of the matter, no further direction is required to Page 35 of 36 HC-NIC Page 35 of 36 Created On Fri Apr 14 02:48:22 IST 2017 C/WPPIL/164/2016 CAV ORDER be given to the respondent No.1 to set up Fast Track Court to deal with case registered as FIR bearing C.R.No.I-127/2016 at Una Police Station. At this stage it is required to be noted that learned advocate for the petitioner has not made any submission with regard to said relief prayed for in the petition.
30. In view of the aforesaid discussions, we are of the opinion that this is not a rarest of rare case as held by the Hon'ble Supreme Court in which the investigation is required to be transferred to CBI. Accordingly, we see no reason to grant the reliefs prayed for in the petition. Hence, the petition is dismissed.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Jani Page 36 of 36 HC-NIC Page 36 of 36 Created On Fri Apr 14 02:48:22 IST 2017