R_CR.MA_15981_2010_j_13

CR.MA/15981/2010 1/165 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION No. 15981 of 2010In

CRIMINAL MISC.APPLICATION No. 9832 of 2010In

SPECIAL CRIMINAL APPLICATION No. 1850 of 2009

For Approval and Signature:

HONOURABLE MR.JUSTICE JAYANT PATEL

HON'BLE SMT. JUSTICE ABHILASHA KUMARI

=========================================================

1Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3Whether their Lordships wish to see the fair copy of the judgment ?

4

Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?

5Whether it is to be circulated to the civil judge ?

========================================================= SIT - THRO' KARNAL SINGH - IPS - Applicant(s)

VersusSAMIMA KAUSAR WD/O MOHMMED SHAMIM RAZA & 4 -

Respondent(s)=========================================================

Appearance :

MR YOGESH S LAKHANI for Applicant(s) : 1,

MR IH SAYED FOR petitioner

MR MUKUL SINHA FOR ORI. petitioner OF SP. CRI. APPLN. NO.1850/2009

MR KAMAL TRIVEDI, LD. ADVOCATE GENERAL AND MR. PK JANI, LD. PUBLIC PROSECUTOR ASSISTED BY MS. SANGEETA VISHEN, APP for STATE Respondent(s) : 3,MR PS CHAMPANERI for Respondent(s) : 4,

=========================================================

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CR.MA/15981/2010 2/165 JUDGMENT

CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL

and

HON'BLE SMT. JUSTICE ABHILASHA KUMARI

Date : 01/12/2011

ORAL JUDGMENT

(Per : HONOURABLE MR.JUSTICE JAYANT PATEL)

1.In order to see that the points, which arise

for consideration can finally be put to an

end in view of development of the

investigation and change in circumstances, it

would be relevant to refer to some important

factual aspects arising by the judgement of

this Court dated 12.8.2010 in Special

Criminal Application No.822 of 2004 and

allied matters and the subsequent development

in the matter.

2.This Court, in its judgement dated 12.8.2010

at paragraphs 2 to 4, had narrated the

incident, as under:-

“2. On 15.6.2004, vide C.R. No.8/2004 of

Crime Branch Police Station, a complaint

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was filed by Shri J.G. Parmar, P.I. (Crime

Branch), Ahmedabad informing that on

14.6.2004 at about 23.00 hrs., an

information was received by Joint

Commissioner of Police Shri P.P. Pandey

through his personal sources that in Blue

Colour Indica Car bearing Registration

No.MH-02-JA-4786, one Javed and two

Pakistani Fidayeens, with arms

and ammunition, have left Mumbai for

reaching Ahmedabad and they were to enter

Ahmedabad early morning at any time. As the

said information was supported by

Intelligence Sources, Additional

Commissioner of Police (Crime Branch),

Mr.D.G. Vanzara called ACP and PI and under

his direct guidance, strong

checking was ordered and it was planned to

catch hold of the car and necessary teams

were constituted; one team at Narol Chokdi

Four-Roads, one team at CTM Four-Roads, one

team at Naroda S.T. Workshop Three-Roads;

one team at Naroda-Himatnagar Railway

Crossing; one team at Indira Bridge Circle;

and one team at Vishala Circle were

deployed and they were comprising of Shri

Amin - ACP, PSI Shri P.G. Waghela, PSI Shri

C.J.Goswami, PI Shri B.D. Vanar, ACP Shri

Singal and PI Shri Agrawat. The teams had

started watch since 1.30 am in the morning

and when there was watch of the team of

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Shri Amin - ACP, at about 4 am in the

morning, at Narol, the above Indica Car

with Registration No.MH-02-JA-4786 came

from Mumbai and took a right turn towards

Naroda, therefore, they had followed

the car. The informations were supplied to

other teams on phone and it was informed on

mobile to Shri Singal that the car had

taken turn from Naroda-Himatnagar Railway

Crossing to Airport Road and it might run

away, therefore, the car is required to be

intercepted. Hence, over Indira Bridge, the

members of the team comprising of ACP Shri

Singal, PI Shri Tarun Barot, PI Shri RI

Patel, PI Shri K.M. Waghela, PI Shri D.H.

Goswami, PSI Shri I.K. Chauhan and other

staff in their vehicle proceeded towards

Airport Road and near Kotarpur Workshop

took a sharp turn and their vehicles were

kept close to the divider and other members

of the team had taken different position.

At that time, when the Indica Car reduced

its speed because of the turning at

Kotarpur Water Works, Commando Mr.Mohan

Nanjibhai (Buckle No.1898), who was sitting

in the Police Vehicle, under the direction

of Shri Amin, fired at the rear tyre of

Indica Car and as a result thereof, the car

had come to a halt, close to the divider.

At that time, from the left side, one

terrorist came out with AK 56, got down and

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took his position behind the divider and

started firing to the Police Vehicle. The

other terrorists, who were sitting in the

car had also started firing, but Shri Amin,

the informant/complainant himself and

Commando Mr.P.C. Mohanbhai and driver of

the car Mr.Bhalabhai and PSI Mr.K.M. Desai

got down from the vehicle and took their

position on the back side of the vehicle,

therefore, they saved themselves and the

Commando, under the orders of Shri Amin,

started firing in his self-defence with

Government weapon AK 47 Rifle. About 10

rounds were fired and during the same, it

was learnt that, as per the information,

they were dangerous terrorists, therefore,

ACP Shri Singal had ordered for firing. The

member of his team, Commando Mr.P.C.

Mohanbhai (Buckle No.2211) and Commando

Mr.A. Chaudhari (Buckle No.842) started

firing towards the persons sitting in the

Indica Car. Therefore, both the Commandos,

by taking their position with their weapons

of AK47 fired 32 rounds and 10 rounds with

the Sten-gun in response to the firing of

the terrorists. Simultaneously, the

informant/complainant with his service

revolver fired four rounds, Shri Amin fired

five rounds, Shri Barot fired six rounds

and Shri I.K. Chauhan fired three rounds

towards terrorists. The cross firing

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continued for some time and thereafter when

the firing was stopped, they went near to

Indica Car and it was found that on the

rear-seat one terrorist, one terrorist on

the driving seat, one female terrorist

sitting next to driver and one terrorist

near the divider, total four terrorists

died on the spot.

3. It was stated in the complaint that all

the deceased were terrorist - Fidayeens of

prohibited Lashkar-e-Taiba had the

conspiracy to kill the Chief Minister of

Gujarat, Shri Narendra Modi with suicidal

attempt, therefore, they had procured arms

and ammunition and wanted to create

terrorist activities in India. The other

aspects were also referred in the

complaints of having possession of arms and

ammunition of foreign automatic weapons

without licence, without passports, etc.,

and also for entering India from Pakistan

without there being proper visa. The

alleged offences in the complaint were

under Section 3(2)(a) & (c), 13, 14 of the

Foreigners' Act, Section 120B, 121, 121A,

122, 123, 307, 553, 186 of IPC, Section 27,

29 of the Arms Act and Section 3(1)(a)(b)

and 3(2), 3(3), 20 and 21 of the Prevention

of Terrorism

Act and Section 135(1) of the Bombay Police

Act. The accused shown in the complaint

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were (1) Jishan Johar @ Jaanbaaz @ Abhas

Abdul Gani, resident of Pakistan and the

addressed shown was Nar Nanak Kalerbadi,

District Gujranwala, Punjab, Pakistan, (2)

Amjad Ali @ Salim @ Chandu @ Raj Kumar; (3)

Javed resident of Poona and (4) a lady

terrorist, whose name and address was not

known. It may be recorded that thereafter,

it has come out that accused No.3 was Javed

@ Praneshkumar Pillai and the lady was

Ishrat Jahan Raza.

4. The investigation of the said complaint

was assigned to Ms.Parixita Gurjar,

A.C.P. Mahila, Crime Branch, Ahmedabad

City. Further, on 14.7.2004, an

application was made to the designated

Judge, Pota Court by the said

investigating officer for addition of

the chargeunder Sections 4 and 5 of

Explosive Substances Act and for the

offence under Section 4 and 53 of the

Prevention of Terrorism Act

(hereinafter referred to as 'POTA”). It

appears that when the substantial

investigation was completed and

investigation in part was yet to be

completed, at that stage, the mother of

deceased Ishrat Jahan named Mrs.Shamima

Kausar Mohammed preferred Special

Criminal Application No.822 of 2004,

challenging the action by the police

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contending that her daughter has been

killed in the fake encounter,

therefore, prayed to direct Central

Bureau of Investigation (hereinafter

referred to 'CBI' for the sake of

convenience) to carry out the

investigation of the complaint

registered with DCP, Ahmedabad City by

registering the case with them. The

prayer is also made in the said

petition to direct the State to provide

adequate compensation to the petitioner

but, of course, no arguments whatsoever

were made by the learned Counsel

appearing for the petitioner on the

said aspect at all at the time of final

hearing of the matter. Therefore, it

can be said that the petitioner

restricted the case to direct

the investigation by CBI as per above

referred prayer only.”

3.Thereafter, there was magisterial inquiry

under Section 176 of Cr. P.C., by Mr. Tamang,

the then Metropolitan Magistrate and the

learned Magistrate recorded the findings,

which were taken note of by this Court in the

above referred judgement at paragraph 41, the

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relevant of which reads as under:-

“41 … But the matter does not end there on

the aspects of other findings recorded by

the learned Magistrate based on; (1) the

presence of well developed rigor mortis on

the body of the deceased at the time of

postmortem; (2) the ballistic report for the

use of the bullet; (3) non-availability of

the signs of gun-powder in the hand-wash

report; (4) the entry and exit wounds of the

bullet marks on the body of the person

concerned; (5) the bullet marks on the

vehicles, …”

4. The learned Magistrate thereafter had

opined that the encounter was not genuine and

there was a conspiracy by the police officers

concerned to earn benefits in service. The

report of the learned Magistrate also came to

be considered in the aforesaid judgement with

the challenge made to it and this Court at

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paragraph 78 deduced the conclusion, the

relevant of which for the purpose of deciding

the present controversy is at paragraphs

78(5) to 78(11), which reads as under:-

“78. In view of the aforesaid

observations and discussions, the

following conclusion can be deduced :-

(1) xxx

(2) xxx

(3) xxx

(4) xxx

(5) There is no material on record

before us of malice or malafide on the

part of the State police officials,

which may lead us to transfer the

investigation to CBI only.

(6) The investigation so far cannot

be said as fully satisfactory by the

I.O., and/or Additional DGP as observed

in the judgement.

(7) There is a report of the

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Metropolitan Magistrate under Section

176 of Cr. P.C., which expresses the

view/finding, if considered would make

the encounter non-genuine or fake one.

The views of the learned Magistrate on

the other

aspects are without material on record

as observed in the judgement.

(8) In view of two

contradictory findings of I.O., and

Additional DGP vis-a-vis the findings

of the Metropolitan Magistrate in the

report under Section 176 of Cr.P.C., on

the aspects of genuineness of the

encounter, the incident deserves

further investigation.

(9) In order to instill confidence and

to provide credibility to the

investigation and to do complete

justice, the investigation deserves to

be made by Special Investigation Team,

as constituted by this Court, as

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observed in the judgement herein above

under Article 226 of the Constitution

of India. The concerned Government or

the establishment is bound to comply

with the directions of this Court and

to provide all necessary

infrastructure.

(10) The members of SIT or SIT work

under the orders of this Court. Hence,

alteration in the composition or

constitution of new SIT, if this Court

finds it proper, cannot have

demoralizing effect, but can be termed

as a transfer of work/assignment

simplicitor.

(11) As one SIT is already functioning

for sensitive riot cases as per the

orders passed by the Apex Court, same

SIT, subject to the change, if any,

made by the Apex Court, deserves to be

entrusted the work of investigation in

order to instill confidence and

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credibility to the investigation.”

5. This Court further passed the order

issuing directions, the relevant of which is

at paragraph 79(b) as under :-

“79. In the result, the following orders :-

(a) xxx

(b) Special Criminal Application No.822 of

2004 and Special Criminal Application

No.1850 of 2009 shall stand allowed to the

extent of constitution and assignment and

transfer of the investigation to the SIT as

observed herein above in the present

judgement for investigation in connection

with C.R. No.8 of 2004 dated 15.6.2009

registered with DCB Police Station,

Ahmedabad City. It is further observed that

SIT shall be at liberty to take all the

steps in accordance with law for

investigation transferred to it and it shall

also have the power to take action in

furtherance thereto in accordance with law.

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The State Government is directed to issue

necessary orders in this regard within two

weeks from the date of receipt of the order

and the said SIT shall submit the report

within three months thereafter to this

Court. The other prayers made by the

petitioner, including to transfer the

investigation to CBI are not granted.”

6. It appears that, thereafter in Criminal

Misc. Application No.9832 of 2010 preferred

by one of the original petitioners, Gopinath

Pillai, Father of the deceased Praneshkumar

Pillai @ Javed Gulammohammad Shaikh of

Special Criminal Application No.1850 of 2009,

this Court observed vide order dated

24.9.2010 at paragraph 8 to 14 as under:-

“8. However, the second ground for review

and recalling of the order for constitution

of SIT and to assign the investigation to

the SIT for Riot cases, may call for

consideration. The said ground would get

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strengthened by the inability expressed by

the SIT for Riot cases itself, as reflected

from its letter dated 30.08.2010, on the

basis of which the proceedings of Criminal

Misc. Application No.10621 of 2010 have been

initiated.

9.The situation, as it emerges from the

record, is that on the date when this Court

passed the judgment and the order on

12.08.2010, this Court had assigned the work

for investigation of the present case to the

members of the SIT constituted by the Apex

Court because they were already functioning

in the State with all infrastructure

available with them, for investigation of

crimes, may be of specified cases marked to

that SIT by the Apex Court. But, it appears

that if the very SIT for Riot cases is

unable to take up the investigation, the

consequences may arise that either no result

may come out for which the directions have

been issued by this Court or in the

alternative, it would not serve any purpose

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whatsoever. In normal circumstances, when

this Court has exercised power under Article

226 of the Constitution, the provisions of

CPC for review of an order would not

automatically apply but the principles

analogous to the provisions of CPC can be

made applicable to the proceedings of this

Court under Article 226 of the Constitution.

Further, if any situation has emerged on

account of any unwillingness shown by the

SIT for Riot cases to take up the

investigation as ordered by this Court, the

same can be considered as a valid ground for

review and/or recalling the order to the

extent of constitution of the said SIT. It

appears to us that considering the facts and

circumstances, and more particularly, in

view of the contents of the letter dated

30.08.2010 addressed by SIT for Riot cases,

coupled with the observations made by the

Apex Court in the proceedings of Special

Leave to Appeal (Crl.) No.7132 of 2010 vide

order dated 06.09.2010, there would be valid

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ground for review and recalling of the order

to the extent of constitution of a new SIT.

At this stage, we may refer to the

observations made by the Apex Court in the

above referred order, the relevant extract

of which reads as under:

“....In the meanwhile, the High Court shall

be at liberty to consider the application

stated to have been filed on behalf of SIT

expressing its inability to undertake the

investigation in terms of the directions

issued by the High Court. The High Court

shall also be at liberty to pass an

appropriate order constituting a proper

agency for investigation of the crime in

question.”

10. Under these circumstances, we find that

inability expressed by the SIT constituted

by the Apex Court to undertake the

investigation in the present case could be

termed as a valid ground for review and to

recall the order for assigning the

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investigation of the present case to that

SIT for Riot cases.

11. The aforesaid would lead us to consider

the question for constituting another SIT.

In order to consider the aforesaid aspects,

we may refer to the relevant observations of

this Court made in Paragraph-74 of the above

referred judgment about the SIT which

deserves to be constituted, the relevant

portion of which reads as under:

“Therefore, we find that if a broad based

SIT is constituted, which would be in a

position to investigate into the incident by

collecting data from various States, which

are concerned and through the Police of

various States, it would be not only more

convenient, but would be more practicable

and would help to trace the truth for the

alleged incident.”

... ... ...

“Under these circumstances, we find that it

would be just and proper to include the

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officers from outside the State as well as

one, who was or is holding very high

position in the Central Bureau of

Investigation.”

12. It may also be observed that at

Paragraph-75, it was interalia observed as

under:

“....We may observe that when the Apex Court

in such highly sensitive matters in the riot

cases in the State of Gujarat, which include

the Police Officers of the State, has found

it proper to assign the work of

investigation to the aforesaid SIT, the same

team can be entrusted the work of the

investigation of the present case and such

would instill confidence and credibility to

the investigation to do complete justice to

the parties and thereby protecting the

fundamental rights of the citizens.”

13. Keeping the aforesaid observations in

mind, if a broad-based SIT is constituted,

it would serve the purpose and would be in

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furtherance of the cause for which the

investigation is so ordered by this Court.

14. In order to consider the officers who

can be included in SIT, we had called for

the names from the applicant Mr.Pillai,

State of Gujarat, as well as the Union of

India, through their respective counsel and

we had also given opportunity to Ms.Shamima

Kauser, petitioner of Special Criminal

Application No.1850 of 2009.”

7. Thereafter, this Court further considered

the matter to deal with the arguments and the

contentions raised by the State, including

that of assigning the work to the Special

Task Force and induction of any officer other

than that of State Cadre in the Special

Investigation Team (‘SIT’ for short) and

further proceeded to constitute a new SIT.

The relevant aspects of the said order (dated

24.9.2010 in Cr. Misc. Application

No.9832/2010) reads from paragraph 20 to 25

as under:-

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“20. It is hardly required to be stated that

a judgment or order of the High Court in

exercise of the power under Article 226 of

the Constitution cannot be nullified by any

executive action of the Government, be it a

policy matter or constitution of a Special

Task Force or the constitution of the

Monitoring Authority, or otherwise.

Therefore, once this Court having recorded

the findings for constitution of a SIT

having a particular character and

composition, such decision on the part of

the State can hardly be considered as a

valid ground to recall the observations made

for constitution of SIT, thereby instilling

confidence and credibility to the

investigation. Under these circumstances,

based on the Notification, such suggestion

cannot be accepted. Further, when this Court

has already ruled for inclusion of certain

officers in the SIT, unwillingness on the

part of the State for induction of any

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officer of IPS cadre from outside the State

can neither be countenanced nor endorsed. We

may record that the Constitution provides

the competence of any State or the Union or

any constitutional authority, including the

judiciary, for protection of the rights of

citizens and controls the exercise of power

by any executive. In a Federal structure

which prevails in our nation, once this

Court has exercised the power under Article

226 of the Constitution, and has ruled for

assigning the investigation to a broad-based

SIT, such reservations expressed on behalf

of the State cannot be countenanced by this

Court. The aforesaid is coupled with the

circumstance that State has not filed any

review application for recalling of the

order. Further, even if the State, for the

reasons best known to it, is desirous of

constituting the Special Task Force or a

Monitoring Authority, it may be made

applicable to other cases, namely, encounter

cases other than the one considered and

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examined by this Court in exercise of the

power under Article 226 of the Constitution.

Further, if such aspect is considered, it

may also indirectly dilute the observations

made by this Court in the judgment and also

by the Apex Court, permitting the High Court

to constitute a new SIT. Hence, we find that

such ground should not operate as a bar or

by way of a second thought for non-

constitution of the SIT and the assignment

of investigation to it. (Emphasis supplied)

21. Having considered the above, and after

taking into consideration the names of the

officers given by different parties, we find

that the new SIT for the present case shall

comprise of the following officers:

1. Shri Karnail Singh – IPS 1984 Batch

– One of the officers nominated by

the Union of India out of the list

of 5 officers.

2. Shri Mohan Jha – IPS 1985 Batch – at

present posted in Gujarat State –

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Nominated as one of the officers by

the Gujarat State out of list of 11

officers.

3. Shri Satish Varma – IPS 1986 Batch –

posted in Gujarat State – one of

the officers nominated from the

list of 4 officers given on behalf

of the applicant - Shri Gopinath

Pillai.

22. The State Government is directed to

issue necessary orders, including

Notification, in this regard, within a

period of two weeks from the date of receipt

of the order.

23. The investigation of I-C.R.No.8/2004

dated 15.06.2004 registered with DCB Police

Station, Ahmedabad City, shall be

transferred to the SIT constituted by this

order. It is further observed that the said

SIT shall be at liberty to take all steps in

accordance with law for investigation

transferred to it and it shall also have

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power to take action in furtherance thereof,

in accordance with law. The State shall

provide necessary infrastructure to the said

SIT.

24. It is further observed and clarified

that the SIT so constituted by the present

order shall not take any

assistance, directly or indirectly, of the

officers of any rank of the State Police, if

they are involved directly or indirectly in

connection with the present incident of

encounter, which is to be investigated by

them.

25. The other directions for investigation

and submission of the report issued vide

judgment and order dated 12.08.2010 shall

remain the same.” (Emphasis supplied)

8. It is only after the constitution of the

aforesaid SIT (hereinafter referred to as the

‘First SIT’ for the sake of convenience), the

implementation of the directions, issued vide

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judgement dated 12.8.2010, for transferring

and assigning of the investigation, actually

started.

9.In the present application on 28.1.2011,

this Court found that there were differences

of opinion amongst the Members of the SIT;

mainly Mr.Satish Verma and, therefore, this

Court passed the further order, the relevant

of which reads from paragraphs 3 to 5 as

under:-

“3. It prima facie appears that because of

certain difference of opinion amongst the

members of SIT, the prayer is made to

appoint any lawyer as amicus curiae for

giving opinion on the legal issues involved

in it while in the course of investigation

or may be thereafter.

4. It also appears from the counter

affidavit filed by Mr.Satish Verma, one of

the member of SIT that there are differences

of opinion amongst the members of SIT, may

be on account of no hierarchy formed in the

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order passed by this Court or mode expressly

not provided for resolving the difference of

opinion. It also appears that as per one of

the member of SIT, Mr. Satish Verma, when he

wanted to investigate certain aspects, the

view was expressed by the other members that

unless the issue is discussed and

unanimously resolved, the investigation may

not be made in this regard. Such has

resulted into the present matter.

5. In order to see that the spirit of the

order passed by us for unearthing the truth

on the aspects as to whether it is a genuine

encounter or a fake encounter and in order

to see that the SIT so constituted can work

with discipline and may be in a position to

resolve the issues, may be on the aspects of

investigation or on legal issues, we find

that the following directions deserves to be

issued -

(1) Mr.Yogesh S.Lakhani, Senior Advocate,

is appointed as amicus curiae for rendering

all legal assistance to the SIT. Office

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shall communicate the present order to

Mr.Lakhani. As regards the professional fees

of Mr.Lakhani for the service which may be

rendered, the State Government will have to

bear the fees and the expenses but the

quantification shall be made as and when the

bills are received or the report is so

submitted. Provisionally, the State shall

deposit the amount of Rs.20,000/- with the

SIT towards legal expenses and in turn, the

said amount as and when required or so

instructed by the amicus curiae, shall be

disbursed by SIT to Mr.Lakhani, subject to

further orders which may be passed by this

Court for quantification of expenses upon

the legal advice or legal proceedings etc.,

if any.

(2) The SIT shall have the following

discipline amongst it :

A) Mr.Karnal Singh, IPS, shall be the

Chairman of SIT - Mr. Mohan Jha, IPS and

Mr.Satish Verma, IPS shall be the members of

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SIT.

B) Generally, the decision shall be taken

by SIT after discussion with all the members

and if there is unanimity, the said decision

shall be acted upon without any hesitation.

If any member of the SIT expresses a

dissenting view, it would be open to the SIT

to proceed in accordance with the majority

view. But at the same time, the dissenting

view shall be taken note of. The aforesaid

is with the express observation that in the

mode and manner of investigation, such would

apply.

C) So far as the field of investigation is

concerned, SIT shall be guided by the

observations made in the judgment dated

12.08.2010. We may broadly state that SIT

has to keep in mind three aspects; one would

be the FIR already registered, another would

be the area or the points over which the

view has been expressed by the learned

Magistrate in the inquiry made under section

176 of the Cr.P.C. and the third would be as

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to whether it is a genuine or fake

encounter. No compromise on any point on the

aforesaid three aspects shall be made while

undertaking the investigation by the SIT, be

it a majority view or a minority view.

D) In the field of investigation, SIT

shall be at the liberty to take decision. If

any legal issue arises which the majority of

the members of SIT finds to be resolved, it

would be open to the SIT to seek legal

assistance of the amicus curiae by way of

opinion or otherwise.

E) We express the view that all members of

the SIT shall work with a team spirit in

order to realise faith which has been

reposed by the Court for investigation and

all sincere attempts shall be made, of

course within the bounds of law, to reach

the truth of the subject matter for which

the investigation has been so ordered. All

clues directly or indirectly touching to the

spirit of the order shall be investigated so

as to bring it to its logical end.

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(3) As we find that certain incidental

matter may arise while the SIT is

investigating into the matter, it would be

just and proper to direct the SIT to submit

the progress report every two months.

(4) It will be open to the SIT to intimate

the names of any officer or witnesses who

are to be interrogated or who may be the

witness in connection with the incident to

post them at a place where they are not

required to work under the higher officers

who are also directly or indirectly involved

in the incident and the State shall act

accordingly upon intimation so received from

SIT.

(5) S.O. to 08.04.2011 for reporting

progress and further order.”

10. The pertinent aspect is that this Court

observed that certain incidental matters might

arise while SIT is investigating into the matter

and, therefore, this Court found that it would

be just and proper to direct the SIT to submit a

progress report every two months.

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11. The matter further came to be considered on

8.4.2011 and having found that in spite of the

requisition made by SIT the concerned Police

Officers were not transferred by the State

Government, this Court passed the further order

as under :-

“1. The report submitted by Mr.Mohan Jha,

one of the Members of the SIT is considered.

The pertinent aspect is that in spite of the

earlier direction given by this Court in the

order dated 28.1.2011 at paragraph 4 of the

said order, requisition was made by SIT for

transfer of certain police officers and as

per the said report, Mr.P.P. Pandey, Mr.G.L.

Singhal and Mr.Tarun Barot have not been

transferred so far.

2. We may record as per the order dated

28.1.2011 at para 4, it was ordered thus:-

“4.It also appears from the counter

affidavit filed by Mr.Satish Verma, one of

the member of SIT that there are differences

of opinion amongst the members of SIT, may

be on account of no hierarchy formed in the

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order passed by this Court or mode expressly

not provided for resolving the difference of

opinion. It also appears that as per one of

the member of SIT, Mr. Satish Verma, when he

wanted to investigate certain aspects, the

view was expressed by the other members that

unless the issue is discussed and

unanimously resolved, the investigation may

not be made in this regard. Such has

resulted into the present matter. “

3. Under these circumstances, the

aforesaid officers as requisitioned by SIT

shall be posted at different places by way

of transfer so as to have the smooth

functioning of SIT and the aforesaid

directions shall be complied with within one

week.

4. It further appears from the report that

the investigation by the SIT is not very

satisfactory. The Chairman of SIT, Mr.Karnal

Singh appears to be available only on few

days, may be on account of his assignment at

different places. Similarly for Mr.Jha and

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Mr.Satish Verma, there is no separate

reports prepared for the action taken by

each of them. If the progress is to be

considered in toto, we find that it is not

up to the expectation of the Court of the

investigation well in time.

5. Hence, with a view to ensure that the

investigation is geared up and properly

channelized so as to unearth the truth at

the earliest, we direct that each Member of

SIT shall submit separate report about the

contribution made by him in the functioning

of SIT. Such report shall be submitted in

the sealed cover. In addition to the above,

as the present report is not found to be

satisfactory, a fresh report shall be

submitted by incorporating the gist of the

investigation, if any, made, including after

referring to the statement of the key-

witnesses on the aspects about the

genuineness of the encounter or otherwise.

6. It was reported that some complaints

were filed against one of the Members of the

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SIT, Mr.Satish Verma, who in furtherance to

the investigation, had seized certain

records of FSL and others. As such when the

Members of the SIT are acting under the

directions of this Court any complaint

against the functioning of any Member in the

course of such investigation is required to

be reported to this Court and no attempt

should be made for creating any hindrance or

obstruction in the investigation, may be by

way of the decision of the majority of the

Members of SIT or even minority view through

any single Member of SIT.

7. It is hardly required to be stated that

the complaint being C.R. No.8/2004 dated

15.6.2009 is already registered with DCB

Police Station, Ahmedabad City and,

therefore, when the Investigation is

transferred to SIT, including the Members of

SIT, they would be for all purpose

functioning in connection with the said FIR

for further investigation as per the

provisions of Code of Criminal Procedure

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read with the orders of this Court.

8. Hence, no impediment or obstruction

shall be created by anyone in the

investigation to be made by SIT or its

Members, may be minority view or majority

view, if the attempt is to get all clues

investigated for reach the truth.

9. All the aforesaid reports shall be

submitted on or before 20.4.2011 at 2.30

p.m. S.O. to 21.4.2011 at 4 p.m.

10. The aforesaid direction qua transfer of

the officials shall be communicated by the

learned Advocate General.

11. Office to supply copy of the petition

and the order as required by Mr.Lakhani, who

has been appointed as Amicus Curiae.”

(Emphasis supplied)

12. The pertinent aspect is that this Court

found that the investigation by SIT was not

satisfactory and in order to gear up the

functioning of the SIT and to channelize the

functioning to unearth the truth at the

earliest, each member of the SIT was directed

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to submit separate report about the

contribution made by him in the functioning

of SIT and it was also observed that attempt

should be made not to create any hindrance or

obstruction in the investigation, might be by

way of decision by the Members of the SIT, or

even made by any single member of the SIT.

It was also observed that all attempts should

be made to get all clues including, might be

by minority or majority, so as to reach the

truth and the direction was also given for

communication of the order for transferring

of the State Police Officers through Advocate

General.

13. The matter further came to be considered

by this Court on 21.4.2011 and it was found

that Mr.Karnal Singh, Chairman of SIT was

posted at Mizoram and he had shown his

inability to continue with the present

assignment. Therefore, Mr.Karnal Singh was

allowed to be relieved as Chairman of SIT,

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but since it was noticed that there were

differences of opinion in the mode and manner

of investigation, the duties amongst the

Members were demarcated. Further, as the

transfer was not affected in spite of the

requisition made by the SIT, this Court also

found that there was non-compliance of the

order passed by this Court by the State

Government and, therefore, called upon the

concerned Officer to submit reply and

explanation before concluding on the aspect

whether action should be initiated under the

Contempt of Courts Act or not. The matter

was considered and the following order was

passed on 21.4.2011:-

“1. As per the order dated 08.04.2011

passed by this Court, all the reports have

been submitted. We have gone through the

reports and have considered the contents

thereof. Since the investigation is at a

crucial stage, we find that the contents of

the reports are not required to be recorded

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since to do so would prejudice the

investigation.

2. However, three pertinent aspects are

required to be recorded qua each member of

SIT. One is that Mr. Karnail Singh, Chairman

of the SIT, who has been posted at Mizoram,

has shown his inability to continue with the

present assignment. We have gone through his

report and we find that the difficulty being

faced by him appears to be genuine. Of

course, he has also stated other aspects in

the report which, if required, shall be

considered at a later stage. Under these

circumstances, we allow Mr.Karnail Singh to

be relieved as Chairman of SIT. Since we may

be required to induct another member as SIT

who may be the Chairman, or otherwise, as

per his seniority in the IPS cadre, we keep

that aspect open. It is directed that the

Union of India, through Mr.P.S. Champaneri,

on the next date, shall communicate names of

other officers who may be spared for

inclusion in the present SIT.

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3. The second aspect is that on account of

the non- availability of the Chairman, SIT

shall now comprise of two members, namely,

Mr.Mohan Jha and Mr. Satish Verma.

4. We have seen the individual report of

both the members and we find that there are

various differences of opinion in the mode

and manner of investigation. Further, we

have seen from the report that if there is

no separate demarcation of duties, it may

hamper the smooth investigation. Therefore,

we find it proper to demarcate the duties of

both the members of SIT. However, it is

clarified that the demarcation of duties by

this Court may not be taken to mean that

there is a perception that any officer is

either working properly or not working

properly. However, demarcation of duties is

essential with a view to streamline the

investigation without any impediment

therein.

5. We have heard both the members of the

SIT. Considering the facts and circumstances

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and having gone through the reports

submitted by the members of SIT including

Chairman, Mr. Karnail Singh, we find that

the investigation through SIT shall be

looked after in the following manner:

(1) Mr.Mohan Jha shall look after the

administrative work being member of SIT.

(2) Mr.Satish Verma shall look after the

actual and further investigation of the case

which is already stated vide order dated

08.04.2011 at paragraph no.7, i.e.,

pertaining to complaint being C.R.No.8/04

dated 05.06.2004 registered with DCB Police

Station, Ahmedabad.

6. Hence, SIT shall work accordingly.

7. It was submitted by Mr.Lakhani, amicus

curiae on behalf of SIT that since no

officer of the rank of SP/DIG level is

available, it would help the member of SIT

to further investigate the matter if such an

officer is spared by the State Police

Department. We leave it to the discretion

and decision of the member of SIT who has

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been assigned with the work of

investigation. If he finds it proper, he may

requisition the officer of his choice who is

not connected with the incident directly or

indirectly. Upon the requisition being made

by him, the State Government shall spare

that officer for assisting the member of SIT

for investigation.

8. It has been further stated that the

report of the Central Forensic Laboratory as

well as AIIMS may take some time,

approximately four weeks. An attempt shall

be made by requisitioning both the

authorities to submit the reports earlier,

preferably within a period of two weeks, if

possible. The order of this Court shall be

communicated to the Central Forensic

Laboratory as well as AIIMS.

9. Another aspect which we need to record

is that when we passed the order dated

08.04.2011, it was already mentioned that

SIT had requisitioned transfer of certain

officers including Mr.P.P. Pandey, Mr.G.L.

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Singhal and Mr.Tarun Barot pursuant to our

order dated 28.01.2011. In spite of the

requisition made by SIT, the said officers

were not transferred by the State

Government. There are certain materials

which, prima facie, suggest that this has

affected the investigation. Not only that,

after the order dated 08.04.2011 was passed

by this Court, the State Government was

required to take immediate action. In spite

of the same, the said officers have been

transferred on 19.04.2011, just one day

prior to the date on which the reports were

to be submitted. The pertinent aspect is

that at para 3 of the order dated

08.04.2011, it is clearly stated that the

directions were to be complied with within

one week. However, it prima facie appears

that until the visit of the members of the

Central Forensic Laboratory and team of

AIIMS, the transfer orders were not passed.

Prima facie, the said action on the part of

the State, in spite of the specific

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direction by this Court, can be said to be

in breach and non-compliance of the

direction of this Court. However, upon the

inquiry further made by the Court, it has

been reported by the learned Advocate

General that Mr.Balwant Singh, Additional

Chief Secretary, Home Department, is the

authority who had to comply with the

direction. Hence, before we prima facie

conclude on the aspect as to whether it is a

case for initiation of action under the

Contempt of Courts Act for breach and non-

compliance to the order of this Court, an

opportunity may be given to the said officer

to submit his reply and explanation, if any,

and thereafter, appropriate action may be

initiated, if required. Hence, we direct

Mr.Balwant Singh, Additional Chief

Secretary, Home Department to submit a reply

and explanation, if any, as to why

proceedings under the Contempt of Courts Act

should not be initiated for committing

alleged breach and non-compliance of the

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directions issued by this Court for

transferring certain police officers as

requisitioned by SIT, pursuant to the order

passed by this Court. Such explanation shall

be submitted on, or before, 11.05.2011.

10. It has been submitted on behalf of the

SIT that NIA has been requested to supply

certain details which, in spite of

reminders, have not been supplied to the

SIT.

11. Hence, we direct that NIA shall supply

the requisite details as desired by SIT

within two weeks. Mr.Champaneri, learned

Assistant Solicitor General has agreed to

communicate the order to the NIA.

Mr.Champaneri has submitted that whatever

information is available will be supplied if

there is no legal impediment, and if there

is any legal impediment, the same shall be

reported to this Court, on the next date.

12. Mr.Saiyed appearing on behalf of

Shamima Kausar wanted to tender an affidavit

claiming to contain certain factual

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narrations of events that transpired at the

office of SIT, when the complaint was

tendered by Shamima Kausar.

13. We find that the said aspect need not

be looked into at this stage. If she is so

desirous, the same may be submitted to the

SIT who shall look into the matter, in

accordance with law.

14. S.O. to 12.05.2011 at 2.30 p.m.

Mr.Champaneri shall submit the names of the

suggested officers on that day.

15. Before parting with this order, we may

observe that the work which has been

undertaken by Mr.Karnail Singh as Chairman

of SIT, as transpires from his individual

report, is found to be satisfactory by us

and we record a sense of appreciation.

16. The reports submitted by the members of

SIT shall be kept in a sealed cover, in the

safe custody of the Registrar General.”

(Emphasis supplied)

14. It appears that thereafter on 12.5.2011,

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the matter once again came up for

consideration and upon the name suggested by

the Union of India for the Chairman of SIT in

place of Mr.Karnal Singh, this Court

reconstituted the SIT and passed the

following order, the relevant of which reads

from paragraph 4 onwards:-

“4. Mr.Sinha has left the matter to the

Court, whereas on behalf of the State of

Gujarat, some reservation was shown for

officer at Sr. No.3, Shri Rajesh Ranjan. As

the choice and options are available, we

find that we need not go into the aspects of

reservation expressed on behalf of the

State. Dr. Satyapal Singh, even amongst the

officers nominated is the Senior Most

Officer and he is, in any case, senior to

the remaining both the members of SIT.

Hence, we find that Dr. Satyapal Singh, IPS

(MH:80) can be nominated as the Chairman of

SIT. Consequently, SIT now shall comprising

of the members as under:-

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(a) Dr. Satyapal Singh, IPS (MH:80) shall be

the Chairman of SIT

(b) Mr.Mohan Jha, IPS – Member of SIT

(c) Mr.Satish Verma, IPS – Member of SIT

5. In view of the full-fledged

constitution of SIT, the functioning of SIT

shall now be as per the order dated

28.1.2011, vide paragraph 5 and the detailed

direction given therein, save and except

that in place of Mr.Karnal Singh, IPS as the

Chairman, Dr. Satyapal Singh, IPS shall be

the Chairman. Hence, ordered accordingly. It

is observed that in view of the aforesaid

direction now bifurcation of the work as

specified vide order dated 21.4.2011 as per

para 5 and 6 would no more survive. The

State shall issue necessary Notification for

such purpose within one week. SIT shall

further investigate into the matter and

submit the report on or before 23.6.011 in a

sealed cover. The report shall be submitted

to the Registrar (Judicial), High Court of

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Gujarat.

6. As per the above referred order dated

21.4.2011, it appears that the affidavit has

been filed by Mr.Balwant Singh, IAS,

Additional Chief Secretary, Home Department.

We may observe that the affidavit is not

with the details about the role played at

every level by the concerned officer from

the date on which the requisition was

received from SIT until the sanction for

transfer order was granted by the State

Government. We may record that unless and

until date-wise details with the role played

by the officer concerned for pursuing the

matter or not pursuing the matter with the

name of the officer concerned is given, it

may be difficult for the Court to hold the

responsibility, if such question arises in

future under the Contempt of Courts Act.

Further in absence thereof it cannot be

termed as sufficient explanation. We would

have directed the said Officer to file the

affidavit, however, on his behalf

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Mr.Trivedi, learned Advocate General has

stated that such affidavit shall be filed on

or before 23.6.2011. Hence, we direct that

the said affidavit with the aforesaid shall

accordingly be filed before this Court on or

before 23.6.2011.

7. It was next contended by the learned

Advocate General on behalf of the State by

tendering the affidavit of Shri Rahul Gupta,

IAS working as the Deputy Secretary, Home

Department, stating that the State has

formed the monitoring authority to be looked

after for the functioning of the Special

Task Force in all encounter matters and it

was submitted that as now SIT could not

function effectively, the investigation be

handed over to Special Task Force working

under the monitoring authority by this Court

for the alleged incident of encounter in

question.

8. We are unable to appreciate such a

stand on the part of the State, more

particularly when the said aspect was

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already considered by us in the order dated

24.9.2010 in Criminal Misc. Application

No.9832 of 2010, which has been disposed of

and the SIT was constituted vide the said

order. We may record that similar arguments

and contentions were raised when we

considered the aspects of reconstitution of

SIT vide order dated 24.9.2010 in Criminal

Misc. Application No.9832 of 2010. It was

observed by the Court at para 17 to 20,

which reads as under:-

“17. After the aforesaid exercise was

completed but before this Court proceeded to

pass the order for constitution of new SIT

by including the names of the officers which

this Court may find proper, the learned

Advocate General pressed into service, the

affidavit dated 20th September, 2010, filed

by Mr.Rahul Gupta, Deputy Secretary of the

Home Department, contending that the State

Government has issued a Notification dated

16.09.2010 for constitution of Monitoring

Authority and Special Task Force for

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investigation of the police encounter deaths

and it was also submitted that the Chairman

of the Monitoring Authority may be a retired

Honourable Judge of the Supreme Court of

India or a retired Honourable Judge of the

High Court of Gujarat.

18. It may also be recorded that in

Paragraph-8 of the affidavit, it has been

stated on behalf of the State Government as

under:

“8. I respectfully say and submit that under

the circumstances, while respectfully

reserving my liberty to press for the

reliefs prayed for in the Special Criminal

Application filed by the State of Gujarat

and reiterating the prayer that in view of

the changed circumstances, that is to say,

SIT of riot cases having expressed its

inability, this Honourable Court may be

pleased to permit the Special Investigation

Team, constituted by this Honourable Court

earlier, to complete the investigation under

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the monitoring authority, as contemplated

vide notification dated 16/9/2010 or the

investigation in question may be ordered to

be completed by the Special Task Force

contemplated vide same notification dated

16/9/2010 under the monitoring of the said

Monitoring Authority. In the respectful

submission of the State, the said course of

action would not only instill confidence and

credibility in the investigation, but would

result into a complete justice to all the

parties rather than constituting an agency

having officers of different police forces

since such a course of action has an inbuilt

risk of inevitable confusion in the

investigation for various reasons.”

19. When the learned Advocate General

Mr.Trivedi was called upon to clarify the

stand of the State Government on the aspects

of constitution of new SIT by this Court, it

was declared by the learned Advocate General

that the attempt on the part of the State

Government is by way of a suggestion that

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the investigation may be assigned to the

Special Task Force who is to work under the

Monitoring Authority instead of new SIT

comprising of the other officers who, in the

submission of the learned Advocate General,

could be officers from outside Gujarat

State. It was submitted that there is no

attempt on the part of the State to nullify

the effect of the judgment of this Court but

the Notification for constitution of Special

Task Force may be considered as one of the

options available to the Court instead of

constituting a new SIT. He also submitted

that prior to the Notification dated

16th September, 2010, for constitution of

Special Task Force and Monitoring Authority,

the Government has already given the names

of the officers reserving its rights and

contentions in the SLP pending before the

Apex Court. Therefore, it was submitted that

the said aspects may be considered before

passing further order.


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a judgment or order of the High Court in


the Constitution cannot be nullified by any

executive action of the Government, be it a

policy matter or constitution of a Special

Task Force or the constitution of the

Monitoring Authority, or otherwise.

Therefore, once this Court having recorded

the findings for constitution of a SIT

having a particular character and

composition, such decision on the part of

the State can hardly be considered as a

valid ground to recall the observations made

for constitution of SIT, thereby instilling

confidence and credibility to the

investigation. Under these circumstances,

based on the Notification, such suggestion

cannot be accepted. Further, when this Court

has already ruled for inclusion of certain

officers in the SIT, unwillingness on the

part of the State for induction of any

officer of IPS cadre from outside the State

can neither be countenanced nor endorsed. We

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may record that the Constitution provides

the competence of any State or the Union or

any constitutional authority, including the

judiciary, for protection of the rights of

citizens and controls the exercise of power

by any executive. In a Federal structure

which prevails in our nation, once this

Court has exercised the power under Article

226 of the Constitution, and has ruled for

assigning the investigation to a broad-based

SIT, such reservations expressed on behalf

of the State cannot be countenanced by this

Court. The aforesaid is coupled with the

circumstance that State has not filed any

review application for recalling of the

order. Further, even if the State, for the

reasons best known to it, is desirous of

constituting the Special Task Force or a

Monitoring Authority, it may be made

applicable to other cases, namely, encounter

cases other than the one considered and

examined by this Court in exercise of the

power under Article 226 of the Constitution.

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Further, if such aspect is considered, it

may also indirectly dilute the observations

made by this Court in the judgment and also

by the Apex Court, permitting the High Court

to constitute a new SIT. Hence, we find that

such ground should not operate as a bar or

by way of a second thought for non-

constitution of the SIT and the assignment

of investigation to it.”

9. The pertinent aspect is that when this

Court expressly ruled that by executive

action the judgement or the order of the

High Court in exercise of the power under

Article 226 of the Constitution of India

cannot be nullified, be it policy matter or

be it constitution of Special Task Force or

constitution of monitoring authority or

otherwise and when it was further observed

that even if the State for the reasons best

known to it, is desirous to constitute

Special Task Force or monitoring authority,

it may be made applicable to other cases

namely; the encounter cases other than the

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one considered and examined by this Court in


the Constitution of India, there was

absolutely no necessity on the part of the

State or its Officer to file such an

affidavit. The another aspect is that the

aforesaid order dated 24.9.2010, whereby the

aforesaid contentions were negatived and SIT

was constituted, was carried before the Apex

Court and no interference has been made.

Under these circumstances, the approach on

the part of the State to re-agitate

the question of transferring the

investigation to the Special Task Force can

hardly be canvassed and we deprecate the

same. In all fairness, it was expected for

the State to wait till induction of the

Chairman of SIT, who may be officer from the

Central Government and the submission could

have been made thereafter, but it appears

that the stand of the State as was earlier,

which has been negated, is to see that the

investigation may be assigned to the Special

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Task Force. We leave the matter at that

stage, without observing further but the

fact remains that as per the above referred

direction issued by us, full-fledged SIT has

been constituted and, therefore, in any

case, there is no reason to take a different

view as sought to be canvassed.

10. We may only record that the SIT, which

is constituted shall be given all assistance

by the State Officers and any impediment in

the function of the SIT in any manner, shall

be reported to this Court.

11. We may also record that Shri Girish

Laxman Singhal and others have preferred SLP

(Cr.) No.9489 of 2011 before the Apex Court,

but vide order dated 11.5.2011, the Apex

Court has clarified that its earlier order

dated 3.5.2011 shall not preclude the High

Court from hearing the matter and to pass

appropriate orders. However, it is clarified

that the present order, in any case, shall

be subject to the order that may be passed

by the Apex Court in the aforesaid SLP.”

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(Emphasis supplied)

15. The matter came to be considered once

again on 24.6.2011 and at that stage Dr.

Satyapal Singh, the Chairman of SIT

(hereinafter referred to as the ‘Second SIT’

for the same of convenience) tendered a

letter expressing certain difficulties and

prayed that he might be relieved as the

Chairman of SIT and the Court had passed the

following orders:-

“1.The sealed cover report is considered. As

per the report we find that, there was some

delay on account of the non-relieving of the

officer Dr.Satyapal Singh by Maharashtra

Government and he could not take over the

charge, but it appears that thereafter,

investigation is in progress. The report

also shows that the further investigation

including the team of expert is to be

consulted and the report is to be received.

2. Hence, the matter could be considered

for granting time for submitting the

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progress report. However, we may record that

Dr.Satyapal Singh, Chairman who is

personally present has tendered letter dated

24.06.2011 through private advocate Mr.

Mihir Thakor with M/s. Singhi & Co., and has

expressed certain difficulties about the

language and also for interrogation of one

of the batch mate of him, viz., Mr.P.P.

Pandey. He has also shown reservation about

difference of opinion between other two

members of SIT and therefore, he has prayed

that he may be relieved as Chairman of SIT.

3. As such, it was required for the

Chairman of SIT to make such request

including the letter to the amicus curiae

Mr. Yogesh Lakhani who is already appointed

by the Court to assist SIT as and when

required including in the proceeding of this

Court. That apart, we may also record that

when this Court considered the matter for

appointment of the Chairman vide order dated

12.05.2011, the view of the Central

Government was taken into consideration and

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at para 2, it was observed as under:

“Pursuant to the earlier order, Mr.P.S.

Champaneri, learned Assistant Solicitor

General on behalf of the Central

Government has tendered the names of

three officers; (1) Dr. Satyapal Singh,

IPS (MH:80), (2) Shri J.V. Ramudu, IPS

(AP:81), and (3) Shri Rajesh Ranjan,

IPS (BH:84) and he declared before the

Court that as per the instructions

received by him from the Ministry of

Home Affairs, Government of India, any

officer so nominated by this Court will

devote full time for ensuring that the

investigation is completed at the

earliest.”

4. Thereafter, having taken into

consideration the assurance of the

Central Government and also the view of

the learned Assistant Solicitor

General, Dr. Satyapal Singh was

appointed as Chairman. It is hardly

required to be stated that the officer

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so nominated by the Central Government

working in the cadre of IPS though

their services might have been

allocated to the State, it is within

the power of the Central Government to

make them to discharge the duty which

the Court may assign after concurrence

or after considering the views of the

Central Government. In all fairness,

the said officer could have moved the

Central Government in this regard or

through the Assistant Solicitor General

also. Be as it may, when the aforesaid

is put to Mr.Champaneri, learned

Assistant Solicitor General, he stated

that at the relevant point of time, his

instructions were that Dr.Satyapal

Singh would be the proper officer to

ensure that the investigation is

completed at the earliest and that is

why, he made submission accordingly

before the Court. He also submitted

that in view of the aforesaid

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reservation shown by Dr.Satyapal Singh,

he would like to have the views of the

Central Government in this regard and

he seeks one week time.

5. Considering the progress report, we

find that as the team of experts is to

visit and in any case further

investigation by SIT should not be put

on the grinding halt. Central

Government shall clearly report to this

Court about the continuation of

Dr.Satyapal Singh or otherwise for

nomination of any other officer if it

is of the view that the said officer

should be permitted to be relieved.

6. The progress report shall be submitted

in sealed cover on 14.07.2011. S.O. to

15.07.2011.

7. It is further directed that the

investigation shall continue in the

meantime.

8. The sealed cover report shall be kept in

the safe custody of the Registrar

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(Judicial).” (Emphasis supplied)

16. Thereafter, on 15.7.2011, on behalf of the

union of India, it was prayed to exempt Dr.

Satyapal Singh from the SIT and the names of

other officers, including Mr.Ramdu were

offered. This Court passed the following

order for reconstituting SIT by appointing

Mr.J.V. Ramudu as the Chairman of SIT

(hereinafter referred to as the ‘Third SIT’

for the same of convenience) and the

following order was passed :-

“1. As per the last order dated 24-06-2011

SIT has submitted the Progress Report of the

Investigation. The said Report be kept in

the safe custody of the Registrar

(Judicial).

2. This court in the aforesaid order at para

5 had observed:

“Considering the progress report, we

find that as the team of experts is to

visit and in any case further

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investigation by SIT should not be put

on the grinding halt. Central

Government shall clearly report to this

Court about the continuation of

Dr.Satyapal Singh or otherwise for

nomination of any other officer if it

is of the view that the said officer

should be permitted to be relieved.”

3. Today, Mr.P.S.Champaneri, learned

Assistant Solicitor General has tendered the

communication dated 14-07-2011 received by

him from the Government of India, Ministry

of Home Affairs, conveying that Dr.Satyapal

Singh, IPS, may be exempted from the

membership of SIT, Gujarat, and in his

place, the Ministry has identified three

Officers, as below:

(1) Shri J.V.Ramudu, IPS (AP: 81)

(2) Shri Rajesh Ranjan, IPS (BH: 84)

(3) Shri R.C.Arora, IPS (MP: 79)

4. We have heard the learned counsel

appearing for the original petitioner as

well as learned Advocate General.

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Considering the facts and circumstances,

Dr.Satyapal Singh, IPS, is relieved as the

Chairman of SIT, in view of the aforesaid

communication from the Central Government.

5. The next aspect to be considered is to

make appointment of another Chairman in his

place. The name of Shri J.V.Ramudu, IPS (AP:

81) was already there in the earlier list

and he was the person next to Dr.Satyapal

Singh in the said list.

6. Mr.Champaneri, learned Assistant

Solicitor General has categorically made a

statement, upon telephonic instructions from

the Joint Secretary, who is signatory of the

letter dated 14-07-2011, that the consent of

the concerned State Government is taken by

the Central Government and even Officer

concerned has also been conveyed for that

purpose. The Central Government assures the

Court that if the appointment is made by

this Court, the said Officer shall take up

the duty immediately and will complete the

investigation as assigned to SIT.

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Mr.Champaneri, learned Assistant Solicitor

General, has also stated that so is the case

of Shri Rajesh Ranjan, IPS (BH: 84), but for

Shri R.C.Arora, IPS (MP: 79), consent of the

concerned State is yet to be received since

the correspondence is on.

7. Under the circumstances, we find that

Shri J.V.Ramudu, IPS (AP: 81) be appointed

as the Chairman of SIT, Gujarat. Hence,

ordered accordingly.

8. The State Government shall issue

necessary Notification in this regard on or

before 19-07-2011. The said officer shall

join the duty immediately upon the

publication of the Notification and continue

with the investigation in light of the

earlier orders passed by this Court.

9. As it has been stated on behalf of SIT,

that the Report from FSL, New Delhi, may

take some time, we find that the matter can

be posted after some time. In the meantime,

let the Reports be received from the experts

of FSL, New Delhi, as well as AIIMS, New

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Delhi, and the investigation be also

continued further. The progress Report shall

be submitted in the sealed cover, on or

before 04-08-2011.

10. S.O. to 05-08-2011 at 2:30 p.m.

11. It is observed that SIT shall ensure

that appropriate protection is extended to

the witnesses and if any requisition is made

by SIT to the State for providing extra

protection to the witnesses, the same shall

be made available by the State Government.”

17. Thereafter, Union of India filed an

application being Criminal Misc. Application

No.10244 of 2011, contending that Mr.Ramudu,

who was appointed as Chairman of SIT, would

not be in a position to take up the

assignment because of his ailment and,

therefore, the prayer was made to consider

the name of another officer to be the part of

SIT. The said application came to be

considered by this Court on 19.7.2011 and the

following order was passed :-

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“1. Leave to correct the name of

Mr.J.V.Ramudu in place of Dr. Satyapal Singh

on page 6 para 4 as well as leave to correct

the description of Mr.R.R. Verma, IPS as

(BH:81) and Mr.R.C.Arora, IPS as (MP : 79).

2. Rule. Mr.Lakhani for opponent No.1,

Mr.Mukul Sinha for opponent No.2 and

Ms.Sangeeta Vishen, learned APP for opponent

No.3 waive notice of Rule.

3. The present application is preferred by

the Union of India with a prayer to vary

and/or to modify the order dated 15.07.2011

passed by this Court in Criminal Misc.

Application No. 15981/10 so as to consider

the name of other officer to be a part of

the Special Investigation Team (“SIT” for

short).

4. We have heard Mr.Champaneri, learned

Assistant Solicitor General for the

applicant, Mr.Lakhani for SIT, Mr.Sinha for

opponent No.2 and Mr. Kamal Trivedi, learned

Advocate General with Mr.Prakash Jani,

learned PP with Ms.Sangeeta Vishen, learned

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APP for the State.

5. It appears that the assurance on behalf

of the Central Government was recorded by

this Court and this Court acted upon the

same, and thereafter order dated 15.07.2011

came to be passed whereby Mr. J.V. Ramudu,

IPS (AP: 81) was appointed as the Chairman

of SIT. When the application is moved, the

learned Advocate General has also tendered

the copy of the notification dated

18.07.2011 for reconstitution of SIT as it

was so directed by this Court to issue the

notification on or before 19.07.2011.

6. The circumstances as narrated in the

application at paragraph 4 reads as under:

“4. The applicant states and submits

that the applicant-Union of India is

compelled to bring certain developments

to the notice of the Hon'ble Court with

regard to the nomination of a member of

the SIT. The applicant states and

submits that the Chief Secretary, State

of Andhra Pradesh, on 18.07.2011 has

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conveyed to the applicant-Union of

India to the effect that, “Shri

J.V.Ramudu, IPS (AP: 81), M.O.S.

(Member of Service) has underwent a

rare and complex surgery for cardio-

maxilo facial surgery of the right

mandible at Naryana Hrudayalaya,

Bangalore on 12th May, 2011 and in view

of the serious nature of the surgery

and regular post operative checkups, he

was in Bangalore till 30th May, 2011.

Two such post-operative reviews have

been held during Mid-June and early

July, 2011 and there is a severe

limitation and his food intake as well

as speech due to resurrection of the

right mandible and that he is still

under severe pain. The DGP has,

therefore, requested to inform about

the inability of the MoS to serve on

the SIT on genuine medical grounds”.

In view of the aforesaid facts and

circumstances, the applicant-Union of

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India regrets the inconvenience caused

to this Hon'ble Court in selection of a

member of the SIT as new facts have now

come to the knowledge of the Government

which were not known earlier. The

applicant also states and submits that

in light of the delicate medical

condition of the nominated Officer

Dr.Satyapal Singh, IPS (AP: 80), the

applicant-Union of India submits that

under the given circumstances, the said

Officer may not be available to be a

part of SIT.”

7. We find that the officer Mr. J.V.

Ramudu because of physical ailment of

cardio-maxilo facial surgery, he is required

to undergo regular medical checkup and

therefore, the desire has been shown by the

Union of India to the effect that he will

not be in a position to take up the

assignment because he has limitation for

food intake as well as in speech and he

undergoes severe pain also for the said

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injury. Even otherwise also, if the officer

concerned has no inclination or zeal to work

as the Chairman of SIT, he will not be able

to bring about the result as expected by the

Court while ordering investigation through

SIT.

8. Under the circumstances, we find that

it would be a case to change the Chairman of

SIT, but subject to taking serious note of

the conduct and approach on the part of

Union of India as may be stated hereinafter.

9. Concerning to the appointment of the

new officer, the details have been given in

the application at para 5 (after correction

as permitted) as under:

(a) Shri R.R. Verma, IPS (BH : 78). The

Officer is on Central deputation since

10.02.2009 and currently posted as ADG,

CISF. He has expressed his willingness

to work as a member of SIT.

(b) Shri R.C. Arora, IPS (MP : 79).

Written concurrence of the officer and

from the DGP, Madhya Pradesh is

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available. Formal concurrence of the

State Government is awaited.

(c) Shri Vivek Dubey, IPS (AP: 81).

DGP, Andhra Pradesh, has telephonically

conveyed his concurrence for deputation

of the officer for this assignment. The

officer has also expressed his

willingness. A proposal is being sent

by DGP, AP to State Govt. in this

regard.”

10. We find that in past when the officer

of the IPS Cadre working in the respective

State Government was appointed, it has

created problem in functioning of SIT, may

be on account of non-availability of

concurrence of the State Government or for

the personal circumstances of the officer

concerned through which possibly Central

Government or the State Government concerned

are not in a position to prevail over so as

to enforce the duty cast upon him/them.

11. In our view, such is also a very

unhappy state of affairs. If the Union

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Government is unable to command the officer

when a mandate has been given by this Court,

it will never bring about the truth for

which the direction were issued by this

Court. We leave it at that stage on the said

aspect, but it appears to us to appoint an

officer who is directly working under the

Central Government not concerned with the

State Government so as to ensure that he

takes up the duty at the earliest and he

undertakes the work with full zeal and with

spirit with which he has to work as Chairman

of the SIT. It appears that out of the

aforesaid three officers, Mr.R.R. Verma, IPS

(BH : 78) has expressed his willingness to

work as member of SIT and the Central

Government has also shown willingness to

nominate him for the duty to be performed as

Chairman/member in the SIT.

12. Further, it appears that he is working

as an Additional D.G. under CISF, which is a

paramilitary force of the Union of India,

expected with more degree of discipline.

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13. Hence, Mr.R.R. Verma, IPS (BH : 78) is

appointed as the Chairman of the SIT in

place of Mr.J.V.Ramudu, IPS (AP: 81). The

necessary notification shall be issued by

the State Government on or before

22.07.2011. The said officer shall

immediately take over the duties within one

week thereafter and proceed with the

investigation as per the order passed

earlier.

14. The earlier order dated 15.07.2011 in

Criminal Misc.Application No.15981/10 shall

stand modified accordingly.

15. However, before parting with, we find

it proper to take serious note of the way in

which the officers were earlier nominated by

the Union of India and more particularly the

last nomination of Mr.J.V.Ramudu, IPS (AP :

81). We need not reproduce the assurance

given on behalf of the Central Government as

the same is already a part of the record of

the order dated 15.07.2011. But prima facie,

it appears that Mr. Champaneri, learned

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Assistant Solicitor General, acted on the

instructions received by him vide

communication dated 14.07.2011 which was

tendered to the Court at the relevant point

of time addressed by Joint Secretary to the

Government of India to Mr.Champaneri and as

recorded in paragraph 6 of the earlier order

dated 15.07.2011, before making statement,

the instructions were conveyed to

Mr.Champaneri telephonically by the Joint

Secretary, the very officer who is signatory

of the said communication Mr.Diptivilasa.

The another pertinent aspect is that in the

very communication dated 14.07.2011, at

paragraph 3, there is a note that the

communication has the approval of the

competent authority in this Ministry which

normally may be the Secretary, Ministry of

Home Affairs, Union of India.

16. If there is a casual approach

ultimately found by this Court or any

attempt to mislead this Court, it would

attract further serious action in this

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regard. We hardly need to record that the

sanctity of the proceedings and orders of

this Court are required to be respected by

one and all and the first it should come

from the Union of India which is a Union

Government. If the sanctity of the

proceedings before a constitutional court is

not maintained by the Union of India, it

would stake democratic structure itself of

the nation. In our prima facie view, in

order to see that nobody is allowed to have

foul play with the Court proceedings or any

callous or casual approach in the matter,

this Court will have no option but to

maintain the authority of the Court and

stern action may be called for.

17. However, before taking further decision

in this regard, we find it proper to give

opportunity to the Secretary, Ministry of

Home Affairs as well as the Joint Secretary,

Mr. Diptivilasa to submit their written

explanation separately with the documentary

proof thereof about the process of file

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stagewise and the vacuum if any during the

period in the said movement of the file and

the communications thereof. The Secretary,

Ministry of Home Affairs shall also in the

said affidavit report to this Court about

any remedial measure if the Government of

India is desirous to take.

18. Such explanations shall be submitted on

or before 05.08.2011.

19. S.O. to 05.08.2011 for further order.”

18. The relevant aspect is that, in place of

Mr.Ramudu, Mr.R.R. Verma was appointed as the

Chairman of the SIT and a new SIT was

constituted (hereinafter referred to as the

‘Fourth SIT’ for the same of convenience).

Further on account of the casual approach on

the part of the Union of India, an

explanation was ordered to be submitted,

before this Court to enable the Court to

further consider the matter, maintain the

authority of the Court and take stern action

in this regard.

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19. Gopinath Pillai – original petitioner of

Special Criminal Application No.1850 of 2010

had preferred the application being Criminal

Misc. Application No.10011 of 2011 for the

reliefs, inter alia, to remove Dr. Satyapal

Singh as Chairman of SIT and further to hold

an inquiry as to how the witnesses were

influenced to retract from their statements

and other reliefs regarding the progress of

the investigation, etc. The said application

came to be considered by this Court and the

following order was passed on 5.8.2011:-

1. The present application has been

preferred by the application – original

petitioner of Special Cri. Application

No.1850 of 2009 for seeking appropriate

directions, which shall be referred to

hereinafter.

2. We have hard Mr.Mukul Sinha, learned

Counsel appearing for the applicant,

Mr.Kamal Trivedi, learned Advocate

General with Mr.P.K. Jani, learned

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Government Pleader for the State and

Mr.Lakhani, learned Counsel for SIT. The

presence of CBI is not required at this

stage.

3. It appears that the first prayer for

removal of Dr. Satyapal Singh as Chairman

of SIT would no more survive on account

of the subsequent development vide order

passed by us in Criminal Misc.

Application No.15981 of 2010, whereby Dr.

Satyapal Singh has been relieved as

Chairman of SIT and Mr.R.R. Verma has

been appointed as the Chairman and he has

also taken over as the Chairman of SIT.

4. The second aspect, which has been pressed

in service is to direct the inquiry as to

how the witnesses were influenced to

retract their statements and the

appropriate action against the person(s)

concerned, who is responsible for

retracting of the statement of the

witnesses. The learned Counsel in support

of the said submission, has relied upon

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the statement made in the application at

paragraph 1.k and 1.l, which has been

stated as under:-

“(1.k) It is submitted that Shri Satish

Verma, IPS had filed a detailed

affidavit on 27.1.2011 in Criminal

Misc. Application No.15981 of 2010

pointing out several acts and omissions

on the part of the Chairman Shri

Karnail Singh as well as the other

Member Shri Mohan Jha, which were not

assisting him in the proper

investigation of the case. In paragraph

14.2, Shri Satish Verma has clearly

pointed out that one Motibhai Taljabhai

Desai had given statement that would be

severally damaging the FIR version of

the incident. In paragraph 16, it is

pointed out that there were

circumstances to indicate that Shri

Mohan Jha was connected with the

retraction statement by Motibhai

Taljabhai Desai and also the filing of

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the complaint against Shri Satish

Verma. Similarly, it is learnt that the

statements of other witnesses,

including one Police Driver, Shri Shiv

Singh, which were recorded by SIT, have

also been retracted later on. In a news

item published by the Times of India

dated 12.7.2011, it has been stated

that several witnesses have retracted

their statements. It would thus, appear

that taking advantage of the inaction

on the part of the Chairman, Shri

Satyapal Singh, the proposed accused

have been active in influencing and

coercing the witnesses to retract their

statements, which were implicated.

(1.l) In the aforesaid facts and

circumstances, an impression is created

in the mind of the applicant that the

investigation being conducted by SIT

till now has yielded no concrete result

and on the contrary, the conduct of the

two Chairmen have led to the deliberate

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delay in taking action. It also appears

that the investigation is being

systematically sabotaged by the

persons, who want to scuttle the

investigation. The systematic

retraction of statements of the

witnesses that would implicate the

police officers is being carried out by

the interested persons. In the facts

and circumstances, therefore, the

applicant has moved the present

application for reviewing the order

dated 12.5.2011 and modifying the same

to remove the Chairman Shri Satyapal

Singh from the Chairmanship of SIT and

appoint Shri Ramudu or any other Police

Officer, who can effectively conduct

the investigation.”

4.We find that there is considerable

substance in the aforesaid submissions

inasmuch as in the affidavit filed by

Mr.Satish Verma, one of the Members of

the SIT dated 27.1.2011 in Criminal Misc.

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Application No.15981 of 2010, it has been

stated at paragraph 5.3 as under:-

“5.3 I state that Shri Mohan Jha had

mentioned what he did(as quoted in para

10 of my note reproduced above) on

25th December, 2010 afternoon after he

had received a phone call. It is not

known to me who called him with that

input. The complaint of shri Moti Talja

Desai, Head Constable, was received

later in the evening by the applicant.

So it is clear that somebody who knew

about the complaint even before it was

given to the applicant had informed

Shri Mohan Jha about it. Earlier also,

when a subordinate officer, Shri FS

Pathan, DySP, was recording the

statement of Shri Raju Jeerawal at

Mehsana on 18thDecember, 2010, Shri

Mohan Jha had come to know about it

from somebody who was interested in

watching the investigation, and had

called up Shri Pathan to ask on whose

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instructions Raju Jeerawala had been

called.”

5.We may also record that at paragraph 5.4

he stated, thus, the relevant of which

reads as under:-

“5.4 I must elaborate that Shri Moti

Talji Desai, Head Constable, was

examined by all the three officers of

the SIT in the Senior Police officers

Mess, Duffnala, Shahibaug on

22nd December, 2010 from approximately

2210 to 2250 hrs. This witness was

specifically told by the applicant that

he is not being promised anything, and

that whatever he says may also make him

liable. Thereafter, the witness had

made all the disclosures. A Police

Inspector of Delhi named Shri Sunil

Mittal, who was brought along by the

applicant, was also present. Then the

applicant and Shri Mohan Jha had left

after telling me that his statement may

be recorded. I had done that from 2300

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hrs to 0150 hrs of 23rd December, 2010

and then video recorded the witness

reading his statement and confirming it

to be a true record of what he stated.

I specifically add that the gist of

that statement is nothing but what the

witness had said in the presence of the

applicant and Shri Mohan Jha. ...”

6.The other part may not be relevant at

this stage.

7.We take serious note that two important

aspects; one is the statement made by the

witnesses Mr.Moti Talji Desai and

Shivsingh and others, who are the

important witnesses for the issue

involved in the matter. It is hardly

required to be stated that once the

statement is made by any person before a

police officer in the investigation and

thereafter if the retraction is to be

made in normal course, it is to be in the

Court. If subsequent statement is made

before the very police officer or an

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officer successor in office, at least one

statement goes wrong or rather would be

false and can be stated as misleading to

a Government Officer and also to some

extent, it can also be said to assist or

help the accused to get away from the

clutches of law. In such circumstances,

it would also be an offence under IPC and

other relevant provisions. As we can

notice that two Members of SIT namely;

Shri Satish Verma, had recorded the

statement and thereafter an allegation

has been made against Shri Mohan Jha for

playing role in helping the retraction of

the statement or at least helping the

witnesses to back out from the statement,

we find that the Chairman of SIT, Mr.R.R.

Verma himself should investigate the said

aspect. During the course of the

investigation, it will be for the

Chairman of SIT to find out whether any

person has played any role in maneuvering

the witness or helped him to get the

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statement retracted and thereby to

frustrate a valuable piece of evidence of

the investigation or not. While

undertaking the said investigation, the

Chairman of SIT will be at liberty to

interrogate, including, if required,

after arrest, custodial interrogation of

the person concerned. He will be at

liberty to take help of the officer of

his choice for investigation and be it

mentioned that none of the other Members

of SIT shall be involved in such

investigation, but with a note of

caution, that if he finds any serious

material against any of the Members of

the SIT having played any role in the

aforesaid episode, he shall not take any

action against the said member, but shall

submit a report in sealed cover to this

Court for such purpose.

8.As we have recorded earlier, there was a

rift between the two Members of SIT

namely; Shri Mohan Jha and Shri Satish

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Verma. We have in our earlier order with

a view to see that SIT functions with all

discipline as expected for a Police

Force, stated that the functioning and

discipline of the SIT shall be in the

manner as stated in sub-paragraph (2) of

paragraph 5 of the order dated 28.1.2011

in Criminal Misc. Application No.15981 of

2010, save and except that the Chairman

of SIT now is different. We have also

considered the subsequent report tendered

in sealed cover of individual members of

SIT and the Chairman of SIT when SIT was

comprising of Shri Karnal Singh being the

Chairman, Mr.Mohan Jha and Mr.Satish

Verma being Members. In those reports

also, we find that there was substantial

disagreement between the two Members of

SIT namely; Shri Mohan Jha and Shri

Satish Verma. We may not deal with the

contents in detail, since the conclusion

on the aspects as to whether the

encounter was genuine or fake is yet to

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be arrived at, but the aforesaid facts at

least lead us to assign more power and

duties upon the Chairman of SIT, who is

an Officer of the Central Government from

a Paramilitary Force. Hence, we modify

the earlier order and direct the

functioning of the SIT as under:-

(a) The Chairman of SIT will be the

sole officer to finally decide about

the investigation to be carried out

either by himself or through an officer

whom he may find it proper to get the

issue investigated. The other members

of SIT will have right to express the

opinion, but it will be for the

Chairman to ultimately take final

decision in the matter. We may clarify

that such investigation shall be on the

aspects other than referred to herein

above for the episode of recording the

statements of aforesaid witnesses and

retraction thereof by them.

(b) The Chairman of SIT will have right

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to decide the mode and manner of

investigation, the mode and manner for

taking help of the State machinery or

any other Governmental Authority, but

as observed earlier, the Members shall

be at liberty to express the views but

the final decision shall be taken by

the Chairman.

(c) The Chairman of SIT shall submit

report in a sealed cover of the further

investigation. He may record different

views, if any, of the other members on

the aspects, if touching to the

issue(s) involved.

(d) The Chairman of SIT shall be at

liberty to take help of Amicus Curiae

in the event of any complication in law

or guidance on the legal aspect is

required.

9.The aforesaid shall be the manner and

method of further functioning by SIT. As

the report of the experts namely; AIMS

and Central Forensic Laboratory is yet to

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be received and as new Chairman has taken

over recently, we find that the

investigation on the above referred

aspect would take some time, we,

therefore, find it proper to give time up

to 7th September, 2011. By this time,

sincere and full efforts shall be made by

SIT to complete the investigation and the

report shall be submitted in a sealed

cover on 8thSeptember, 2011 about the

progress and, the conclusion of the

investigation, if any.

10.We may record for the purpose of

clarification that during the course of

investigation, if the officer so finds it

proper, he shall have all powers as

available with the Investigating Officer

under Cr.P.C., including for of making

search, seizure, arrest etc., in

accordance with law.

11.It appears that in view of the

aforesaid direction, the prayer D of the

application for submission of separate

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report is not called for at this stage.

Further, as the aspects of genuineness of

the encounter or fake is yet to be

finalized, the prayer for filing of

separate and independent FIR is not

granted at this stage.

12.The application is disposed of

accordingly. The copy of this order shall

be kept in the proceedings of Criminal

Misc. Application No.15981 of 2010.”

20. The present matter thereafter once again

came to be considered on 9.9.2011 and this

Court after pursuing the report of SIT in a

sealed cover found it proper to issue

following directions, the relevant of which

reads as under:-

“2. Considering the contents of the

Reports, we find it proper to issue the

following directions:

(I) The State Police officers who are

directly or indirectly connected with the

functioning of SIT shall not be transferred

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outside Ahmedabad until the work of SIT is

completed. One officer Shri Mistri, who is

stated to have been transferred outside

Ahmedabad, shall be re-posted in Ahmedabad

and shall not be transferred thereafter

until the work of SIT is completed. The

State shall carry out the aforesaid

direction.

(II) The Central Government officers, who

have been requisitioned by the Chairman of

SIT, shall join the duty at the earliest and

all cooperation shall be rendered by the

Central Government as and when it is so

desired by the Chairman of SIT.

(III) The Board of Experts, to whom the

queries have been raised after receipt of

the Report by the Chairman of SIT shall, at

the earliest, reply and forward their

responses to the SIT within a period of two

weeks. It will be open to the Chairman of

SIT to communicate the order to the Board of

Experts.

(IV) Further action, if any required, shall

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also be undertaken by the Chairman of SIT

and the same shall be completed preferably

within two weeks thereafter.

3. Attempt shall be made to submit Report

on the aspect of genuineness of the

encounter, or otherwise, so as to order

further action, and the Report shall be

submitted on or before 05.10.2011.

4. S.O. to 07.10.2011 at 2:30 p.m. for

further orders.”

21. Again the progress report was submitted

on 7.10.2011 and this Court passed the

following order:-

“1. The progress report of investigation is

submitted by SIT. As per the report, certain

further queries are put to the Board of

Experts and there is likelihood of

discussion before the end of this month. It

further appears that 'psycho analysis' test

is also to be conducted on the witnesses,

who have retracted from their statements.

2. Under these circumstances, we direct

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that all such procedures be completed on or

before 11.11.2011. Thereafter, all material

will be considered by the SIT and the report

shall be submitted on or before

18.11.2011. S. O. to 21.11.2011 at 2.30 p.m.

The report submitted by the SIT be kept in a

sealed cover in the safe custody by the

Registrar (Judicial), Gujarat High Court.”

22.Thereafter, the said report (8th) has been

submitted on 18.11.2011 by the SIT and the

unanimous conclusion of SIT is as under:-

(I) The materials on record do not support

the facts and circumstances mentioned

in the FIR.

(II) Analyses of the circumstances and the

scientific evidence as detailed in the

foregoing chapters, indicate that the

incident as projected to have had

happened on 15.6.2004, does not conform

to the ingredients of a real police

encounter, in order to justify the

killings while exercising the right of

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self-defense and, therefore, the

genuineness of the police encounter as

tried to be brought out in the FIR, is

quite suspect and lacks credibility,

suggesting that the encounter was not a

genuine one.”

23. We may state that the final report, which

is the eighth progress report, concluding the

aforesaid comprises of 63 pages and 11

annexures, but as the disclosure of the

material therein at this stage may affect the

investigation thereafter, to be undertaken in

accordance with law, we have found it proper

not to reproduce or refer to the findings on

each point by the SIT. We only state that

the detailed investigation and the report as

submitted by the SIT in its final (8th)

progress report goes to suggest that the

encounter was not genuine.

24. In view of the aforesaid facts and

circumstances, as further directions in this

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regard are called for to the SIT and further

to put the law into motion, so as to reach

its logical end, we have heard the learned

Counsel appearing for the parties on the

aspect of registration of another/fresh FIR

and also on the aspect of which Agency should

be entrusted with the investigation thereof,

namely; whether (a) State Agency; or (b) SIT

itself; or (c) NIA; or (d) CBI.

25. We have heard Mr.I.H. Sayed, learned

Counsel for Samima Kausar – the petitioner of

Special Criminal Application No.822 of 2004,

Mr.Mukul Sinha, learned Counsel for Gopinath

Pillai – original petitioner of Special

Criminal Application No.1850 of 2009,

Mr.Yogesh Lakhani, learned Amicus Curiae

appointed by the Court for SIT, Mr.Kamal

Trivedi, learned Advocate General with

Mr.Prakash Jani, learned Public Prosecutor

assisted by Ms.Sangeeta Vishen, learned APP

and Mr.P.S. Champaneri, learned Assistant

Solicitor General on behalf of the Union of

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India.

ANOTHER/FRESH FIR

26. The first aspect that deserves to be

considered is that of the registration of

another/fresh FIR in view of the conclusion

arrived at by the SIT unanimously, in its

final (8th) report.

27. Before we proceed to examine the factual

aspects, we may first refer to the law on the

subject. In case of Upkar Singh vs. reported

in 2004(13) SCC, 292, the Apex Court had an

occasion to consider the aspect for

registration/filing of another/fresh FIR and

at paragraph 17, it was observed as under:-

“17. It is clear from the words

emphasized hereinabove in the above

quotation, this Court in the case of

T.T. Antony vs. State of Kerala &

Ors. has not excluded the registration

of a complaint in the nature of a

counter case from the purview of the

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Code. In our opinion, this Court in

that case only held any further

complaint by the same complainant or

others against the same accused,

subsequent to the registration of a

case, is prohibited under the Code

because an investigation in this

regard would have already started and

further complaint against the same

accused will amount an improvement on

the facts mentioned in the original

complaint, hence will be prohibited

under Section 162 of the Code. This

prohibition noticed by this Court, in

our opinion, does not apply to counter

complaint by the accused in the 1st

complaint or on his behalf alleging

a different version of the said

incident.”

28. Thereafter, in the case of Nirmal Singh

Kahlon v State of Punjab and Anr., reported

in (2009) 1 SCC, 441, the second FIR was

lodged by the CBI on a wider canvas based on

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the primary inquiry conducted by the CBI and

after having collected large number of

materials and recording of the statements.

The earlier FIR contained certain misdeeds of

the individuals and there was no clear

reference to the commission of the crime by

the office-bearers of the Panchayat in the

selection process and the aspect came up for

consideration before the Apex Court

incidentally was for examining the

maintainability of the second FIR. It was

observed by the Apex Court at paragraph 67 as

under:-

“67. The second FIR, in our opinion, would

be maintainable not only because there were

different versions but when new discovery is

made on factual foundations. Discoveries may

be made by the police authorities at a

subsequent stage. Discovery about a larger

conspiracy can also surface in another

proceeding, as for example, in a case of

this nature. If the police authorities did

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not make a fair investigation and left out

conspiracy aspect of the matter from the

purview of its investigation, in our

opinion, as and when the same surfaced, it

was open to the State and/ or the High Court

to direct investigation in respect of an

offence which is distinct and separate from

the one for which the FIR had already been

lodged.”

29. The question once again came up for

consideration before the Apex Court in the

case of Rubabbuddin Sheikh v. State of

Gujarat and Others, reported in (2010) 2 SCC,

200, wherein the facts could now be said as

similar to the facts in the present case , as

may be stated by us hereinafter and the same

can be traced at paragraph 1 of the said

decision, which reads as under:-

“1. Acting on a letter written by the writ

petitioner, Rubabbuddin Sheikh, to the Chief

Justice of India about the killing of his

brother, Sohrabuddin Sheikh in a fake

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encounter and disappearance of his sister-

in-law Kausarbi at the hands of the Anti-

Terrorist Squad (ATS), Gujarat Police and

Rajasthan Special Task Force (RSTF), the

Registry of this Court forwarded the letter

to the Director General of Police , Gujarat

to take action. This letter of the Registry

of this Court was issued on 21.1.2007 (sic

21.1.2006). After about six months and

after several reminders, the Director

General of Police, Gujarat, directed Ms.

Geetha Johri, Inspector General of Police

(Crime), to inquire about the facts stated

in the letter. A case was registered as

Enquiry No.66 of 206. From 11.9.2006 to

22.1.2007 four interim reports were

submitted by one V.L. Solanki, Police

Inspector, working under Ms. Johri.”

30. The Apex Court, after having taken into

consideration the Eight Action Taken Reports

and having found that the police authorities

in the State had failed to carry out a fair

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and impartial investigation as envisaged by

the Apex Court, and as no fresh FIR was filed

despite the preliminary investigation, made

observations at paragraphs 68 to 71 as

under:-

“68. From the above factual discrepancies

appearing in eight Action Taken Reports and

from the charge sheet, we, therefore, feel

that the police authorities of the State of

Gujarat had failed to carry out a fair and

impartial investigation as we initially

wanted them to do. It cannot be questioned

that the offences the high police officials

have committed was of grave nature which

needs to be strictly dealt with.

69. We have observed that from the record,

it was found that Mr.V.L.Solanki, an

investigating officer, was proceeding in the

right direction, but Ms.Johri had not been

carrying out the investigation in the right

manner, in view of our discussions made

herein above. It appears that Ms.Johri had

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not made any reference to the second report

of Solanki, and that though his first report

was attached with one of her reports, the

same was not forwarded to this Court.

Therefore, we are of the view that her

mentioning the criminal background of

Sohrabbuddin and the discussion among the

accused officers concerning Sohrabbuddin was

meant to obfuscate the enquiry.

70. In our view , the investigation of

crime was carried out dehors the mandate

contained in the Cr.P.C. and particularly

Chapter XII containing Section 154-176 of

the Code. There had been no fresh FIR filed

despite primary investigation No. 66 to make

the same the basis for investigation and

trial.

71. In the case of Sheikh Hasib alias

Tabarak v. The State of Bihar [(1972) 4 SCC

773], it was held that the object of FIR,

from the point of view of the investigating

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authorities, is to obtain information of the

alleged criminal activity so as to take

suitable steps for tracing and bringing to

book the guilty party. Admittedly, the FIR

dated 16th of November, 2005 which was filed

following the alleged encounter was a

fabricated one and, therefore, it could not

have formed the basis of the real

investigation to find the truth.”

31. The aforesaid shows that if the FIR was

filed for an alleged encounter and

subsequently in the investigation, the truth

is found to be otherwise, including the

encounter not being genuine, it may call for

filing of another/fresh FIR for commission of

other crimes, resulting in the death of the

persons, which may further be required to be

investigated.

32.In case of Babubhai v. State of Gujarat,

reported in 2010 (12) SCC, 254, on the aspect

of filing of two FIRs, the Apex Court has

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elaborately dealt with the case law from

paragraph 13 onwards, after considering its

earlier decisions in cases of Ram Lal Narang

v. State (Delhi Admn.) (1979) 2 SCC (Cri) 479;

T.T. Antony v. State of Kerala, (2001) 6 SCC

181; Upkar Singh v. Ved Prakash, (2004) 13 SCC

292, Rameshchandra Nandlal Parikh v. State of

Gujarat, (2006) 1 SCC 732, Nirmal Singh

Kahlon v. State of Punjab, (2009) 1 SCC 441,

and further observed at paragraphs 20 and 21

as under:-

“20. Thus, in view of the above, the law

on the subject emerges to the effect that an

FIR under Section 154 Cr.P.C. isa very

important document. It is the first

information of a cognizable offence recorded

by the Officer In-Charge of thePolice

Station. It sets the machinery of criminal

law in motion and marks the commencement of

the investigation which ends with the

formation of an opinion under Section 169 or

170 Cr.P.C., as the case may be, and

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forwarding of a police report under Section

173 Cr.P.C. Thus, it is quite possible that

more than one piece of information be given

to the Police Officer In-charge of the

Police Station in respect of the same

incident involving one or more than one

cognizable offences.

21. In such a case, he need not enter each

piece of information in the Diary. All other

information given orally or in writing after

the commencement of the investigation into

the facts mentioned in the First Information

Report will be statements falling under

Section 162 Cr.P.C. In such a case the court

has to examine the facts and circumstances

giving rise to both the FIRs and the test of

sameness is to be applied to find out

whether both the FIRs relate to the same

incident in respect of the same occurrence

or are in regard to the incidents which are

two or more parts of the same transaction.

If the answer is affirmative, the second FIR

is liable to be quashed. However, in case,

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the contrary is proved, where the version in

the second FIR is different and they are in

respect of the two different

incidents/crimes, the second FIR is

permissible. In case in respect of the same

incident the accused in the first FIR comes

forward with a different version or counter

claim, investigation on both the FIRs has to

be conducted.” Emphasis supplied

33.The aforesaid makes it clear that if the

version of the first FIR or the allegation

made in the first FIR about the encounter

having taken place and life having been lost

by the person concerned in such alleged

encounter that is not found to be genuine,

the resultant effect would be that the death

of the victims could have occurred at a

different place, different time and, may be,

in a different manner. But it is undisputed

position that the concerned police officers

have entrusted the dead-body of the deceased

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for the postmortem report and other inquest

panchnama, etc. If the investigation already

made in connection with the FIR for the lives

lost in the encounter reveals that lives were

not lost in a genuine encounter, and if the

ingredients of a genuine police encounter are

not satisfied to justify the killings, and

the credibility of the encounter itself is

suspect suggesting that it was not genuine,

then it would be a case for registration of

another/fresh FIR, for commission of the

alleged crime based on the findings and the

conclusion so recorded by the SIT as referred

to herein above.


if the deceased have not lost their lives in

an encounter, in any case, it would make it a

case for the death of the deceased through

any action by the culprit other than that of

so-called encounter. It may also result into

causing death of the person concerned through

any mode or action of conspiracy or

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commission of crime, which will have to be

investigated by the team of investigating

officers or the agency as may be considered

proper by this Court. It is also hardly

required to be stated that if the action or

the crime is for taking life of somebody or

for causing death of somebody, it would be an

offence under Section 302 of IPC and may also

attract other offences of IPC or any other

relevant provisions of law. We do not wish

to express any concrete or conclusive

observations on the said aspect since the

fresh/another FIR is yet to be registered and

the investigation thereof is yet to take

place, and any observation made by this Court

on the aspects of commission of crime at a

place or in a mode or the manner other than

that of an encounter, may also prejudice the

rights of the alleged accused at different

stages, including that of trial, if any such

circumstances arise. We may also clarify

that the aforesaid observations are made only

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to record the reasons for requirement of the

registration of fresh/another FIR based on

the premise that the encounter was not

genuine. Hence, it appears that appropriate

directions will be required to be given to

the Chairman, SIT for registration of

another/fresh FIR of the incident in

accordance with law at a police station of

the concerned area within whose jurisdiction

alleged offence could be said to have been

committed as per the investigation papers of

SIT. The Chairman of SIT even if is not sure

about the exact place, the time and the date

on which the deaths of the deceased have been

caused, would be required to lodge the

complaint in a manner, which would enable the

concerned investigating agency to further

investigate in the matter.

35. The learned Advocate General by relying

upon the decision of the Apex Court in the

case of Jakia Nasim Ahesan & Anr. v. State of

Gujarat & Ors., in Criminal Appeal No.1765 of

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2011 (decided on 12.9.2011) made an attempt

to contend that in the said decision, the

Apex Court did not permit the registration of

another/fresh FIR, but only directed the

submission of the report to the concerned

Court, leaving the concerned Court to take

further action in this regard and, therefore,

it was submitted that when the FIR is already

registered regarding the incident being C.R.

No.8/2004, with the Crime Branch Police

Station, even if it has transpired in the

investigation that the encounter is not

genuine, such report can be filed in the

concerned criminal court and the concerned

Criminal Court may take action in accordance

with law and this Court may not direct the

registration of another/fresh FIR.

36. It appears to us that the contention is

misconceived and the reliance is ill-founded,

inasmuch as in the case before the Apex Court

in the case of Jakia Nasim Ahesan & Anr. v.

State of Gujarat & Ors. (supra), FIR for the

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alleged crime regarding Section 302 of IPC

and other offences was already registered

with Meghaninagar Police Station, Ahmedabad

and after investigation, the charge-sheet was

also filed against certain accused. Not only

that, but the case was already committed to

the Court of Sessions, Ahmedabad.

Thereafter, during the course of the trial,

the appellant before the Apex Court was

desirous of lodging another complaint against

certain persons for the very offences. Such

is not the fact situation in the present

case. Had it been a case where the encounter

was found to be genuine, which may involve

other persons in addition to those, who are

already shown in the complaint, it might

stand on a different footing and different

consideration would have applied. In the

present case, the entire allegations in the

FIR regarding loss of lives of the deceased

in a police encounter are not found to be

genuine. Therefore, once a conclusion is

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drawn that the encounter is not genuine, a

case is made out regarding commission of

other offences under the IPC, which may

involve those police officers, who are stated

to have taken the lives of the deceased in

self-defence, in the police encounter. Under

these circumstances, the reliance placed upon

the decision referred to by the learned

Advocate General is ill-founded. Further, as

already observed by us after having taken

into consideration the case law prevailing

for registration of another/fresh FIR, we

find that since the nature of the incident

and the alleged crime has come out to be

different on account of the encounter having

been found to be non-genuine, registration of

a fresh/another FIR would facilitate the

investigating machinery to locate the crime

and the persons involved therein. Apart from

the aspect that in the event the charge-sheet

is filed, there would be a proper base for

the conduct of the trial. Therefore, the

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contention of the learned Advocate General

does not deserve to be accepted.

INVESTIGATION AGENCY

37. The next aspect is regarding which agency

should conduct the investigation after

registration of another/fresh FIR as observed

herein above.

38. Mr.Sayed and Mr.Sinha, learned Counsel on

behalf of the original petitioners have

prayed that when SIT is already constituted,

this Court may continue the investigation of

another/fresh FIR also with the SIT. They

have contended that though it was earlier

prayed by the petitioners for the

investigation through CBI, now they are not

desirous to see that the investigation of

another FIR be made by CBI. Therefore, they

submit that the same SIT be continued.

39. Whereas, Mr.Yogesh Lakhani, Amicus Curiae

at the first instance submitted that he had

no specific instructions through SIT or its

Chairman on the aspects of investigation by

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it. However, at a later point of time,

Mr.Lakhani made submissions so as to assist

the Court and contended that the same SIT can

be continued with the task of investigation

after the registration of another/fresh FIR.

40. At this stage we may also state that

Mr.R.R. Verma, Chairman of SIT and Mr.Mohan

Jha, another Member of SIT, declared before

the Court during the course of hearing, that

they are desirous of being relieved from the

SIT because of various personal

circumstances. As per the Chairman of SIT,

since his task of finding out the genuineness

of the encounter, or otherwise, is complete

he may be relieved. Whereas, Mr.Satish

Verma, the remaining Member of the SIT is not

desirous to be relieved as a Member of SIT.

It may be recorded that Mr.R.R.Verma has

given in writing vide letter dated 18.11.2011

addressed to the Registrar (Judicial) that he

wants to be relieved. Further he has also

given in writing vide letter dated 21.11.2011

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that this Court may consider the closing of

the Special Cell of SIT, since on the aspects

regarding retraction of statements, custodial

interrogation, etc. may be required to be

carried out.

41. Mr.Lakhani also clarified that he is not

making submissions upon instructions received

from the Members of the SIT to continue with

the investigation by the SIT after

registration of another/fresh FIR, but has

made submissions only with a view to assist

the Court.

42. Whereas the learned Advocate General

appearing for the State submitted that the

first choice on the part of the State is the

investigation of another/fresh FIR through

the State Agency. He has submitted that if

this Court finds it proper to give the

investigation to an agency other than that

of the State, then in his submission, it may

be given to NIA or CIB. However, the State

has various reservations and objections for

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the investigation to be carried out through

the SIT, more particularly when one of the

Members of the SIT namely; Mr.Satish Verma,

is facing other charges in connection with

another incident.

43. Whereas on behalf of the Union of India,

Mr.Champaneri, learned Assistant Solicitor

General submitted that NIA will have

jurisdiction only if the allegations of

conspiracy to commit terrorist acts continue,

and it does not result into only offences

under IPC. It was submitted that the NIA

would be willing to take over the

investigation, but its jurisdiction is

limited to the scheduled offences. He

submitted that CBI is already over-burdened

with many cases and its resources are already

spread too thin. Moreover, a number of posts

are vacant in the organization of CBI. It

was further submitted that in case the

investigation is not entrusted to NIA, an

officer can be spared, who has atleast 4 to 5

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years' remaining period of service and who

may be given powers of an SHO, who can be

free to choose his own team for the

investigation, prosecution and trial, and the

Government of India can identify such an

officer of the rank of a DIG, for this

purpose.

STATE AGENCY

44. As the first choice as per the State is

the State agency, we find that the said

aspect deserves to be considered first.

45. In the judgement of this Court dated

12.8.2010 in Special Criminal Application

No.822 of 2004, vide paragraph 78 of the said

judgement (reproduced at paragraph 5 herein

above) it was observed that the investigation

by the I.O. and the Additional DGP was not

satisfactory and it was also observed that to

instill confidence and provide credibility to

the investigation, is a must. It is true

that at the relevant point of time, there was

no material on record before the Court

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regarding any malice or mala fide on the part

of the officers of the State, therefore, the

Court declined the transfer the investigation

to CBI as was prayed by the petitioner

therein. However, the subsequent

circumstances can better be narrated as

under:-

(1) In spite of the constitution of SIT by

this Court vide above referred judgement

dated 12.8.2010, for the purpose of

investigation, an attempt was made by the

State to assign the investigation to the

Special Task Force and this Court in its

order dated 24.9.2010 (reproduced at

paragraph 6 herein above) had observed that

such decision on the part of the State or

attempt can hardly be considered as a valid

ground to recall the observations made for

constitution of SIT.

(2) In the aforesaid very order when the

reservation was shown by the State against

the inclusion or induction of any officer of

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IPS Rank from outside the State, this Court

had observed that such reservation cannot be

countenanced and thereafter, this Court did

constitute the first SIT headed by Mr.Karnal

Singh as Chairman.

(3) In the report of Mr.Karnal Singh dated

20.4.2011 vide paragraph 58, it was suggested

that judicial inquiry or some other inquiry

be conducted to unearth the forces acting

within the State, who are trying to hamper

the impartial investigation and it was also

stated that he is of the considered view that

an impartial and fair inquiry is not possible

by appointing the officers from the State

Police to investigate the case. It was

proposed that either the three SIT Officers

should be from outside the State or the

investigation may be handed over to an

independent agency. In the very report at

paragraph 63 it was prayed by him that an

inquiry be ordered to unearth the forces

acting within the State, who are trying to

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derail the investigation and are obstructing

the impartial and fair investigation. It had

been stated that he is of the view that a

fair and impartial investigation requires

that either investigation to be conducted by

SIT Members from outside the State or by an

independent agency.

(4) This Court in its order dated 28.01.2011

(reproduced at paragraph 9 herein above) had

to observe that it would be open to the SIT

to intimate the names of the officers or the

witnesses to be interrogated or those who may

be the witnesses to the incident, and such

officials shall be posted in a manner that

they are not required to work under the

higher officers, who are directly or

indirectly involved in the incident and the

State was further directed to act accordingly

upon the information so received from SIT.

(5) This Court, in its order dated 8.4.2011


taken note of the fact that in spite of the

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direction issued earlier and the requisition

made by the SIT for transfer of certain

police officers, namely; Mr.P.P. Pandey,

Mr.G.S. Singhal, and Mr.Tarun Barot, they

were not transferred and, therefore, a

specific time-bound direction was given to

comply with the earlier order with one week.

(6) When certain record of FSL was seized by

Mr. Stish Verma, one of the members of the

SIT, during the course of investigation, a

complaint was filed against him without it

having been brought to the notice of this

Court, and without the permission of this

Court. In the aforesaid very order dated

8.4.2011, this Court had to observe that no

attempt should be made for creating any

hindrance or obstruction in the

investigation.

(7) In spite of the aforesaid direction to

transfer certain police officers within a

particular time limit, the compliance was not

made until the Board of experts visited and

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reconstructed the scene at the site of the

incident and one of the officers Mr.G.S.

Singhal who played major role at that stage

was otherwise supposed to be transferred

prior thereto was not transferred. The

aforesaid aspect of major role played by the

said officer has also transpired in the 8th

report of SIT.

(8) The aforesaid (except the reference in 8th

report of SIT) is taken note in the order

dated 21.4.2011 (reproduced at paragraph 13

herein above). This Court thereafter in the

very order had to call for explanation of the

Secretary of the home Department of the State

Government before concluding on the aspects

whether action be initiated under the

Contempt of Courts Act, or not.

(9) Once again when the matter came to be

considered by this Court on 12.5.2011

(reproduced at 14 hereinabove), an attempt

was made on the part of the State Government

by way of suggestion that the investigation

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may be assigned to the Special Task Force,

which is to work under the monitoring

authority instead of constitution of a new

SIT and this Court had to decline such prayer

in order to instill confidence and

credibility in the investigation by observing

that the approach on the part of the State to

re-agitate such questions deserves to be

deprecated.

(10) Again on 9.9.2011 this Court had to

issue direction to State vide order

(reproduced at paragraph 20 herein above)

that the State shall not transfer the

officers connected with the functioning of

the SIT until the work of the SIT is over and

one Mr.Mistry, who has already been

transferred shall be reposted in Ahmedabad

and shall be continued until the work of SIT

is over.

(11) The investigation report of State

Police Officer namely; Ms.Parixita Gurjar is

found to be not correct as per the

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investigation made by the SIT.

(12) Further, all top, high officials of

the State up to the rank of the then DGP may

fall within the ambit of investigation in

connection with the registration of

another/fresh FIR.

45. The aforesaid facts and circumstances, if

considered, cumulatively, keeping in view the

paramount consideration of instilling

confidence in the investigation and for

maintaining the credibility of investigation

with the aim to book the real offenders, it

appears to us that now it would not be a case

to assign the investigation to the State

agency.

SIT

46. On the aspects of investigation to be

made of another/fresh FIR by SIT, following

aspects have transpired:-

(1) It was already ruled vide judgement dated

12.8.2010 in Special Criminal Application

No.822 of 2010 paragraph 78.10(reproduced at

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paragraph 4 herein above) that the Members of

SIT or the SIT works under the control of

this Court and hence alteration in the

composition or constitution of new SIT,

cannot have demoralizing effect, but can be

termed as a transfer of work or assignment

simplicite.

(2) This Court had taken note of the aspects

in its order dated 24.9.2010 (reproduced at

paragraph 7 herein above) that if the very

SIT for riot cases is unable to take up the

investigation, the consequence may arise that

either no result may come out, for which the

direction has been issued by this Court or in

alternative it would not serve any purpose

whatsoever.

(3) This Court in the order dated 28.1.2011


found that there were differences of opinion

between the Members of SIT and the same was

also reflected in the affidavit of Mr.Satish

Verma and, therefore, this Court had to lay

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down the discipline amongst the Members of

the SIT themselves and Mr.Karnal Singh was

appointed as the Chairman of SIT and the

other two police officers were appointed as

the Members of the SIT.

(4) In order dated 8.4.2011 (reproduced at

paragraph 11 herein above) this Court had

recorded that the investigation of SIT was

not satisfactory on account of the non-

availability of its Chairman Mr.Karnal Singh.

(5) This Court in its order dated 21.4.2011


noted the fact that because of non-

availability of Chairman, Mr.Karnal Singh was

permitted to be relieved, the duties were

required to be demarcated amongst other two

Members of the SIT, since there were various

differences of opinion in the mode and manner

of investigation.

(6) In the report of Mr.Karnal Singh dated

20.4.2011 he also opined and prayed for

investigation by SIT Members from outside the

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State or by an independent agency.

(7) After Dr. Satyapal Singh having been

appointed as Chairman of SIT, this Court in

its order dated 24.6.2011 (reproduced at

paragraph 15 herein above) had recorded that

Dr. Satyapal Singh had expressed difficulties

about the language and interrogation of

Mr.P.P. Pandey, who is his batch mate and had

shown difference of opinion between two SIT

members and, therefore, he had prayed for

relieving him as Chairman of SIT.

(8) Thereafter, this Court vide order

dated 15.7.2011 (reproduced at paragraph 16

herein above) relieved Dr. Satyapal as the

Chairman of SIT and appointed Mr.Ramudu in

his place.

(9) The Union of India thereafter once

again prayed to substitute Mr.Ramudu by

another officer and this Court vide its order

dated 19.7.2011 in Criminal Misc. Application

No.10244 of 2011 (reproduced at paragraph 17

hereinabove) did observe that if the officer

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concerned has no inclination or zeal to work

as Chairman of SIT he will not be able to

bring about the result as expected by the

Court while ordering investigation through

SIT and, therefore, in place of Ramudu,

Mr.R.R. Verma was appointed as the Chairman

of SIT (IO). In the aforesaid very order

this Court had to record the unhappy state of

affairs namely as that the Union Government

was unable to command its officers when a

mandate was given by this Court. The Court

further recorded that such a situation will

never bring about the truth for which the

directions were issued by this Court. This

Court in the aforesaid very order had further

taken serious note of the casual approach on

the part of the Union of India and had issued

directions calling upon the officer concerned

to submit the explanation in this regard,

before taking any further stern action to

maintain the authority of the Court.

(10) This Court in its order dated

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5.8.2011 in Criminal Misc. Application

No.10011 of 2011 had taken note of the serious

aspects of retraction of the statement by the

important witnesses even when the

investigation by SIT was going on and

allegation by one of the members of the SIT

regarding playing of a role in the

retraction, by one of the Members of the SIT

itself and, therefore, this Court had to

direct the Chairman of SIT himself to

investigate the matter regarding retraction

of the statements of the witnesses. Of

course, it was observed that the action, if

any, to be taken against any members of the

SIT could only be taken after permission is

granted by this Court.

(11) The Chairman of SIT has submitted

the report and has found that the first

statement of the main witnesses namely;

Motibhai Desai and Shivsingh were voluntary

and were not given under compulsion or

duress, and for further investigation

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regarding retraction of such statements,

interrogation may be required.

(12) The final (8th) report of the

Chairman, of the SIT has been given

unanimously. However, simultaneously he has

given in writing that he may be relieved as a

Member of SIT and has declared before the

Court that he and Mr.Mohan Jha are desirous

of being relieved from the SIT, whereas

Mr.Satish Verma is desirous to be relieved as

a Member of SIT.

(13) The Chairman of SIT Mr.R. R. Verma

has given in writing that on the aspects of

retraction of statements of the witnesses,

final report is not submitted, but interim

report is submitted and for further

investigation custodial interrogation may be

required. He has requested that such work

may be assigned to another person or agency

by closure of the said Special Cell of SIT.

(14) The Chairman of SIT during the

course of hearing has also declared that if

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investigation of another FIR is given to SIT,

there is no facility of getting the person

arrested, nor is there any place available

for custodial interrogation. He submitted

that if the remand is given there is no

facility available. He also stated before

this Court that at one point of time when SIT

wanted to interrogate some persons, an oral

request was made to CBI but the same was

declined.

47. The aforesaid facts and circumstances as

have transpired after assignment of the work

to SIT show that the conduct of investigation

by SIT, in spite of the directions issued by

this Court, has remained very slow at the

initial stage. As per the report of Dr.

Karnal Singh dated 20.4.2011 a few

substantial details had come out. It is

significant to note he had stated at

paragraph 58 that there were forces at

various levels of the State, which perhaps

are causing impediment in the impartial and

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fair investigation and he had also prayed for

investigation to be conducted by SIT members

from outside the State or by an independent

agency. After Mr.Karnal Singh was relieved

as Chairman, the progress of investigation by

the SIT was slow and in the meantime, the

second Chairman, Dr.Satyapal Singh, also

prayed to be relieved. It is true that

substantial progress came about after Mr.R.R.

Verma took over as the Chairman of SIT, at

least to the extent of finding out as to

whether the encounter was genuine, or not.

But he has also not been able to give a final

report on the aspects of the persons, who

played a role in retraction of the statements

of the witnesses. In any case, Mr.R.R. Verma

has also prayed for being relieved as the

Chairman of SIT. There are serious

differences of opinion between the other two

Members of SIT namely; Mr.Mohan Jha and

Mr.Satish Verma. In any case, Mr.Mohan Jha

has shown his desire to be relieved as a

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Member of the SIT. Consequently, only one

Member remains i.e. Mr.Satish Verma who has

not shown willingness to be relieved as a

Member of SIT. This brings about a situation

that the majority of members of the SIT,

including the Chairman, are not desirous of

continuing with the SIT.

48.It is hardly required to be stated that

officers, who are not desirous of take up the

assignment, would have no zeal or sincerity

to conduct and complete the investigation in

the right spirit. The willingness shown by

the Union of India to spare another officer,

in view of the aforesaid facts and

circumstances, shows that it has not seen the

reality in the manner as it was expected to

command its officers to comply with the

mandate and directions of this Court in its

true spirit. Further, as stated by the

Chairman of SIT, there is no facility of

custodial interrogation, or any basic

infrastructure in a full-fledged manner

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available with the SIT for conducting the

investigation, such as public prosecutor,

etc. At every level SIT will be required to

be dependent upon the State Agency and in

view of the reasons mentioned herein above

the assignment of such work or getting the

work done through the State Government may

derail the investigation and allow certain

forces to enter at various levels that may be

uncontrollable by SIT. In any case, when the

matter is to be considered from the stage of

filing of FIR until the investigation and

conclusion of trial, all the aforesaid

aspects may assume much importance.

Therefore, we find that after registration of

another/fresh FIR based on the final (8th)

report of SIT, the investigation be assigned

to the agency other than that of SIT. But

since one of the Members of SIT, Mr.Satish

Verma has not shown willingness to be

relieved, his assistance can be taken by the

agency, to which the work is assigned for

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investigation of the aforesaid another-fresh

FIR. Such assistance of one of the Members

of SIT, Mr.Satish Verma would enable the

investigating team of another agency to get

clues and may also prove to be very helpful,

though ultimately the opinion of such

investigating agency is to prevail, subject

to the orders of the Court.

NIA

49. The next aspect is whether the National

Investigating Agency (NIA) can be assigned

the investigation. In our view, for the

purpose of terrorist acts, complaint is

already registered against the deceased vide

C.R. No.8 of 2004 and the same is pending

before the POTA Court. If the deceased had

entered the territory of the State for

committing terrorist acts, it would be the

subject matter of the said case. However, if

such persons (deceased) are liquidated or

caused to death by other than that of

encounter or in self-defence, may be by the

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concerned police officials or otherwise, the

same would constitute a separate offence

under IPC. As per National Investigating

Agency Act 2002 (hereinafter referred to as

'NIA Act' for short) the agency has the

competence to investigate scheduled offence,

which includes vide Item No.5 but the same is

limited to Terrorist Act. The offence as

mentioned under IPC vide Clause 8 of the

Schedule may not be attracted in the facts of

the present case as per the fresh/another

FIR. If the investigation is assigned to NIA

and the charge is only of offence under IPC,

more particularly other than those covered by

Clause 8 of Schedule, the question of

competence and jurisdiction of NIA may arise.

Similarly such questions may also arise at

the time of taking cognizance and for

conducting trial by the concerned Special

Court. If the Parliament has not conferred

the jurisdiction upon the investigating

agency or upon the Court for trial of the

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offence, such jurisdiction cannot be

conferred, even by this Court while

exercising power under Article 226 of the

Constitution of India upon a Court which has

no jurisdiction. The reference may be made

to the decision of the Apex Court in the case

of A.R. Antulay v. R.S. Nayak and Anr.,

reported in (1998) 2 SCC, 602. It is in view

of such facts and circumstances of the

present case that we find in order to ensure

a smooth course of investigation and if

required, ultimately to see that the

offenders are booked as per law and further

the offences are taken to the logical end, it

would be just and proper not to assign the

investigation to NIA.

CBI

50. The aforesaid would take us to the

remaining course available for assignment of

the investigation to CBI.

51. It is an undisputed position that both

the petitioners had made a prayer in the

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petition for investigation to be assigned to

CBI, which was vehemently opposed by the

State Government at the relevant point of

time. It is true that now the petitioners,

as well as the State Government have both

changed their stands, inasmuch as the

petitioners now pray that the investigation

of the another/fresh FIR be conducted through

the same SIT, whereas the learned Advocate

General for the State declared before the

Court that the State has no objection if this

Court is inclined to assign the investigation

to either NIA or CBI, in the event that it is

not inclined to give the investigation to the

State Agency which is the first choice. He

had further stated that the State Government

has no objection even if the investigation

with CBI is monitored by this Court by way of

submission of progress reports, or otherwise.

52. The learned Counsel for the original

petitioners did submit that the CBI is given

assignment of the investigation, as per their

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experience, it would land into a large number

of political allegations and counter

allegations and will not bring about the real

offenders to book. It was also submitted

that the CBI is busy with many other scams

and they have only residual officers, who

would not seriously take up the

investigation.

53. Whereas on behalf of the Union of India,

it was submitted that the CBI is already

over-burdened and it has limited resources as

a number of posts are vacant. Therefore, it

can be termed that the Union of India has

shown indirect reservations for assignment of

the work to CBI. At this stage, we may

mention that in the main petition, an

affidavit was filed on behalf of Union of

India that the CBI is ready to take up the

investigation. The said aspect is clear from

the further affidavit dated 29th September,

2009 filed on behalf of the Union of India

(in Special Criminal Application No.822 of

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2004) by Mr.Mani, Under-Secretary, Internal

Security – Class-VI of the Ministry of Home

Affairs, stating that Union of India would

have no objection if the independent inquiry

and the investigation is to be carried out by

CBI or otherwise and it was so declared that

the Union of India would abide by the

decision of this Court.

54. We may state that in the judgement of

this Court dated 12.8.2010 in the main

petition, when this Court had to consider the

aspect of assigning the investigation to the

CBI it was observed at paragraph 66, and 67

and thereafter at paragraph 69, thus:-

“66. We cannot countenance the

submission made by the learned Counsel

for the petitioners that the present

case of encounter falls at par with the

case of encounter of Sohrabuddin. The

fact situation of the case in the

decision of the Apex Court in the case

of Rubabuddin Sheikh v. State of

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Gujarat, reported in 2010(2) SCC, 200,

was that the investigation at the

initial stage was allowed to be

continued by the Apex Court with the

State Police. Not only that, but even

as per the investigation made prior to

the above referred decision of the Apex

Court, the encounter was found to be

fake and the charge-sheet was also

submitted upon with the action taken

report submitted before the Apex Court

from time to time, but thereafter the

Apex Court found that proper

investigation was not being made by the

State Police, therefore, it was

assigned to CBI. No such fact

situation exists in the present case

inasmuch as there is no finding

recorded, nor any material at par with

the case for encounter of Sohrabuddin

Sheikh. Merely because some

observations are made in respect of

functioning of State Police in the case

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of a particular investigation of a

particular incident, we cannot

countenance the submission of the

learned Counsel for the petitioners

that for all investigations, in which

police officers are involved, the same

cannot be undertaken by the State

Police and the case would call for

transfer of investigation to CBI.

67.If the matter is considered in light

of the earlier decision of this Court

in the case of Bharatbhai Umedsang &

Anr. v. State of Gujarat (supra), for

the transfer of investigation to CBI,

as observed by this Court in the above

referred case, power can be exercised

by this Court in a very extraordinary

case, where there is sufficient

material before the Court to record the

substance in the apprehension of the

complainant or the victim that even the

higher officer of the State, if

assigned with the investigation, has

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failed in duty or would be failing in

duty cast upon the statute in the

matter of investigation. Further, the

satisfaction, either by stepping into

the investigation or by transferring

the investigation to other

investigating agency like CBI cannot be

recorded on a mere ipsi dixit of a

complainant or a victim, nor can it be

recorded only because the concerned

investigating officer has not acted as

per the desire of the victim nor such

investigation can be transferred only

because the accused apprehends that

there will be any further strict action

by the investigating officer. The

degree of malafide or malice on the

part of the investigating officer to

carve out a case in exceptional

category, may be for transferring the

investigation to some other officer or

otherwise, would require a cogent

material on the face of it, which would

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leave the Court to satisfactory

material substance in the apprehension

voiced by either side, may be the

complainant or the victim or the

accused. The examination of the facts

of the present case, if considered,

there is no material whatsoever on

record to show any malice or malafide

on the part of the investigating

officer for intentionally not properly

conducting the investigation, may be

either Ms.Parixita Gurjar as the

Investigating Officer or Mr.Mahapatra as

further making inquiry in the said

incident. In absence of any material

on record for any malafide or malice on

the part of the aforesaid officers, who

have so far conducted the

investigation, it cannot be said that

there is any satisfactory material with

the Court to accept the contention of

the learned Counsel for the petitioner

representing the relatives of the

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deceased that the officer acted with

any malafide or malice. Therefore, if

the case is to be tested on the

allegation of malafide or malice on the

part of Investigating Officers or any

State police officer, no case can be

said to have been made out for

transferring the investigation to CBI.

The learned Counsel appearing for the

petitioners did rely upon certain cases

where this Court or the other High

Courts had found it proper to entrust

the investigation to CBI, since certain

police officers were involved or high

police officers were involved. Such

decision can hardly be read as laying

down the principle that in a case where

the offences alleged to have been

committed by the police officers, the

other police officer, higher police

officer shall not discharge the duty

for investigation in an impartial

manner. At the most it can be said

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that in the facts and circumstances of

those cases, this Court or the other

High Courts found it proper to transfer

the investigation to CBI. No parity

can be drawn on the ground as sought to

be canvassed by the learned Counsel

appearing for the petitioners.

68. xxx

69.The aforesaid leads us to further

find out as to how the investigation

can be carried out in a manner, which

instills the confidence and credibility

to such investigation to do complete

justice in order to protect the

fundamental rights of the citizens of

the country.”

55. The aforesaid shows that the

investigation is to be carried out in a

manner which instills confidence and

credibility to such investigation, to do

complete justice in order to protect the

fundamental rights of the citizens of the

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country. It is true that at that stage,

thereafter this Court had found it proper to

constitute a broad-based SIT and the prayer

for assignment of the investigation to CBI

was not granted at that stage. However, in

view of the facts and circumstances mentioned

herein above and the conclusion not to assign

the investigation to the State Agency, the

matter is now required to be considered

accordingly. Further, various factors

recorded and considered herein above show

that the SIT so constituted had to be geared

up with various efforts and various

directions and the zeal of the officers in

functioning as Members of SIT and more

particularly that of the Central Cadre was

not so satisfactory to continue with the

assignment. As observed earlier, the first

Chairman, Mr.Karnal Singh after some time,

expressed his inability to continue and

desired to be relieved. However, he did

opine for assignment of the work to an

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independent agency or a SIT whose Members

were from an agency other than the State

Agency. The second Chairman Dr. Satyapal

Singh, had a very limited role and he also

expressed willingness to be relieved. The

third Chairman, Dr Ramudu, had practically

never took over because of his physical

ailment, or otherwise. Substantial progress ,

if any, could come out only during the tenure

of the last and the fourth Chairman Mr.R.R.

Verma, but after the 8th – Final report he has

also shown a desire to be relieved and

expressed a view for assignment of the

investigation to some other independent

agency.

56.As observed earlier, now the material has

come out showing the situation that the

investigation cannot be assigned to the State

Agency. Further, in view of the peculiar

circumstances narrated herein above, majority

of the Members of the SIT after completing

the work, and expressing the unanimous view

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on the aspect of genuineness of the

encounter, have shown a desire to be

relieved. Further in view of the reasons

recorded herein above we have also found it

proper not to assign the investigation to the

present SIT, save and except making use of

the services of Mr.Satish Verma in future for

investigation by any other agency. If the

aforesaid are ruled out, the third option was

NIA, which for the reasons recorded herein

above may not be proper in order to ensure

the smooth course of investigation and the

conduct of the trial, if any, in future.

Hence, the only agency now left is CBI, which

is a Central Agency. At this stage we may

once again refer to the decision of the Apex

Court in the case of State of West Bengal and

Ors Vs. Committee for Protection of

Democratic Rights, West Bengal & Ors reported

in (2010) 3 SCC, 571 (2010 STPL (Web) 129 SC),

wherein the Apex Court, while considering the

question about the power of the constitutional

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Court under Article 32 or 226 for entrustment of

the investigation to CBI, recorded conclusions,

the relevant of which for the present group of

matter is at para 45(ii) as under:

“(ii) Article 21 of the Constitution in its

broad perspective seeks to protect the

persons of their lives and

personal liberties except according

to the procedure established by law.

The said Article in its broad

application not only takes within its

fold enforcement of the rights of an accused

but also the rights of the victim. The State

has a duty to enforce the human rights of a

citizen providing for fair and impartial

investigation against any person accused of

commission of a cognizable offence,which may

include its own officers. In certain

situations even a witness to the crime may

seek for and shall be granted protection by

the State.”

While recording the final analysis at para 46,

the Apex Court did observe that the Apex Court

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and the High Court have not only the power and

jurisdiction, but also an obligation to

protect the fundamental rights,

guaranteed by Part III in general and under

Article 21 of the Constitution in particular,

zealously and vigilantly. But at the same time,

the further observations by way of caution, have

been made at para 47, relevant of which reads as

under:

“Before parting with the case, we deem it

necessary to emphasize that despite wide

powers conferred by Articles 32 and 226 of

the Constitution, while passing any order,

the Courts must bear in mind

certain self-imposed limitations on

the exercise of these

Constitutional powers. The very plenitude

of the power under the said Articles

requires great caution in its exercise. In

so far as the question of issuing a

direction to the CBI to conduct

investigation in a case is concerned,

although no inflexible guidelines can be

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laid down to decide whether or not such

power should be exercised but time and

again it has been reiterated that such an

order is not to be passed as a matter of

routine or merely because a party has

levelled some allegations against the local

police. This extra-ordinary power must be

exercised sparingly, cautiously and in

exceptional situations where it becomes

necessary to provide credibility and

instill confidence in investigations or

where the incident may have national and

international ramifications or where such

an order may be necessary for doing

complete justice and enforcing the

fundamental rights. Otherwise

the CBI would be flooded with a

large number of cases and with limited

resources, may find it difficult to

properly investigate even serious

cases and in the process

lose its credibility and purpose

with unsatisfactory

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investigations.” (Emphasis supplied)

57. In our view, the facts and circumstances of

the present case as have now emerged, call for

exercise of power treating the case in the

exceptional category, for assignment of the

investigation to CBI in order to provide

credibility and instill confidence in the

investigation, since the incident has by now

acquired national, if not international

ramifications. This would also be required to

do complete justice to the parties and for

enforcement of the fundamental rights.

58.We cannot countenanced the reservations shown

by the Union of India that CBI is already over-

burdened or that the posts are vacant. If the

Union of India is unable to man the central

agency, it should take effective steps in

this regard. When the investigation is

assigned by the Court while exercising power

under Article 226 of the Constitution of

India, it would be the bounden duty of the

Union of India to man CBI, if required, by

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requisitioning officers from other forces and

by deputation for satisfactory completion of

the work of investigation of a crime

registered with it in general, and for

completing the work of investigation

specifically assigned by the High Court under

Article 226 of the Constitution of India, in

particular.

59. We find it proper to record that the

investigation though now completed on the

aspects of genuineness of the encounter other

aspects are yet to be investigated regarding

causing death of the persons concerned

(deceased) and aspects related thereto.

Further, it may also be required on the

aspect of allegation of Terrorist Act as per

complaint vide C.R. No.8/2004 of Crime Branch

Police Station. Therefore, the investigation

is required to be taken up and handled in a

manner with all sincerity for enforcing the

law to its logical end. Only if the

investigation is taken up in such a manner,

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would it bring about the result as expected

from any independent and impartial agency.

60.The ground contended on behalf of

petitioner of chances of political

allegations if the investigation is assigned

to CBI will not be relevant or have any role

to play to slow down or derail the

investigation. Further, if at any point of

time the petitioners find that such

considerations have prevailed, nothing prevents

them from approaching the Court concerned or the

constitutional Court, for appropriate

directions. We leave the said aspect open, to be

considered in future if at all required.

However, we do find it proper to observe that the

paramount consideration of any investigating

agency would be to book the real offenders while

taking care that innocent persons should not be

harassed. Further as another/fresh FIR is yet

to be filed and registered and the investigation

is yet to be taken up, in absence of any material

for slow progress or derailing of the

investigation by CBI, the monitoring of such

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investigation, at this stage, can be said to be

premature.

61. Therefore, we find that it would be just

and proper to assign the entire investigation

to CBI after registration of a fresh/another

FIR by the Chairman of the present SIT. It

would also be required for the CBI to

constitute a team of investigation headed by

an Officer not below the rank of DIG. The

matter is already delayed long enough and,

therefore, such investigation also should be

completed within a reasonable time.

62. In view of the aforesaid observations and

discussion, the following directions:-

(a) Mr.R.R. Verma, Chairman of SIT (present)

shall register another/fresh FIR on the basis

of his final (8th) report to the effect that

the alleged encounter is not found to be

genuine and for causing death of the deceased

and consequently for the alleged offences

under IPC and other provisions of the

relevant laws.

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(b) The aforesaid FIR shall be filed by

Mr.R.R. Verma, Chairman, SIT with the CBI,

having jurisdiction for the crimes committed

in Gujarat State, within a period of two

weeks from the date of pronouncement of the

order and the same shall be registered by the

concerned officer of CBI.

(c) CBI shall thereafter take up the

investigation at the earliest and shall make

an attempt to complete the same at the

earliest.

(d) CBI shall entrust the investigation to

the team of its officers headed by an officer

not below the rank of DIG. During the course

of investigation, the said team of

investigation shall be at liberty to take

help/assistance of Mr.Satish Verma, IPS (1986

Batch, Gujarat Cadre), Member of the present

SIT in order to get clues for investigation

and further incidental aspects of the

investigation. However, it is clarified that

the final decision shall be of the CBI as

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referred to herein above.

(e) After the registration of FIR by the

Chairman of SIT, the record of the

investigation made by the SIT shall be handed

over to CBI by the Chairman of SIT.

(f) After the registration of FIR and after

handing over the entire record of SIT to CBI,

appropriate report shall be submitted to this

Court by the Chairman of SIT. It is only

thereafter that the SIT shall stand

dissolved.

(g) The State Government shall spare the

service of Mr.Satish Verma as and when so

desired or required by the CBI for helping

the CBI to provide clues for further

investigation or any other matter related

thereto.

(h) Further investigation of C. R. No.8/2004

of Crime Branch Police Station shall be

transferred to CBI, within one month after

the registration of the FIR by CBI as

directed herein above. The State Government

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shall issue appropriate orders/notification

for such purpose. CBI thereafter shall file

appropriate report based on conclusion of SIT

as per its 8th Report in the concerned Court,

but the full details and the relevant

documents shall be produced only after

investigation of the aforesaid another/fresh

FIR is completed and appropriate Report is

filed in the concerned Court for

another/fresh FIR.

(i) It is also observed and directed that in

the event during the course of investigation

of the aforesaid another/fresh FIR or

complaint vide C.R. No.8/2004 of Crime Branch

Police Station, the CBI is required to take

any action against any Member of SIT, the

same shall not be taken without prior

permission of this Court.

(j) All the record, reports and other

material supplied by the SIT be sealed

properly and be kept in safe custody of the

Registrar General of this Court.

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63. All the aspects of present application

shall get concluded as per the aforesaid

directions ordered herein above save and

except that on the aspect of consideration of

the matter for initiation of action under the

Contempt of Courts Act separate orders shall

be passed by this Court.

(Jayant Patel, J.)

(Smt. Abhilasha Kumari, J.)

vinod

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R_CR.MA_15981_2010_j_13

Documents

honourable mr

special criminal application

justice jayant patelandhonble

justice jayant patel1

mr ih sayed

mr ps champaneri

mr kamal trivedi

justice abhilasha kumaridate