Gujarat High Court
Sit vs Samima
Author: Jayant Patel
Bench: Jayant Patel
CR.MA/15981/2010 148/ 148 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 15981 of 2010 In CRIMINAL MISC.APPLICATION No. 9832 of 2010 In SPECIAL CRIMINAL APPLICATION No. 1850 of 2009 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether 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 ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SIT - THRO' KARNAL SINGH - IPS - Applicant(s) Versus SAMIMA 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, ========================================================= 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) 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.
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 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 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 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 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 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.
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 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."
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 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 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 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 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 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.
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 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 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 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 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 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 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:-
"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 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 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 - 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 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 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 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 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 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 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.
(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.
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 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 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 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 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 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, 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 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.
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 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 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. 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 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 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 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, 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:-
(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 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 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 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 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 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 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 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 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. 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 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 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." (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 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 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."
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 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 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.
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.
The progress report shall be submitted in sealed cover on 14.07.2011. S.O. to 15.07.2011.
It is further directed that the investigation shall continue in the meantime.
The sealed cover report shall be kept in the safe custody of the Registrar (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 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. 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. 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 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 :-
"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 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 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 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 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 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 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.
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 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 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 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.
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:-
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.
We have hard Mr.Mukul Sinha, learned Counsel appearing for the applicant, Mr.Kamal Trivedi, learned Advocate General with Mr.P.K. Jani, learned Government Pleader for the State and Mr.Lakhani, learned Counsel for SIT. The presence of CBI is not required at this stage.
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.
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 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 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 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."
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. 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 instructions Raju Jeerawala had been called."
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 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. ..."
The other part may not be relevant at this stage.
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 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 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.
As we have recorded earlier, there was a rift between the two Members of SIT namely; Shri Mohan Jha and Shri Satish 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 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 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.
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 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.
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.
It appears that in view of the aforesaid direction, the prayer D of the application for submission of separate 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.
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 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 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 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:-
The materials on record do not support the facts and circumstances mentioned in the FIR.
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 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 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 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 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 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 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 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 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 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 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 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 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, 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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, 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 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.
(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 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 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.
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