TMI Blog2011 (4) TMI 1477X X X X Extracts X X X X X X X X Extracts X X X X ..... I 1156 - SUPREME COURT] and considering the nature of crime that has been allegedly committed not by any third party but by the police personnel of the State of Gujarat, we are satisfied that the investigation conducted and concluded in the present case by the State police cannot be accepted. In view of various circumstances highlighted and in the light of the involvement of police officials of the State of Gujarat and police officers of two other States. it would not be desirable to allow the Gujarat State Police to continue with the investigation, accordingly, to meet the ends of justice and in the public interest, we feel that the CBI should be directed to take the investigation. - P. Sathasivam and B.S. Chauhan For the Appearing Parties: H.P. Rawal, ASG, Ranjeet Kumar, Ram Jethmalani, KTS Tulsi, Jaideep Gupta, Sr. Advs., Tushar Mehta, AAG, Huzefa A. Ahmadi, Meenakshi Arora, Hemantika Wahi, Pranav Diesh, Karan Kalia, Anish K. Gupta, Subramonium Prasad, Rajat Khattry, Maheen Pradhan, A.K. Sharma, Deepak Prakash, Biju P. Raman, Rajesh B., Malini Poduval, Bhupender Yadav, S.S. Shamshery, Debaleena Kilikdar, B.R. Barik, R.C. Kohil, Karan Singh Bhati, Jyoti Upadhyay, Rashid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that there was conspiracy to kill him along with two others and also named the persons who were behind the conspiracy and requested that incident be investigated and his life be protected. Thereafter, on 18.05.2006, the deceased also addressed a letter to the Chairman, National Human Rights Commission (in short 'NHRC') alleging that there was conspiracy among the police officials of Gujarat, Rajasthan, Maharashtra, etc. to do away with him in a fake encounter by cooking up a false story of running away from custody. In the said letter, the deceased specifically requested that his security be ensured whenever he is taken on remand. In the same letter, he also mentioned that the Gujarat Crime Branch and Anti Terrorist Squad (in short 'ATS') were very notorious for staging fake encounters. The NHRC acknowledged the receipt of the said letter and forwarded a copy to the Superintendent of Police, Udaipur, Rajasthan vide letter dated 22.06.2006. (c) Thus from March 2006, the deceased had been expressing serious apprehensions and threat to his life at the hands of the police. The deceased had reasons to believe that Mr. Dinesh Kumar, Superintendent of Police, Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it at the left shoulder of Shri A.A. Pandya, SI. It is alleged that in self-defense Shri A.A. Pandya fired two rounds from his service revolver and Mr. Narayansinh Fatehsinh Chauhan and Mr. Yuddharamsinh Nathusinh Rajput, Rajasthan police constables also fired from their weapons. On account of the firing by the police party, bullets hit Tulsiram Prajapati and he fell down on road side and the other two persons ran away and could not be traced. Thereafter, he was taken to Ambaji Cottage Hospital where he was declared dead by the doctor on duty. (g) It is the further case of the Petitioner that the deceased being a key eye witness to the murder of Sohrabuddin and his wife Kausarbi, the team of Mr. D.G. Vanzara and others planned to do away with him to avoid his interrogation by Ms. Geeta Johri, Inspector General of Police. The aforesaid facts create a strong suspicion on the conduct of Respondent Nos. 6 to 19 and the Petitioner has every reason to believe that her son- Tulsiram Prajapati has been killed by them in a fake encounter. She also alleged that the Respondents/accused officers enjoy powerful position in their respective State Police and are trying to obstruct further inqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in C.R. No. 131 of 2006 under Sections 341, 323, 506 and 34 IPC. (c) As regards the complaint made to the NHRC, investigation carried out so far revealed that no such conspiracy amongst the police officers of Maharashtra, Gujarat, Madhya Pradesh and Rajasthan has come on record. The deceased also never showed any apprehension to the Petitioner about danger to his life from marble dealers or police officers of Udaipur. The Petitioner's claim about Tulsiram Prajapati's apprehension to his life is at the most hearsay and based on extraneous considerations. (d) The claim that the deceased-Tulsiram Prajapati was highly inconvenient witness for Respondent Nos. 6-19 is without substance as Respondent No. 10 - Mr. V.L. Solanki, an inquiry officer, has stated in respect of alleged killing of Sohrabuddin that during preliminary enquiry there was no link between Tulsiram Prajapati and the death of Sohrabuddin and his wife Kausarbi in an encounter. The same view has been expressed by Ms. Geeta Johri, IGP under whose direct supervision the case relating to Sohrabuddin was investigated. The 'third person' allegedly present at the time of abduction of Sohrabuddin and Kausarb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... link that does not exist. Inasmuch as the CBI which has lost all its credibility as an independent agency and is being used by political party in power in the Central Government, in the absence of any extraordinary circumstances having been shown by the Petitioner in the petition no direction need be issued for handing over the investigation to the CBI and prayed for dismissal of the writ petition. 5. Stand of the CBI - Respondent No. 21: (a) The investigation conducted in R.C. No. 4(S)/2010, Special Crime Branch, Mumbai, as per the directions of this Court in its order dated 12.01.2010, vide Writ Petition (Crl.) No. 6 of 2007 revealed that the alleged fake encounter of Tulsiram Prajapati on 28.12.2006 was done in order to eliminate him as he was the key witness in the criminal conspiracy of the abduction and killing of Sohrabuddin and Kausarbi by the powerful and the influential accused persons. The investigation further revealed that the deceased knew that his death was imminent at the hands of Gujarat Police in connivance with the Rajasthan Police as he was the prime witness to the said case. (b) The investigation also revealed that Tulsiram Prajapati was brought to A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness to the murder of Sohrabuddin and his wife Kausarbi, the team of Mr. D.G. Vanzara, DIG and other officers of the State Police planned to do away him to avoid the interrogation by Ms. Geeta Johri, IGP. The Petitioner had also strong suspicion on the conduct of Respondent Nos. 6-19 and has every reason to believe that her son had been killed by them in a fake encounter. It is also the apprehension of the Petitioner that since the Respondents/accused police officers enjoy powerful position in their respective States and they are trying to obstruct further inquiry in the matter, prayed for entrusting the investigation to a specialized independent agency like the CBI. 9. Mr. Ranjit Kumar, learned senior counsel for the State of Gujarat and Mr. Ram Jethmalani, learned senior counsel for Mr. Amit Shah, Respondent No. 2, who, at the relevant time was the Home Minister of the State, vehemently objected the claim of the Petitioner and by placing several materials submitted that inasmuch as after proper investigation the State Police has filed the charge-sheet, there is no need for further investigation by the CBI at this stage. They further submitted that any such direction at this st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigation to the independent agency like CBI. It cannot be said that after the charge-sheet is submitted, the court is not empowered, in an appropriate case, to hand over the investigation to an independent agency like CBI. 61. Keeping this discussion in mind, that is to say, in an appropriate case, the court is empowered to hand over the investigation to an independent agency like CBI even when the charge-sheet has been submitted , we now deal with the facts of this case whether such investigation should be transferred to the CBI Authorities or any other independent agency in spite of the fact that the charge-sheet has been submitted in court. On this ground, we have carefully examined the eight action taken reports submitted by the State police authorities before us and also the various materials produced and the submissions of the learned Counsel for both the parties. (Emphasis supplied) It is clear that in an appropriate case, particularly, when the Court feels that the investigation by the State police authorities is not in the proper direction as the high police officials are involved, in order to do complete justice, it is always open to the Court to hand over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime therein, this Court directed the CBI to investigate all the aspects of the case relating to the killing of Sohrabuddin and his wife Kausarbi including the possibility of a larger conspiracy' 14. Pursuant to the said direction, the CBI investigated the cause of death of Sohrabuddin and his wife Kausarbi. The CBI, in their counter affidavit, has specifically stated that as per their investigation Tulsiram Prajapati was a key witness in the murder of Sohrabuddin and he was the 'third person' who accompanied Sohrabuddin from Hyderabad and killing of Tulsiram Prajapati was a part of the same conspiracy. It was further stated that all the records qua Tulsiram Prajapati's case were crucial to unearth the larger conspiracy regarding the Sohrabuddin's case which despite being sought were not given by the State of Gujarat. 15. As against the assertion of the writ Petitioner and the stand of the CBI, Mr. Ranjit Kumar and Mr. Ram Jethmalani, learned senior counsel appearing for Respondent Nos. 1 and 2 respectively cited several instances and relied on certain materials to show that inquiry by the CBI is not warranted. They are: i) Tulsiram Prajapati, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in ground on which faults were found was that the investigation was the alleged failure to identify the Andhra Pradesh Police officers and others who participated in the abduction of the couple from Hyderabad to Gujarat leading eventually to their being killed. v) Apart from the 13 accused who had originally been charge-sheeted by the Gujarat Police as a result of their investigation, the CBI, on 23.07.2010, added the then Home Minister of Gujarat as accused No. 16 and involved him in the Sohrabuddin's murder case. vi) The CBI submitted two reports- Status Report No. 1 on 30.07.2010 and a week thereafter, they filed the charge-sheet. In pursuance of the charge-sheet, accused No. 16-Amit Shah was arrested on 25.07.2010 and released on bail by the High Court of Gujarat on 29.10.2010. The order releasing him on bail is subject matter of challenge in SLP (Crl.) No. 9003 of 2010. The Status Report No. 1, filed by the CBI before the Bench on 30.07.2010 informed the Court that Tulsiram Prajapati was abducted along with Sohrabuddin and Kausarbi and he was handed over to the Rajasthan Police. There is no explanation as to why he was not killed along with Kausarbi or Sohrabuddin. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that after six months, the Director General of Police, Gujarat directed Ms. Geeta Johri, Inspector General of Police (Crime), to inquire about the facts stated in the letter. A case was registered as Enquiry No. 66 of 2006 and from 11.09.2006 to 22.01.2007, four interim reports were submitted by Mr. V.L. Solanki, Police Inspector, working under Ms. Geeta Johri. In Writ Petition No. 6 of 2007, Rubabbuddin Sheikh prayed for direction for investigation by the CBI into the alleged abduction and fake encounter of his brother Sohrabuddin by the Gujarat Police Authorities and also prayed for registration of an offence and investigation by the CBI into the alleged encounter of one Tulsiram Prajapati, a close associate of Sohrabuddin, who was allegedly used to locate and abduct Sohrabuddin and his wife Kasurbi, and was thus a material witness against the police personnel. He also prayed for production of Kausarbi, his sister-in-law. After going through various reports, arguments of the counsel for the writ Petitioner and the State of Gujarat as well as Solicitor General for India, who appeared as Amicus Curiae, this Court disposed of the writ petition by entrusting the investigation to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the gross allegations have been made against the high police officials of the State of Gujarat and for which some high police officials have already been taken into custody. 54. It is also well known that when police officials of the State were involved in the crime and in fact they are investigating the case, it would be proper and interest of justice would be better served if the investigation is directed to be carried out by the CBI Authorities, in that case CBI Authorities would be an appropriate authority to investigate the case. 60. Therefore, in view of our discussions made hereinabove, it is difficult to accept the contentions of Mr Rohatgi, learned Senior Counsel appearing for the State of Gujarat that after the charge-sheet is submitted in the court in the criminal proceeding it was not open for this Court or even for the High Court to direct investigation of the case to be handed over to CBI or to any independent agency. Therefore, it can safely be concluded that in an appropriate case when the court feels that the investigation by the police authorities is not in the proper direction and in order to do complete justice in the case and as the high police offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts surrounding his death evokes strong suspicion that a deliberate attempt was made to destroy a human witness. 68. From the above factual discrepancies appearing in the 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 were of grave nature which needs to be strictly dealt with. After arriving at such conclusion, the Bench directed the CBI to investigate all aspects of the case relating to the killing of Sohrabuddin and his wife Kausarbi including the alleged possibility of a larger conspiracy . 19. It is clear that the above judgment records that there was a strong suspicion that the 'third person' picked up with Sohrabuddin was Tulsiram Prajapati. It was also observed that the call records of Tulsiram were not properly analyzed and there was no justification for the then Investigation Officer - Ms. Geeta Johri to have walked out of the investigation pertaining to Tulsiram Prajapati. The Court had also di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir hide out in Madhya Pradesh to Hyderabad. This happened in the middle of November, 2005. It was further highlighted that on or about 22.11.2005, Sohrabuddin and his wife Kausarbi left by a luxury bus for Sangli in Maharashtra. Two tickets for the bus journey were purchased by one Sri Hari. The bus was pursued by police vehicle, two of them were in Tata Sumo vehicles belonging to the Andhra Pradesh Police. They were driven by two drivers in the employment of police being ordinary policemen. The Andhra Pradesh police officers who sat in these two vehicles have not been identified despite investigation both by the Gujarat Police as well as later by the CBI. Sohrabuddin was done to death in an encounter with the police in the early morning of 26.11.2005. In the eventual charge-sheet filed by the Gujarat Police on 16.07.2007 against 13 persons it was reported that the encounter was a fake one. It is the definite case of the Respondent No. 2 that the preliminary enquiry was first registered on 27.06.2006. In the charge-sheet filed on 16.07.2007, the Gujarat Police found no evidence of any kind to implicate the Respondent No. 2- Amit Shah. 21. Mr. Ranjit Kumar and Mr. Ram Jethmalani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounter was fake and stage managed as predicted by Tulsiram Prajapati prior to his death in a number of communications. We have already adverted to his complaint to the District Collector, Udaipur, Rajasthan and representation to the NHRC, New Delhi. In both the representations Tulsiram Prajapati highlighted about the danger to his life. In fact, the NHRC forwarded his representation to the Director General of Police, Gujarat for necessary action. 24. It is relevant to point out the letter of Shri V.L. Solanki dated 18.12.2006 seeking permission to interrogate Tulsiram Prajapati and Sylvester lodged in Udaipur Jail. With regard to the letter, Ms. Geeta Johri, Head of SIT, is alleged to have recorded that even she may be given permission to accompany the I.O. for interrogation. It was pointed out by the CBI that the letter of Shri V.L. Solanki containing the signature of Ms. Geeta Johri was not found in the official file. In its place, it was pointed out that a fabricated note dated 05.01.2007 along with a noting of Shri G.C. Raigar dated 06.01/08.01.2007 was found in the file in which it was recorded as under: To go to Udaipur to interrogate accused Sylvester and Tulsiram Praj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CBI in the month of May, 2010. 26. Another important aspect is that on earlier occasions, Tulsiram Prajapti was produced before the Court in Ahmadabad through video conferencing and he was removed from jail on 27.12.2006 and produced before a Court, when ultimately, on 28.12.2006 i.e. the next day, he was killed. 27. According to the CBI, the investigation has revealed that Tulsiram Prajapati was the 'third person' accompanying Sohrabuddin and Kausarbi on the fateful night of their abduction and subsequent murders in the year 2005. The investigation further revealed that after the abduction of Sohrabuddin and Kausarbi, police personnel of Rajasthan had taken away Tulsiram Prajapati from Valsad on 23.11.2005. However, it was pointed out by the CBI that he was shown to have been arrested on 29.11.2005 at Bhilwara by the Rajasthan Police. 28. Nayamuddin Shaikh, in his statement dated 19.02.2010, before the CBI has mentioned that they had gone to see off his brother Sohrabuddin, Kausarbi and Tulsiram Prajapati from Indore bus stand for Hyderabad and that Sohrabuddin had told him that they would be staying with Kalimuddin in Hyderabad. The above statement of Nayamud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority which they might have enjoyed, it is desirable to entrust the investigation to the CBI. 32. As stated earlier, it is the specific claim of the State of Gujarat that they have conducted a fair and impartial investigation into the killing of Tulsiram Prajapati, however, analysis of the materials which we have already discussed show several lacuna on the part of the investigation by the State Government. It is relevant to point out that much before the incident dated 28.12.2006 which happened in village Chappri in Banaskantha District of the State of Gujarat in which Tulsiram Prajapati was allegedly shot in an encounter while he had opened fire on the police party, who was on the look out for him to apprehend him, after he had allegedly escaped from a running train while being taken back to Rajasthan from Gujarat where he was stated to be produced in a court proceeding, Tulsiram Prajapati lodged two complaints in written, one to the Collector, Udaipur and another addressed to the Chairman, NHRC, New Delhi expressing the apprehension that he is likely and going to be killed by Gujarat and Rajasthan police. In fact, on 28.12.2006, Tulsiram Prajapati has been killed in the fak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill lack credibility as allegations were directed against them. This Court, therefore, thought it both desirable and advisable and in the interest of justice to entrust the investigation to the CBI so that it may complete the investigation at an early date. It was clearly stated that in so ordering no reflection either on the local police of the State Government was intended. This Court merely acted in public interest. 36. The above decisions and the principles stated therein have been referred to and followed by this Court in Rubbabuddin Sheikh (supra) where also it was held that considering the fact that the allegations have been leveled against higher level police officers, despite the investigation made by the police authorities of the State of Gujarat, ordered investigation by the CBI. Without entering into the allegations leveled by either of the parties, we are of the view that it would be prudent and advisable to transfer the investigation to an independent agency. It is trite law that accused persons do not have a say in the matter of appointment of an investigation agency. The accused persons cannot choose as to which investigation agency must investigate the alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the execution of the warrant. By relying on decision in Vineet Narain's case (supra), this Court reiterated that once a charge-sheet is filed in the competent court after completion of the investigation, the process of monitoring by this Court for the purpose of making the CBI and other investigating agencies concerned perform their function of investigating into the offences concerned comes to an end; and thereafter it is only the court in which the charge-sheet is filed which is to deal with all matters relating to the trial of the accused, including matters falling within the scope of Section 173(8) of the Code. c) In M.C. Mehta (Taj Corridor Scam) v. Union of India and Ors . (2007) 1 SCC 110, this Court again reiterated the same principle. The following conclusion is relevant: 30. At the outset, we may state that this Court has repeatedly emphasized in the above judgments that in Supreme Court monitored cases this Court is concerned with ensuring proper and honest performance of its duty by CBI and that this Court is not concerned with the merits of the accusations in investigation, which are to be determined at the trial on the filing of the charge-sheet in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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