We as humans enjoy gossip. This is natural. This habit is omnibus and so banal that people not having slightest conversance with subject matter make statements and give opinion - many times on blogs, news sites etc.
Recently political atmosphere has heated up with ex minister Amit Shah joining the brigade of accused involving very serious offenses. Mr. Shah is from BJP - ruling party of the Gujarat State Government and had to step down off late recently.
The BJP claims that the investigation is Congress sponsored (a rival party to BJP and ruling the Central Government). The CBI is being misused says BJP. The Congress in turn responded by saying it had nothing to do with the issue and what happened has hapened on directions of Supreme Court of India.
The question is - What did Supreme Court say in the matter?
Answer can be found from the reportable judgment given and reproduced hereunder. For those interested beyong rumors and street gossips, the judgment is produced hereunder.
Speaking while standing apart from political stochasticity - for a moment all those not connected with politics must realize importance of respecting verdict of Supreme Court and following what it said. Politicians as they are - will remain what they and they cut across all party lines. So let us read and understand - what the Court stated.
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) NO.6 OF 2007
Rubabbuddin Sheikh ...Petitioner
Versus
State of Gujarat & Ors. ...Respondents
WITH
WRIT PETITION (CRL.) NO.115 OF 2007
WITH
CONTEMPT PETITION (CRL.)NO.8 OF 2007 IN WRIT PETITION (CRL.)
NO.6 of 2007
JUDGMENT
TARUN CHATTERJEE, J.
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 21st of January, 2007. After about six months and
after several reminders, the Director General, Police, Gujarat,
directed Ms. Geetha Johri, Inspector General, Police (Crime),
to inquire about the facts stated in the letter. A case was
registered as Enquiry No. 66 of 2006. From 11th of September,
2006 to 22nd of January, 2007 four Interim Reports were
submitted by one V.L. Solanki, Police Inspector, working
under Ms. Johri.
2. In the present writ petition, the writ petitioner seeks a
direction for investigation by the Central Bureau of
Investigation (in short the `CBI') into the alleged abduction and
fake encounter of the brother of the writ petitioner
Sohrabuddin by the Gujarat Police Authorities. The writ
petitioner also seeks the registration of an offence and
investigation by the CBI into the alleged encounter of one
Tulsiram, a close associate of Sohrabuddin, who was allegedly
used to locate and abduct Sohrabuddin and his wife Kausarbi,
and was thus a material witness against the Police personnel.
The writ petitioner further seeks a writ of habeas corpus to
produce Kausarbi, the sister-in-law of the writ petitioner.
3. As noted herein above, out of the four interim reports
submitted by one V.L.Solanki, Police Inspector, working under
Ms. Johri, only one report was submitted initially in this
Court. It was only on 16th of May, 2007 that the other three
reports were submitted.
4. In the Report submitted on 12th of May, 2007, by
Ms.Johri, it has been stated as follows:
"However, based on the statement of various
witnesses and subsequent identification of the
photographs of Sohrabuddin and Kausarbi taken
by Inquiry Team of CID Crime there appears to
be some discrepancy regarding the presence of
Sohrabuddin and Kausarbi at Hyderabad and
Ahmedabad which needs to be further enquired
into. Further enquiry also needs to be conducted
with regards (1) who were the persons who
claimed to be police who picked up the three
passengers namely Sohrabuddin, Kausarbi and
third unknown person. (2) what happened to
Kausarbi after 22.11.2005 when the so-called
police personnel took her off the bus."
5. In the same report, Ms. Johri sought permission to
interrogate one Tulsiram who was at that time in Rajasthan
Jail. From the record, it appears that on 27th/28th of
December, 2006, an FIR was lodged in which it was stated
that when Tulsiram was sent on transit remand from
Rajasthan to Gujarat, two armed persons rescued him at gun
point and fled with Tulsiram. In the said FIR, it has been
alleged that while search was launched to locate Tulsiram
early in the next morning, he, along with two other persons,
was spotted on a highway trying to stop a matador van. It has
also been alleged, that one of the police officers who was
following the matador in which Tulsiram was traveling,
accosted him, upon which Tulsiram was said to have fired at
the Police officer and the bullet was said to have hit the
mudguard of the vehicle. The Police Officers were said to have
fired at Tulsiram in self-defence, killing him. However, the
other two persons somehow managed to escape in the
darkness.
6. One Mr. Raigar, Additional Director General of Police and
Head of CID Gujarat Police who was in-charge of the
investigation on the incident of death of Sohrabuddin and
disappearance of Kausarbi was replaced by one Mr. O.P.
Mathur, Additional Director General of Police (prison) who was
given an additional charge as Head of CID.
7. Ms. Johri was replaced by Mr. Rajneesh Rai, Deputy
Inspector General, as an Investigating Officer in respect of the
fake encounter relating to the incident of Sohrabuddin's case
and disappearance of Kausarbi.
8. The Writ Petitioner had, on an earlier occasion, filed a
petition under Article 32 of the Constitution of India, praying
for a direction to the Gujarat police to produce Kausarbi and
for a fair and impartial investigation in both the episodes by
the CBI so that the matter goes beyond the influence of the
local police. On the said application, while issuing a notice to
the Union of India, this Court on 22nd of January 2007
requested Mr. Gopal Subramanium, learned Addl. Solicitor
General for India, (as he then was) who was present in the
Court, to take instructions in the matter, in the meantime.
9. Subsequently, by another order dated 19th of March
2007, this Court issued a notice to the State of Gujarat which
was made returnable on 23rd of March 2007. It is evident from
the said order that the State of Gujarat was asked to produce
the relevant records on 23rd of March 2007. When the matter
came up before it on 23rd of March 2007, the learned senior
counsel for the respondent State submitted that as regards
some of the police officers who were involved in the alleged
acts, some of the details were collected by the State and after
the full details were available further action would be taken in
the matter. It was also submitted that the State would be
writing to the Government of Madhya Pradesh for giving
protection to the writ petitioner, residing at Village Jharnia
Sheikh, Dist Ujjain, M.P. Three weeks time was granted to the
State to file a report in a sealed cover. In the meantime, the
report submitted by the Additional Solicitor General for India,
(as he then was), was perused and placed on record. The
matter came up again on 20th of April 2007 for consideration
before this Court. A week's time was granted to enable the
State of Gujarat to make submissions on the report submitted
by Additional Solicitor General for India (as he then was), a
copy of which was ordered to be supplied to the learned
Counsel for the State of Gujarat and other parties.
10. On 27th of April 2007, the State of Gujarat submitted an
interim report on the investigation conducted by them in
pursuance of the orders of this Court dated 22nd of January,
2007, 19th of March 2007, 20th of March, 2007 and 23rd of
April 2007.
11. At that point of time, it was submitted by the learned
counsel for the State of Gujarat before this Court that if some
more time was granted, a comprehensive status report or
Action Taken Report could be submitted before this Court. The
learned Attorney General for India submitted that in view of
the serious nature of the offence in which some highly placed
police officials of the State of Gujarat were alleged to have been
involved, orders may be immediately passed directing the CBI
to take charge of the investigation and report to this Court.
12. This Court, by an order dated 3rd of May, 2007 ordered
that some more time may be granted to the State of Gujarat
before any further action was taken in the matter. However,
after going through the Interim Report of the Additional
Solicitor General and also the Interim Status Report filed by
the State of Gujarat, this Court held the view that a prima
facie case was made out for issuance of a Rule Nisi calling
upon the Union of India and the State of Gujarat to show
cause why the order prayed for should not be granted and also
as to why a writ of Habeas Corpus should not be issued to
produce Kausarbi in Court. At that stage, learned senior
counsel appearing for the State of Gujarat brought to the
notice of the court that the body of Kausarbi was disposed of
by burning it in village Illol, Sabarkantha District', which fact
was brought on record in the Action Taken Report No. 3
submitted on 30th of April, 2007. In that view of the matter at
that stage, this Court restrained itself from issuing a formal
writ. The State of Gujarat was directed to submit the final
status report within two weeks from that date. An allegation
was made that Ms.Johri was taken off the investigation for
some reasons best known to the State Authorities. The State of
Gujarat was directed to submit a report in that regard also.
13. When the matter came up for hearing before this Court
on 17th of May, 2007, Learned Attorney General for India
again submitted before us that this was a fit case where this
Court should pass an order directing handing over the
investigation from the State Investigating Agency to CBI as the
investigation would not only be made in the State of Gujarat,
but also in the States of Andhra Pradesh and Rajasthan and
for such investigation, cooperation of the State of Rajasthan
and State of Andhra Pradesh and their high police officials
may be required. Therefore, according to Attorney General for
India, it would be difficult for the Investigating Agency of the
State of Gujarat to make proper and thorough enquiry and
submit a report to this Court. Mr. Ahmadi, learned counsel
appearing on behalf of the writ petitioner also submitted that
this Court should direct the CBI to take over the investigation
at the same time permitting Ms.Johri and Mr. Rajneesh Rai to
make the investigation jointly and submit a report to this
Court. Mr. Gopal Subramanium, learned Addl. Solicitor
General for India (as he then was) also agreed with the
submissions of Mr.Ahmadi that it was a fit case for handing
over the investigation to CBI from the State of Gujarat.
14. From the Action Taken Report No. 4 submitted before
this Court on 14th of May, 2007, it was found that the
assistance of Directorate of Forensic Science, Gujarat State,
and BJ Medical College, Ahmedabad has been sought to
obtain advice on the exhibits collected from the scene of
offence. Permission of the Court was also sought for
microanalysis and other related tests in case of the accused
namely, (1) Shri D.B. Vanzara, IPS, Ex-DIG of Police, Border
Range, Kutch-Bhuj, (2) Shri Rajkumar Pandyan, Ex-SP, CID,
IB and (3) Shri Dinesh MN, IPS, SP, Alwar, Rajasthan. The
application was pending then. In Action Taken Report No. 4, it
was also stated that efforts were being made to arrest the
remaining accused officers and men against whom there was
prima facie evidence. Efforts were being made to trace the
remains of Kausarbi. A well where reportedly the remains of
Kausarbi were disposed of was dug up and samples collected
were sent to Forensic Science Laboratory, Gandhinagar for
further analysis and for comparison with the soil samples
taken from the scene where the body of Kausarbi was alleged
to have been disposed of by burning at Illol Village,
Sabarkanta District, in the State of Gujarat. From the Action
Taken Report No. 4 it appeared that the following
investigations were still awaited:
a. Andhra Pradesh Police Personnel who helped the
ATS, Gujarat in picking up the accused was yet to be
identified. Cooperation of DGP & IGP, Andhra Pradesh
was enlisted in this regard.
b. Apprehension of accused of Rajasthan for which
help of DGP & IGP Rajasthan was enlisted.
c. Reports from Directorate of Forensic Science,
Gujarat State.
d. Identification of the farm house to which Kausarbi
was shifted and method by which she might have died
and those involved in the crime, if any.
15. From the aforesaid report, it also appeared that the
charge sheet shall be filed as soon as the evidence came on
record. It was observed by this Court at that point of time that
on a perusal of the materials already brought on record, it was
difficult to conclude at that stage that the investigation was
not proceeding towards correct direction. At that stage, we did
not find it appropriate to direct the State of Gujarat to include
Mr. Raigar with Ms. Johri for completing the investigation.
16. At that stage, it was submitted before this Court by the
learned senior counsel appearing for the state of Gujarat that
the final report would be submitted within four to six weeks
from 15th of May, 2007.
17. Fifth Action Taken Report was dated 2nd of July, 2007. In
this report, taking a departure from what was stated in the
Fourth Action Taken Report, Ms.Johri stated that the Andhra
Pradesh Police authorities had denied any official involvement
of Andhra Pradesh Police Personnel. Examining 194 witnesses,
they had been able to array another six persons as accused.
Against the order of the Metropolitan Court rejecting
permission of the Court for conducting the NARCO Analysis
test of six accused persons, an appeal had been filed in the
Sessions Court.
18. The body of Kausarbi was cremated on 29th of November,
2005 in Illol village. The assistance of Directorate of Forensic
Science was sought to establish whether soil samples collected
from Illol village contained any remains of a human body. As
per FSI dated 28th of May, 2007, nothing incriminating was
found.
19. The investigation was pending with respect to i) Arrest of
two police personnel ii) To establish the identity of Andhra
Pradesh Police personnel who might have unofficially helped
ATS officials.
20. Charge sheet was proposed to be filed within prescribed
time frame against the accused who was arrested.
21. On 16th of July, 2007, this Court directed that a copy of
the charge sheet must be supplied to the Addl. Solicitor
General for India (as he then was) after taking note of the fact
that the 6th Action Taken Report dated 14th of July, 2007 was
filed in court. This Report reiterated the stand that no official
assistance was rendered by Andhra Pradesh Police to ATS
Gujarat. Charge sheet had been filed in the Court of Chief
Metropolitan Magistrate against 13 accused for Criminal
Conspiracy, abduction, wrongful confinement, murder etc. 13
have been arrested. One of the 13 accused whose names had
been listed is one Mr. N.V. Chauhan, PSI who, in the previous
ATR, had been mentioned as yet to be arrested. However, the
name of one Mr. Jadeja, Driver PC who was also supposed to
be arrested as per previous ATR, did not appear among the
names of the accused who were arrested. Evidently, he had
not been charge sheeted.
22. The motives for killings was attributed as "name, fame
and promotion", in case of Sohrabuddin's death and
"destruction of evidence", in Kausarbi's case.
23. The report expressly states that no link of Tulsiram
Prajapati had been established in this case. The third person
who was abducted was not to be said Tulsiram Prajapati.
24. Ms.Johri also stated that the investigation had been
carried on in a fair and impartial manner under her direct
supervision.
25. It was stated that the writ petitioner did not cooperate
with the investigation. It is also stated that copies of ATR
cannot be supplied as the same would help the accused.
26. On 2nd of August, 2007, the Seventh Action Taken Report
was filed, which stated that the third person who was picked
up was one Kalimuddin, who was suspected to be an informer
of Police. He could be hiding somewhere, unharmed. It again
detailed the efforts of the State CID (Crime) to make sure that
none of the accused goes scot-free. Accused Police Officers,
irrespective of their rank, had been arrested. They were
suspended or transferred to avoid their interference with the
case. Police personnel themselves had deposed against the
accused Police officers. No anticipatory bail was granted to any
of the accused.
27. Mr. Jadeja was the one who had first revealed the name
of N.K.Amin on 26th of April, 2007.
28. The accused had challenged subjecting them to NARCO
analysis and the matter was pending before the Court. The
Report submitted that analyzing the voluminous details of the
calls made by the accused, collected from various service
providers, would take time. It was also urged that the Habeus
Corpus filed by Rubabbuddin Sheikh does not survive as
Kausarbi's body was found to be cremated.
29. On 15th of September, 2008, Ms. Johri filed the Eighth
Action Taken Report. It mentioned that a supplementary
charge sheet was filed on 10th of December, 2007. It also
detailed the status of bail applications rejected or pending. The
Writ Petitioner filed an application in the Sessions Court,
which was partly allowed and the Investigating Officer Police
Inspector Shri. D.H.Trivedi, was directed to carry out further
investigation under Section 173(8) of the Code of Criminal
Procedure within 90 days.
30. The details of communication between the witnesses and
the owner of the Crane which was sent to pull out the tempo
which got bogged while carrying firewood for the cremation of
Kausarbi's body were revealed. The call details revealed the
movements of the accused, their connection between each
other, and the wrongful confinement of Kausarbi and
Sohrabbuddin in Disha farm.
31. In order to establish motive as mentioned in the charge
sheet, details of 15 criminal cases in which Sohrabbuddin was
involved were collected. Efforts were still made to trace
Kalimuddin and to identify the Police officers and men of
Andhra Pradesh who had allegedly helped the accused though
no involvement of the Police Personnel of Andhra Pradesh was
suspected. On the question of NARCO Analysis, the matter
was heard by this Court and the judgment was kept reserved.
FSL Gujarat had stated that NARCO Analysis would be
conducted only with the consent of the accused. The
Investigating Officer was asked to move the High Court in the
matter.
32. After eight Action Taken Reports were submitted and
objections thereto were also filed by the parties, the writ
petition came up for final hearing for the purpose of deciding
whether in the facts and circumstances of the present case, it
would be just and proper to transfer the case to the CBI
Authorities for the purpose of investigation into the allegations
made on behalf of the writ petitioner. On this aspect of the
matter, we have heard Mr.Dushyant Dave, learned senior
counsel for the writ petitioner and Mr.Gopal Subramanium,
learned Solicitor General for India, who appeared as Amicus
Curiae and Mr.Mukul Rohtagi, learned senior counsel for the
State of Gujarat and other learned counsel appearing for the
parties. After hearing the learned senior counsel and after
going through the eight Action Taken Reports and other
materials on record, two questions were articulated by the
learned counsel for the parties - one is whether after the
charge sheet was submitted by the police and the trial was
going on, under that circumstances whether the investigation
can be transferred to the CBI Authorities. Secondly, it was
argued that in respect of the fact that eight Action Taken
Reports were submitted but from the said reports, it would be
clear that the Police Authorities of the State of Gujarat were
not taking proper action in the matter although some of their
high police officials were taken to custody. Therefore, let us
first consider the first question, namely, whether investigation
can be transferred to CBI Authorities or any other independent
agency when the charge sheet has already been submitted. In
support of his contention that the investigation can be
transferred to the CBI Authorities when the charge sheet in
the criminal proceeding was already filed, reference was made
to in Kashmeri Devi vs. Delhi Administration & Anr. [AIR
1988 SC 1323] by the learned senior counsel for the writ
petitioner. He also relied on a decision of this court in the case
of Inder Singh vs. State of Punjab & Ors. [1994 (6) SCC
275] in which this Court held that the enquiry should be
transferred to the CBI Authorities for investigation in view of
the fact that the police authorities had not been able to locate
the whereabouts of the abducted persons. Therefore, these
decisions were cited by the learned counsel for the writ
petitioner to show that even after the charge sheet has been
filed in the Court of Competent Jurisdiction, this Court is
empowered to direct the CBI Authorities or any other
independent agency to take over the investigation from the
police authorities. The learned counsel for the writ petitioner
also placed strong reliance on a decision of this Court in the
case of Gudalure M.J.Cherian & Ors. vs. Union of India
[1992 (1) SCC 397] from which it also appears that although
the charge sheet was filed in that case, this Court directed the
CBI to hold further investigation in respect of the offence so
committed. Similar is the question raised in P & H High
Court Bar Association vs. State of Punjab & Ors. [AIR 1994
SC 1023] in which case also the investigation was handed over
to the CBI Authorities after the charge sheet was submitted in
the court. While making such order, this Court observed :
"The High Court was wholly unjustified in closing
its eyes and ears to the controversy which had
shocked the lawyer fraternity in the Region. For
the reasons best known to it, the High Court
became wholly oblivious to the patent facts on the
record and failed to perform the duty entrusted to
it under the Constitution. After giving our
thoughtful consideration to the facts and
circumstances of this case, we are of the view that
the least the High Court could have done in this
case was to have directed an independent
investigation/enquiry into the mysterious and
most tragic abduction and alleged murder of
Kulwant Singh, Advocate and his family.
We are conscious that the investigation
having been completed by the police and
charge-sheet submitted to the court, it is not
for this Court, ordinarily, to reopen the
investigation. Nevertheless, in the facts and
circumstances of the present case, to do
complete justice in the matter and to instill
confidence in the public mind it is necessary,
in our view, to have fresh investigation in
this case through a specialised agency like
the Central Bureau of Investigation (CBI)."
33. Accordingly, the learned senior counsel appearing for the
writ petitioner submitted that even if the charge sheet was
submitted it was still open to the court to direct investigation
to be made by the CBI Authorities and accordingly in view of
the above position in law, this Court, considering the facts and
circumstances of the present case, should direct the CBI
Authorities to investigate the offences alleged to have been
committed by some of the police authorities of the State of
Gujarat and submit a report if this Court is of the view that
the State Police Authorities who had already filed eight Action
Taken Reports had not done such investigation in the proper
direction nor had they investigated in a fair and proper
manner.
34. This submission of the learned senior counsel for the writ
petitioner was hotly contested by Mr.Mukul Rohtagi, learned
senior counsel who appeared for the State of Gujarat.
According to Mr. Rohtagi, after the charge sheet was
submitted in court, it was not open to the court to hand over
the investigation to the CBI or any other independent agency
and in support of that contention a decision of this Court in
the case of Vineet Narayan & Ors. vs. Union of India [1996
(2) SCC 199] was relied on. In this decision, this Court
observed:
"In case of persons against whom a prima facie
case is made out and a charge-sheet is filed in the
competent court, it is that Court which will then
deal with that case on merits, in accordance with
law.
However, if in respect of any such person the
final report after full investigation is that no prima
facie case is made out to proceed further, so that
the case must be closed against him, that report
must be promptly submitted to this Court for its
satisfaction that the authorities concerned have
not failed to perform their legal obligations and
have reasonably come to such conclusion. No such
report having been submitted by the CBI or any
other agency till now in this Court, action on such
report by this Court would be considered, if and
when that occasion arises."
35. Subsequent to the aforesaid decision of this Court,
another decision of this Court, namely, Union of India vs.
Sushil Kumar Modi [1998 (8) SCC 661] was relied on by
Mr.Rohatgi, learned senior counsel in which this Court
observed after considering and following the decision in Vineet
Narayan's case that once a charge sheet is filed, the
adequacy or otherwise of the charge sheet and the
investigation cannot be gone into by this Court under Article
32 of the Constitution of India and the only remedy which can
be pursued if any aggrieved party feels that in some areas the
investigation is inadequate is an application under Section
173 (8) of the Code of Criminal Procedure. This Court observed
as follows:
"This position is so obvious that no discussion of
the point is necessary. However, we may add that
this position has never been doubted in similar
cases dealt with by this Court. It was made clear
by this Court in the very first case, namely, Vineet
Narain v. Union of India that once a chargesheet is
filed in the competent court after completion of the
investigation, the process of monitoring by this
Court for the purpose of making the CBI and other
investigative agencies concerned perform their
function of investigating into the offences
concerned comes to an end and thereafter it is
only the Court in which the charge sheet is filed
which is to deal with all matters relating to the
trial of the accused including matters falling
within the scope of Section 173(8) of the Code of
Criminal Procedure. We make this observation
only to reiterate this clear position in law so that
no doubts in any quarter may survive. It is
therefore clear that the impugned order of the High
Court dealing primarily with this aspect cannot be
sustained."
36. Another decision of this Court which was strongly relied
on by Mr.Mukul Rohatgi, learned senior counsel appearing for
the State of Gujarat is the decision in Rajiv Ranjan Singh
`Lalan' (VIII) and Anr. Vs. Union of India & Ors. [2006 (6)
SCC 613]. In this decision referring to the case of Sushil
Kumar Modi (supra) and Vineet Narayan (supra), this court
held :
"It is thus clear from the above judgment that once
a charge-sheet is filed in the competent Court after
completion of the investigation, the process of
monitoring by this Court for the purpose of making
CBI and other investigative agencies concerned
perform their function of investigating into the
offences concerned comes to an end and
thereafter, it is only the Court in which the charge-
sheet is filed which is to deal with all matters
relating to the trial of the accused including
matters falling within the scope of Section 173(8).
We respectfully agree with the above view
expressed by this Court. In our view, monitoring of
pending trial is subversion of criminal law as it
stands to mean that the Court behind the back of
the accused is entering into a dialogue with the
investigating agency. Therefore, there can be no
monitoring, after the charge sheet is filed."
37. Mr.Rohatgi, learned senior counsel appearing for the
State of Gujarat had then drawn our attention to another
decision of this Court in the case of Hari Singh vs. State of
U.P. [(2006) 5 SCC 733] in which it was held that when there
is a remedy provided under the Code of Criminal Procedure,
1973, the CBI Authorities cannot be directed to investigate
into the matter.
38. Before we take up the decisions cited at the Bar from the
side of the writ petitioner, we may deal with the decisions cited
by Mr.Rohatgi, learned senior counsel appearing for the State
of Gujarat. The first decision is Vineet Narayan (supra). In
that case, it was alleged that the CBI and the Revenue
Authorities had failed to perform their duties and legal
obligations inasmuch as the investigation into "Jain Diaries"
seized in raids conducted by the CBI is concerned.
39. From a careful examination of this decision of this Court
relied on by the learned senior counsel appearing for the
respondent, we are not in a position to say that the said
decision has clearly held that after the charge sheet is
submitted, the question of handing over the investigation of
the criminal case to the CBI cannot arise at all. From that
decision, it is clear that the CBI and the Revenue Authority
had failed to perform their duties and legal obligations
inasmuch as the investigation into `Jain Diaries' seized in
raids conducted by the CBI was concerned. Therefore, we are
unable to accept the contention of Mr.Rohatgi that this
decision can at all help the State of Gujarat to substantiate
their argument that after the charge sheet is filed in court,
there was no question that the investigation cannot be handed
over to the CBI authorities. So far as the decision cited by
Mr.Rohatgi in Union of India vs. Sushil Kumar Modi (supra)
is concerned, it is clear that the said decision was rendered
following the decision in the case of Vineet Narayan (supra).
In view of our discussions made in respect of the Vineet
Narayan's case, we do not think that any advantage could be
taken by the State of Gujarat to hold that after the charge
sheet is submitted it was not open for the court to hand over
the investigation to an independent agency.
40. In Vineet Narayan's case (supra), the fact was that the
investigation was already with the CBI Authorities and in that
investigation charge sheet was submitted. In that context, this
Court observed that once the charge sheet has been
submitted, the CBI Authorities cannot approach the High
Court for issuance of directions in such investigation where
the charge sheet was already submitted.
41. In Sushil Kumar Modi (supra), we find that the
investigation was also with the CBI and charge sheet in that
investigation was submitted, therefore, this Court in Sushil
Kumar Modi(supra) observed that there was no occasion for
any of the officer of the CBI to approach the High Court or for
the Division Bench of the High Court to issue any directions,
oral or otherwise, for seeking the aid of the army for execution
of the warrant against Shri Lalu Prasad Yadav. Again in Para 7
of the decision in Sushil Kumar Modi's case (supra), it would
be evident that the CBI Authorities were investigating the
offences and that is the reason this Court observed that after
the charge sheet was filed, no directions can be taken by the
CBI Authorities or its officers from the High Court or this
Court as the case may be. This is not the case before us. It is
true that in the present case, the charge sheet has already
been submitted but that does not debar, in our view, this
court from handing over the investigation to the CBI
Authorities.
42. So far as Rajiv Ranjan Singh's case (supra) which was
relied on by Mr.Mukul Rohatgi, learned senior counsel for the
State of Gujarat, is concerned, we find that this decision was
also rendered relying on Sushil Kumar Modi's case (supra)
and Vineet Narayan's case (supra) as noted herein earlier. In
that case also, the process of monitoring by this Court for the
purpose of making the CBI investigating agency perform their
functions and investigate into the offence would come to an
end but it is repeated that in the present case the question is
whether an investigation can be handed over to the CBI
authorities even if the charge sheet is submitted. The question
of monitoring investigation by the CBI Authorities in all the
three cases cited by Mr.Rohatgi in the facts and circumstances
of the present case cannot arise at all.
43. It was next contended by Mr.Rohatgi, learned senior
counsel for the State of Gujarat that it was not open for this
court under Article 32 of the Constitution to direct the CBI
Authorities or any other independent agency to investigate into
the matter when the police authorities are proceeding with the
trial and charge sheet has already been submitted. Therefore,
according to Mr.Rohatgi when there is specific remedy
provided under the Code of Criminal Procedure, 1973, this
Court cannot again direct the CBI to investigate into the
offence alleged by allowing a writ petition under Article 32 of
the Constitution.
44. In support of this contention, reliance was also placed in
the case of Aleque Padamsee & Ors. vs. Union of India &
Ors. [2007 (6) SCC 171].
45. Reliance was also placed in a decision of this Court in
M.C.Mehta vs. Union of India & Ors. [2008 (1) SCC 407]
where this Court held that once the court is satisfied itself that
a proper investigation has been carried out, it would not
venture to take over the functions of the Magistrate or pass
any order which would interfere with its judicial functions.
Accordingly, Mr.Mukul Rohatgi submitted that in the absence
of any error being committed by the police authorities in
conducting the investigation, it would not be proper for this
Court to exercise its power under Article 32 of the Constitution
and direct that the CBI authorities or any other independent
agency should be given the charge of investigating the offence
alleged in this writ petition.
46. Accordingly, Mr.Mukul Rohatgi, learned senior counsel
submitted that in view of the decisions of this Court, it would
not be proper for this Court at this stage, when the
investigation has been carried out by the police without any
blemish, to hand over the investigation to the CBI authorities
or any other independent agency particularly when the charge
sheet has already been submitted.
47. Having heard the learned senior counsel appearing for
the parties and after going through the eight Action Taken
Reports submitted by the Police Authorities before this Court
and after considering the decisions of this Court cited at the
Bar and the materials on record and considering the nature of
offence sought to be investigated by the State Police
Authorities who are themselves involved in such crime, we are
unable to accept that the investigation at this stage cannot be
handed over to the CBI Authorities or any other independent
agency. We have already discussed the decisions cited by
Mr.Mukul Rohatgi, learned senior counsel appearing for the
State of Gujarat and have already distinguished the said cases
and came to a conclusion that those decisions were rendered
when CBI enquiries have already been made and at that stage
this Court held that after the charge sheet is submitted, the
CBI authorities would not be able to approach this Court or
the High Court to have issuance of directions from this Court.
48. In R.S.Sodhi vs. State of U.P. (AIR 1994 SC 38) on
which reliance was placed by the learned senior counsel
appearing for the writ petitioner, this Court observed :
"We have perused the events that have taken
place since the incidents but we are refraining
from entering upon the details thereof lest it may
prejudice any party but we think that since the
accusations are directed against the local police
personnel it would be desirable to entrust the
investigation to an independent agency like the
Central Bureau of Investigation so that all
concerned including the relatives of the deceased
may feel assured that an independent agency is
looking into the matter and that would lend the
final outcome of the investigation credibility.
However, faithfully the local police may carry out
the investigation, the same will lack credibility
since the allegations are against them. It is only
with that in mind that we having thought it both
advisable and desirable as well as in the interest
of justice, to entrust the investigation to the
Central Bureau of Investigation."
(Emphasis supplied)
49. This decision clearly helps the writ petitioner for handing
over the investigation to the CBI Authorities or any other
independent agency. It is an admitted position in the present
case that the accusations are directed against the local police
personnel in which High Police officials of the State of Gujarat
have been made the accused. Therefore, it would be proper for
the writ petitioner or even the public to come forward to say
that if the investigation carried out by the police personnel of
the State of Gujarat is done, the writ petitioner and their
family members would be highly prejudiced and the
investigation would also not come to an end with proper
finding and if investigation is allowed to be carried out by the
local police authorities, we feel that all concerned including
the relatives of the deceased may feel that investigation was
not proper and in that circumstances it would be fit and
proper that the writ petitioner and the relatives of the
deceased should be assured that an independent agency
should look into the matter and that would lend the final
outcome of the investigation credibility, however, faithfully the
local police may carry out the investigation, particularly when
the gross allegations have been made against the high police
officials of the State of Gujarat and for which some high police
officials have already been taken into custody.
50. It is also well known that when police officials of the
State were involved in the crime and in fact they are
investigating the case, it would be proper and interest of
justice would be better served if the investigation is directed to
be carried out by the CBI Authorities, in that case CBI
authorities would be an appropriate authority to investigate
the case. In Ramesh Kumari vs. State (NCT Delhi) & Ors.
[2006 (2) SCC 677], this Court at Paragraph 8 observed :
"...................We are also of the view that since
there is allegation against the police personnel,
the interest of justice would be better served if
the case is registered and investigated by an
independent agency like CBI."
51. In Kashmeri Devi vs. Delhi Administration, (supra),
this court held that in a case where the police had not acted
fairly and in fact acted in partisan manner to shield real
culprits, it would be proper and interest of justice will be
served if such investigation is handed over to the CBI
authorities or an independent agency for proper investigation
of the case. In this case, taking into consideration the grave
allegations made against the high police officials of the State in
respect of which some of them have already been in custody,
we feel it proper and appropriate and in the interest of justice
even at this stage, that is, when the charge sheet has already
been submitted, the investigation shall be transferred to the
CBI Authorities for proper and thorough investigation of the
case. In Kashmeri Devi (supra), this Court also observed as
follows : -
"Since according to the respondent charge-sheet
has already been submitted to the Magistrate we
direct the trial court before whom the charge sheet
has been submitted to exercise his powers under
Section 173(8) Cr. P.C. to direct the Central Bureau
of Investigation for proper and thorough
investigation of the case. On issue of such
direction the Central Bureau of Investigation will
investigate the case in an independent and
objective manner and it will further submit
additional charge sheet, if any, in accordance with
law."
52. In Gudalure M.J.Cherian (supra), in that case also the
charge sheet was submitted but inspite of that, in view of the
peculiar facts of that case, the investigation was transferred
from the file of the Sessions Judge, Moradabad to Sessions
Judge, Delhi. Inspite of such fact that the charge sheet was
filed in that case, this Court directed the CBI to hold further
investigation inspite of the offences committed. In this case at
Page 400 this court observed :
".........................The investigation having been
completed by the police and the charge sheet
submitted to the court, it is not for this court
ordinarily to reopen the investigation specially
by entrusting the same to a specialized agency
like CBI. We are also conscious that of late the
demand for CBI investigation even in police
cases is on the increase. Nevertheless - in a
given situation, to do justice between the
parties and to instill confidence in the public
mind - it may become necessary to ask the CBI
to investigate a crime. It only shows the
efficiency and the independence of the agency."
53. In this connection, we may reiterate the decision of this
Court in the case of P & H High Court Bar Association
(supra) strongly relied on by the learned senior counsel
appearing for the writ petitioner. A reference of the paragraph
of the said decision on which reliance could be placed has
already been made in Para No.32 from which it would be
evident that in order to do complete justice in the matter and
to instill confidence in the public mind, this court felt it
necessary to have investigations through the specialized
agency like the CBI.
54. Therefore, in view of our discussions made hereinabove,
it is difficult to accept the contentions of Mr.Rohatgi learned
senior counsel appearing for the state of Gujarat that after the
charge sheet is submitted in Court in the criminal proceeding
it was not open for this court or even for the High Court to
direct investigation of the case to be handed over to the CBI or
to any independent agency. Therefore, it can safely be
concluded that in an appropriate case when the court feels
that the investigation by the police authorities is not in the
proper direction and in order to do complete justice in the case
and as the high police officials are involved in the said crime,
it was always open to the court to hand over the investigation
to the independent agency like CBI. It cannot be said that after
the charge sheet is submitted, the court is not empowered, in
an appropriate case, to hand over the investigation to an
independent agency like CBI.
55. Keeping this discussion in mind, that is to say, in an
appropriate case, the court is empowered to hand over the
investigation to an independent agency like the CBI even when
the charge sheet has been submitted, we now deal with the
facts of this case whether such investigation should be
transferred to the CBI Authorities or any other independent
agency in spite of the fact that the charge sheet has been
submitted in court. On this ground, we have carefully
examined eight Action Taken Reports submitted by the State
Police Authorities before us and also the various materials
produced and the submissions of the learned counsel for both
the parties. From a careful examination of the materials on
record including the eight Action Taken Reports submitted by
the State Police Authorities and considering the respective
submissions of the learned senior counsel for the parties, we
are of the view that there are large and various discrepancies
in such reports and the investigation conducted by the police
authorities of the State of Gujarat and also the charge sheet
filed by the State Investigating Agency cannot be said to have
run in a proper direction. It appears from the charge sheet
itself that it does not reveal the identity of police personnel of
Andhra Pradesh even when it states that Sohrabbuddin and
two others were picked up by Gujarat Police Personnel,
accompanied by seven personnel of Hyderabad Police. It also
appears from the Chargesheet that Kausarbi was taken into
one of the two Tata Sumo Jeeps in which these police
personnel accompanied the accused. They were not even
among the people who were listed as accused. Mr.Gopal
Subramanium, Addl. Solicitor General for India (as he then
was) was justified in making the comment that an honest
investigating agency cannot plead their inability to identify
seven personnel of the Police Force of the State.
56. From the charge sheet, it also appears that the third
person was `sent somewhere'. However, it appears that the
literal translation of the Chargesheet in Gujarati would mean
that he was `anyhow made to disappear'. From this, we are
also satisfied that an attempt was made by the investigating
agency of the State of Gujarat to mislead the Court. Also there
had been no mention of Accused No. 12 (Dr.N.K.Amin) as a
part of the criminal conspiracy in the charge sheet, who
otherwise finds mention in the original charge sheet.
57. With respect to the killing of Kausarbi, it was only stated
that she was seen in the company of the ATS personnel, on
26th of November, 2005 and her dead body was taken for
cremation on 29th of November, 2005. It is not clear from the
eight Action Taken Reports filed by the police authorities of the
State of Gujarat as to what happened to Kausarbi in the
meanwhile, nor is the mode of killing stated. The investigating
agency of the State of Gujarat has made a false excuse for not
conducting the NARCO Analysis of the accused because a
judgment of this Court is pending on the matter, though the
Sessions Judge had permitted such NARCO Analysis. In our
view, it is merely an excuse for not being able to conduct the
investigation relating to mode and manner of killing of
Kausarbi.
58. It also appears from the charge sheet that it identifies the
third person who was taken to Disha farm as Kalimuddin. But
it does not contain the details of what happened to him once
he was abducted. The possibility of the third person being
Tulsiram Prajapati cannot be ruled out, although the police
authorities or the State had made all possible efforts to show
that it was not Tulsiram. In our view, the facts surrounding
his death evokes strong suspicion that a deliberate attempt
was made to destroy a human witness.
59. So far as the call records are concerned, it would be
evident from the same that they had not been analyzed
properly, particularly the call data relating to three senior
police officers either in relation to Sohrabbuddin's case or in
Prajapati's case. It also appears from the charge sheet as well
as from the eight Action Taken Reports that the motive, which
is very important in the investigation reports was not properly
investigated into as to the reasons of their killing. The motive
of conspiracy cannot be merely fame and name. No
justification can be found for the investigating officer Ms. Johri
walking out the investigation with respect to Tulsiram
Prajapati's death without even informing this Court. That
apart, the charge sheet was filed in the court of Chief
Metropolitan Magistrate, Ahmedabad against 13 persons who
were charge sheeted for criminal conspiracy, abduction,
wrongful confinement and murder etc. 13 were arrested. One
of the 13 accused whose names had been listed is one
Mr.N.V.Chauhan, PSI who in the previous Action Taken
Report, was mentioned as yet to be arrested. However, in the
5th Action Taken Report, the name of Mr.Jadeja, driver (Police
Constable) who was also supposed to be arrested as per
previous Action Taken Report was not appearing among the
names of the accused who were arrested. Evidently, he had
not been charge sheeted. 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. 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.
60. In our view , the investigation of crime was carried out de
hors 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. 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. Ms. Geeta Johri herself in her report dated 7th of
December, 2006 had conceded that ATS was not a regular
police station in which FIR should have been filed. It was
further submitted that the investigation and charge sheet were
silent on the motive behind the `killings'. The only motive stated
is fame. In the cases of Babu Lodhi v. State of UP (1987) 2
SCC 352 and Prem Kumar and Anr. v. State of Bihar,
(1995) 3 SCC 228, it was held that motive assumes greater
significance in case where the case rests on circumstantial
evidence, as in the present case. That apart, from the Action
Taken Reports submitted by the State Police Authorities, we
also find that the State Police Authorities of the Gujarat had to
take help from the other police officials of other States, namely,
Andhra Pradesh and Rajasthan. If the investigation is
transferred to the CBI Authorities it would be fair and proper
that the other State police officials should also help the CBI
Authorities in coming to a final conclusion on the allegations
made by the writ petitioner and also on the offences alleged to
have committed by some of them.
61. Mr.Rohatgi, learned senior counsel appearing for the
State of Gujarat sought to argue that when the State of
Gujarat had completed free and professional investigation, and
also had filed periodical Action Taken Reports and since the
elaborate charge sheet had also been filed by the State
including all documentary, oral and scientific evidence, along
with the papers pertaining to the preliminary inquiry including
the periodical interim reports submitted by the Inquiry officer
to the Supervisory officer during such inquiry, it would not be
proper for this Court to transfer the investigation to any other
agency. According to Mr.Rohatgi, if this Court finds that the
investigation is incomplete in respect of lacunae in respect of
which other remedies are available, in that case it would be
open to this court to direct further investigation in respect of
lacunae to be filled up by further investigation. This was not
the position in the present case. According to Mr.Rohatgi, a
detailed charge sheet has been filed and subsequent to the
filing of the said detailed charge sheet, a supplementary
charge sheet has also been filed on 10th of December, 2007
with complete evidence including oral, documentary and
scientific evidence to bring home the guilt of the accused
before the Competent Court. Mr.Rohatgi further submitted
that the findings in the Charge-sheet have already been
summarized in the affidavit and the Investigating Agency has
collected voluminous oral & documentary evidence to ensure
that the charges leveled against them are adequately proven.
Further, the investigating agency has also taken steps
including Crime Scene Reconstruction, taking Expert Advice
and Video Recording.
62. Mr.Rohatgi, further submitted that in order to enable this
Court to decide what could be in the interests of justice, the
criminal antecedents of the Sohrabuddin, his father, and his
brother have also been enumerated. It was further submitted
that assistance from the Dept. of Police, Andhra Pradesh was
also received as ordered by this Court. However, the Andhra
Pradesh Police Officers had not been identified. It was urged
that this would not affect the conviction of the accused in any
manner. Similarly, it was submitted that non-identification of
the third person who was abducted along with Sohrabuddin
and Kausarbi would also not affect the prosecution case.
63. Mr.Rohatgi further submitted that since the charge-sheet
has already been filed, it would not be necessary to go into the
preliminary inquiry conducted prior to the registration of the
offence. Giving the aforesaid particulars on the question of
investigation by the State Police Authorities, Mr.Rohatgi
submitted that the enquiry was conducted in an independent
and impartial manner and the investigating team has been
given complete independence with respect to such an enquiry.
64. It was further contended by Mr.Rohatgi that the writ
petitioner approached the competent court under Section
173(8) of the Cr.P.C. in accordance with whose directions,
further investigation was also conducted. The report on such
investigation could not be submitted before this Court because
this Court had stayed the proceedings before the Competent
Court and the report is kept sealed with the Registrar General
of the High Court of Gujarat. The lacunae that the writ
petitioner raised during the oral submissions do not find place
in the application that he filed before the Competent
Authority. Under these circumstances and in view of the
submissions made by Mr.Rohatgi, as noted herein earlier, the
jurisdiction of this Court under Article 32 of the Constitution
would come to an end as soon as a charge sheet is filed after
conducting an investigation under the supervision and
monitoring of this Court.
65. In view of our discussions made herein earlier and the
submissions of the learned senior counsel for the parties and
the Amicus Curiae and keeping in mind the earlier various
directions given by this Court to the Police Authorities of the
State of Gujarat and the materials on record, we are of the
view that although the charge sheet was submitted but
considering the nature of crime that has been allegedly
committed not by any third party but by the police personnel
of the State of Gujarat, the investigation concluded in the
present case cannot be said to be satisfactorily held. We have
already discussed the decisions cited from the Bar on the
question that after the charge sheet being filed whether the
investigation could be handed over to the CBI Authorities or to
any other independent agency from the State police
authorities. We have already distinguished the decisions cited
by the State that they related to the power of the court to
monitor the investigation after the charge sheet was filed. The
scope of this order, however, cannot deal with the power of
this Court to monitor the investigation, but on the other hand
in order to make sure that justice is not only done, but also is
seen to be done and considering the involvement of the State
police authorities and particularly the high officials of the
State of Gujarat, we are compelled even at this stage to direct
the CBI Authorities to investigate into the matter. Since the
high police officials of the State of Gujarat are involved and
some of them had already been in custody, we are also of the
view that it would not be sufficient to instill confidence in the
minds of the victims as well as of the public that still the State
Police Authorities would be allowed to continue with the
investigation when allegations and offences were mostly
against them. In the present circumstances and in view of the
involvement of the police officials of the State in this crime, we
cannot shut our eyes and direct the State Police authorities to
continue with the investigation and the charge sheet and for a
proper and fair investigation, we also feel that the CBI should
be requested to take up the investigation and submit a report
in this Court within six months from the date of handing over
a copy of this judgment and the records relating to this crime
to them.
66. Accordingly, in the facts and circumstances even at this
stage the police authorities of the State are directed to hand
over the records of the present case to the CBI Authorities
within a fortnight from this date and thereafter the CBI
Authorities shall take up the investigation and complete the
same within six months from the date of taking over the
investigation from the State police authorities. The CBI
Authorities shall investigate all aspects of the case relating to
the killing of Sohrabuddin and his wife Kausarbi including the
alleged possibility of a larger conspiracy. The report of the CBI
Authorities shall be filed in this Court when this court will
pass further necessary orders in accordance with the said
report, if necessary.
67. We expect that the police authorities of Gujarat, Andhra
Pradesh and Rajasthan shall co-operate with the CBI
authorities in conducting the investigation properly and in an
appropriate manner.
68. The Registry shall send copies of this judgment forthwith
to the Director, CBI, the Secretary, Ministry of Home
Affairs, Government of India, and the Secretary, Home
Ministry, State of Gujarat.
Writ Petition (Crl.) No.115 of 2007 :-
So far as W.P.(Crl.) No.115 of 2007 is concerned, let this
matter be listed after eight weeks before an appropriate Bench.
Contempt Petition (Crl.) No. 8 of 2007 in Writ Petition
(Crl.) No.6/2007 :-
So far as contempt petition being Contempt Petition (Crl.)
No.8 of 2007 is concerned, we are of the view that in view of
our final order passed in the main writ petition being
W.P.(Crl.)No.6 of 2007, we do not find any reason to proceed
with this contempt application any further. Accordingly, the
contempt petition is disposed of. Notice, if there be any, stands
discharged.
............................J.
[Tarun Chatterjee]
New Delhi; .............................J.
January 12, 2010. [Aftab Alam]
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