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TMI Blog2011 (4) TMI 1477X X X X Extracts X X X X X X X X Extracts X X X X ..... tution of India praying for issuance of a writ of mandamus or in the nature thereof or any other writ, order or direction directing the Central Bureau of Investigation (in short 'the CBI') to register a First Information Report (in short 'FIR') and investigate into the fake encounter killing of her son and submit its report to this Court. In the same petition, she also prayed for compensation for the killing of her son in a fake encounter thereby causing gross violation of Articles 21 and 22 of the Constitution. 2. Case of the Writ Petitioner: a) According to the Petitioner, she is 55 years old illiterate widow. Her younger son had been done away by Respondent Nos. 6-19 in a fake encounter with the ulterior intent to shield themselves in the investigation emanating under the directions of this Court in the case of Rubabbuddin Sheikh v. State of Gujarat and Ors (2010) 2 SCC 200. She came to know through local persons about the fake encounter and killing of Sohrabuddin and his wife Kausarbi and the directions of this Court in that case. On being informed about the said incident, she approached this Court for directions to register an FIR into the fake encounter kil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icularly, the Times of India dated 29.12.2006, the Petitioner has alleged that her son was being escorted by Udaipur (Rajasthan) Police from Ahmadabad to Udaipur in a train. When the train was passing through Himatnagar-Shymlaji Stretch, the deceased sought permission to go to the toilet. The policemen escorted him to the toilet where two of his accomplices disguised as passengers attacked the policemen by throwing chilli powder in their eyes. When the policemen called for the other members of the escort party, the goons fired at them and jumped off the moving train. In response, the police opened fire but the accused fled in the cover of darkness after shooting back at the police. (e) Pursuant to such alleged fleeing of Tulsiram Prajapati from police custody, Mr. Dinesh Kumar, SP, Udaipur called Mr. Vipul Agarwal, SP Banaskantha and informed him of the same. Thereafter, local police of Banaskantha headed by Mr. Vipul Agarwal under direct supervision of Mr. D.G. Vanzara, Range DIG, swung into action and registered an FIR being Crime Register No. 115 of 2006 at Ambaji Police Station, Banaskantha, on 28.12.2006 at 8.00 hrs. claiming that Tulsiram Prajapati had been killed in an enc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Article 32 of the Constitution is not maintainable as the case registered in respect of death of the Petitioner's son in police firing on 28.12.2006 was under investigation. The Writ Petition (Crl.) No. 6 of 2007 being a Habeas Corpus was entertained by this Court as an exceptional case and, therefore, the same cannot be cited as a precedent. It was further stated in the said affidavit that Tulsiram Prajapati was a dreaded inter-state criminal and was also known as Tulsiram Prajapati @ Prafull @ Samir son of Ganga Ram Prajapati involved in 21 criminal cases and he was killed on 28.12.2006 in police firing after escaping from police custody. In respect of the same, an FIR was registered in Ahmadabad Railway Police Station of Gujarat vide CR No. 294/06 under Sections 307, 224, 225, 34 of Indian Penal Code (in short "IPC") and Section 25(1)(AB) of the Arms Act, 1959 and Section 135 of Bombay Police Act, 1951. (b) According to the State, after escaping from the Police Custody, Tulsiram Prajapati was again confronted by Gujarat Police and Rajasthan Police and was killed in police firing for which an FIR was registered in Ambaji Police Station vide CR No. 115 of 2006 dated 28.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (which was the subject-matter decided by this Court in Writ Petition (Crl.) No. 6 of 2007). 4. Stand of Mr. Amit Shah - Respondent No. 2: (a) The present writ petition is an abuse of the process of law by/at the behest of political party controlling the CBI. (b) The investigation in a criminal case normally takes place in accordance with the procedure prescribed under the Code of Criminal Procedure (in short 'the Cr.P.C.') and by the normal investigating agency prescribed. The Constitutional Court can direct deviation from such statutorily prescribed method of investigation and direct an outside agency like the CBI to step in and investigate an offence only in extraordinary circumstances and in rarest of rare cases. The Petitioner has not led factual foundation of facts to hold that the present case is one of the rarest of rare cases which requires deviation from the statutorily prescribed mode of investigation. (c) On perusal of both the investigations and charge-sheet which are filed in both the offences, it is seen that there is no credible evidence to support the view that Tulsiram Prajapati was that 'third person' and the evidence which the CBI is relyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the abduction and killing of Sohrabuddin and his wife Kausarbi. (c) The murder of Tulsiram Prajapati took place on 28.12.2006, case was registered on 28.12.2006 and Gujarat CID commenced investigation on 22.03.2007. However, even after a lapse of 3 years, no action was taken against any of the accused. As directed by this Court, only on the investigation of Tulsiram Prajapati's case, the "larger conspiracy" would be established and the mandate and tasks assigned by this Court to the CBI would be accomplished both in letter and spirit towards the goal of a fair trial, upholding the rule of law. If Tulsiram Prajapati's fake encounter case is not transferred to the CBI for investigation, it may lead to issue-estoppel or res judicata against prosecution. Stand of the other Respondents 6. As far as the officials of the Gujarat State Police are concerned, they reiterated the stand taken by the State. Mr. Dinesh Kumar, S.P. Udaipur, Rajasthan-Respondent No. 8 has filed a separate counter affidavit denying all the allegations made by the Petitioner and taking the same stand as that of the State of Gujarat and ultimately prayed for dismissal of the writ petition. 7. In the ligh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the CBI. Analysis as to issue (a): 11. The first issue i.e. (a) as in the case on hand also arose in the case of Rubabbuddin Sheikh (supra). The factual details therein will be discussed in the later paragraphs. With regard to the similar objection as to further investigation by the CBI, this Court considered the following cases: (i) Vineet Narain v. Union of India (1996) 2 SCC 199 (ii) Union of India v. Sushil Kumar Modi (1998) 8 SCC 661 (iii) Rajiv Ranjan Singh 'Lalan' (VIII) v. Union of India (2006) 6 SCC 613 (iv) Hari Singh v. State of U.P. (2006) 5 SCC 733 (v) Aleque Padamsee v. Union of India (2007) 6 SCC 171 (vi) M.C. Mehta v. Union of India (2008) 1 SCC 407 (vii) R.S. Sodhi v. State of U.P. 1994 Supp (1) SCC 143 (viii) Ramesh Kumari v. State (NCT of Delhi) (2006) 2 SCC 677 (ix) Kashmeri Devi v. Delhi Administration 1988 Supp SCC 482 (x) Gudalure M.J. Cherian v. Union of India (1992) 1 SCC 397; and (xi) Punjab and Haryana High Court Bar Asson. v. State of Punjab (1994) 1 SCC 616 and concluded in paragraphs 60 and 61 as under: 60. Therefore, in view of our discussions made hereinabove, it is difficult to accept the contentions of Mr Rohat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulsiram Prajapati also filed Writ Petition (Crl.) No. 115 of 2007 and, the same was tagged along with Writ Petition (Crl.) No. 6 of 2007 which was filed by brother of Sohrabuddin. The cause title of the case vide Rubabbuddin Sheikh v. State of Gujarat and Ors. (2010) 2 SCC 200 shows that Writ Petition (Crl.) No. 115 of 2007 was heard along with Writ Petition (Crl.) No. 6 of 2007. Though at the end of the judgment, this Court directed that Writ Petition (Crl.) No. 115 of 2007 be listed after eight weeks before an appropriate Bench. As pointed out by the learned Counsel for the Petitioner and the CBI, the said judgment records that there is strong suspicion that the 'third person' picked up with Sohrabuddin was Tulsiram Prajapati. It was also observed that call records of Tulsiram Prajapati 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. In para 65, the following observations are relevant: 65. It also appears from the charge-sheet that it identifies the third person who was taken to Disha farm as Kalimuddin. But it does not contain the deta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suspicion about any one who planned the attack on him. He named seven persons who had actually participated in the attack. In the said letter, he did not allege or even suspect that this dangerous assault in jail had anything to do with the Sohrabuddin-Kausarbi fake encounter case or that he was being eliminated because he was a witness of the murder of either Sohrabuddin or his wife. ii) On 18.05.2006, Tulsiram Prajapati addressed another letter to the Chairman, NHRC, New Delhi. In this letter again, he did not allege that he was an eye witness and that is why he was afraid of being eliminated. He, however, did admit that he is an accused in serious cases in the State of Maharashtra, Gujarat, Madhya Pradesh and Rajasthan. What he alleged was that there was a conspiracy among the police officers of these States to knock him out. Even the NHRC did not draw any inference. Ultimately, Tulsiram Prajapati was killed at about 8.00 a.m. on 28.12.2006. The scene of offence was within the jurisdiction of Ambaji Police Station in District Banaskantha of Gujarat. An FIR of this incident was registered on the same day within 15 minutes. iii) Till his death, no evidence had emerged that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conduct of the CBI does not inspire any confidence in this case. It has become a party to a political conspiracy. iv) In the Status Report Nos. 1 and 2 filed by the CBI and submitted before the other Bench, they have already reported to the Court that the Sohrabuddin couple on their fateful journey from Hyderabad to Gujarat were accompanied by a 'third person' and that 'third person' was Tulsiram Prajapati. This is a dishonest finding based upon some fabricated circumstances which are capable of being easily demolished. v) The order dated 12.01.2010 in Rubabbuddin Sheikh (supra) is contrary to binding authorities and no credence or value can in law be assigned to the two Status reports. The very anxiety on the other side that this should be handed over to the CBI creates a serious apprehension about the impartiality and independence of this agency. Analysis as to issue (b): 17. Inasmuch as the present writ petition is having a bearing on the decision of the writ petition filed by Rubabbuddin Sheikh and also the claim of the Petitioner, the observations made therein, particularly, strong suspicion about the 'third person' accompanied Sohrabuddin, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Bench heard only the counsel for the State of Gujarat, however, it is not the case of any one that the State was not given adequate opportunity before the said Bench. As said earlier, in fact, the State was represented by Mr. Mukul Rohtagi, reputed senior counsel and he put forth all relevant materials highlighting the stand of the State. Inasmuch as all the police officials of the State of Gujarat including the Respondent No. 2 in the present writ petition were part of the State in Rubabuddin Sheikh's case, we are of the view that it cannot be said that the same is not applicable to the case on hand. The following conclusion in Rubabbuddin Sheikh's case are relevant: 53. It is an admitted position in the present case that the accusations are directed against the local police personnel in which the high police officials of the State of Gujarat have been made the accused. Therefore, it would be proper for the writ Petitioner or even the public to come forward to say that if the investigation carried out by the police personnel of the State of Gujarat is done, the writ Petitioner and their family members would be highly prejudiced and the investigation would also not com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any other independent agency in spite of the fact that the charge-sheet has been submitted in court.... 62. From a careful examination of the materials on record including the eight action taken reports submitted by the State police authorities and considering the respective submissions of the learned Senior Counsel for the parties, we are of the view that there are large and various discrepancies in such reports and the investigation conducted by the Police Authorities of the State of Gujarat and also the charge-sheet filed by the State investigating agency cannot be said to have run in a proper direction. It appears from the charge-sheet itself that it does not reveal the identity of police personnel of Andhra Pradesh even when it states that Sohrabuddin and two others were picked up by Gujarat Police personnel, accompanied by seven personnel of Hyderabad Police. It also appears from the charge-sheet that Kausarbi was taken into one of the two Tata Sumo Jeeps in which these police personnel accompanied the accused. They were not even among the people who were listed as accused. Mr Gopal Subramanium, Additional Solicitor General for India (as he then was) was justified in ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not kill anyone but they fired shots which damaged the computer installed in the office. An employee of the firm, who was sitting on the ground floor, where the incident took place, lodged an FIR with the Navrangpura Police Station on 08.12.2004 in the city of Ahmadabad. The FIR did not name any one of the assailant, however, it was then discovered that the FIR was substantially a false one and the suspects were known and yet had not been named. As a result of fresh discovery made during the course of investigation, it was Patel Brothers who were ultimately charge-sheeted for filing a false case. The second case is Hamid Lala murder case in which one Hamid Lala, a protector of marble dealers of Rajasthan against criminal extortion by Sohrabuddin gang was shot dead at a place within the jurisdiction of Ambaji Police Station, Udaipur in the State of Rajasthan. This incident took place on 31.12.2004. It is a fact that Sohrabuddin after committing Hamid Lala's murder absconded and was not available to the Rajasthan Police. Later, it came to the knowledge of the investigating authorities that he had been hiding in a village of Madhya Pradesh. In the Hamid Lala murder case, Sohr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 'third person' and in all probability that person was Kalimuddin, who had succeeded in getting the couple from Madhya Pradesh to Hyderabad and he handed over the couple to the murdering team which certainly included the Andhra Pradesh officers. 22. According to the learned senior counsel, from all the details particularly, the charge-sheet filed by the Gujarat Police which included even senior police officers as accused, there is no need for further investigation by the CBI. Even otherwise, according to them, the conduct of the CBI does not inspire any confidence in this case. It has become party to a political conspiracy and acting as subordinate police force of the Central Government in sensitive cases having political implications. 23. If we analyze the allegations of the State and other Respondents with reference to the materials placed with the stand taken by the CBI, it would be difficult to accept it in its entirety. It is the definite case of the CBI that the abduction of Sohrabuddin and Kausarbi and their subsequent murders as well as the murder of Tulsiram Prajapati are one series of acts, so connected together as to form the same transaction under Section 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is a systematic effort on the part of the State Government supporting the police to tamper with witnesses and evidences.... It was pointed out that the words "State Government supporting" are sought to be struck off and are substituted by "certain agencies including" in place of "State Government supporting". This was pointed out as a direct evidence of systematic effort of the State Government attempting to tamper with the witnesses and evidences. The CBI has also pointed out that Ms. Geeta Johri in her note dated 22.05.2007 recorded that ...the Government may please therefore be moved to handover the case to the CBI for the purpose of meting out justice to the Petitioners and maintaining the image of Gujarat Police.... It is relevant to point out that the FIR recorded by the Gujarat Police in Sohrabuddin's case claimed it to be an encounter death and it was only on the intervention and issuance of rule nisi by this Court and filing of eight Action Taken Reports, the SIT informed this Court that it was a fake encounter and identified the police officials. 25. Apart from the above vital information, it is useful to refer that even after the transfer of Sohrabuddin&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and Tulsiram Prajapati were lodged in Udaipur prison at which time Tulsiram Prajapati told him that on information given by Tulsiram Prajapati, Sohrabuddin, Kausarbi and Tulsiram were abducted from Hyderabad. Among the entire statement of Azam Khan, the relevant part is that Tulsiram Prajapati helped in tracking down Sohrabuddin. 30. Learned senior counsel for the CBI, Mr. K.T.S. Tulsi has pointed out that since the CBI had primarily conducted the investigation in the case of encounter of Sohrabuddin and the murder of Kausarbi, it has so far not launched a full fledged investigation into the circumstances in which Tulsiram Prajapati was killed. According to him, certain facts have come to the notice of the CBI only as part of "larger conspiracy" with regard to which investigation was ordered by this Court and it was pointed out that full-fledged investigation by the CBI alone reveal further facts and lead to more direct evidence. Mr. K.T.S. Tulsi is right in claiming that the investigation in every criminal case is conducted on the basis of suspicion and reason to believe and to apply the standard of proof beyond doubt at a stage when a full fledged investigation is yet to be la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he encounter, the investigation by an officer of the UP Cadre may not be impartial.... 34. In another decision of this Court in R.S. Sodhi v. State of U.P. and Ors. 1994 Supp (1) SCC 143, the following conclusion is relevant: 2. ...We have perused the events that have taken place since the incidents but we are refraining from entering upon the details thereof lest it may prejudice any party but we think that since the accusations are directed against the local police personnel it would be desirable to entrust the investigation to an independent agency like the Central Bureau of Investigation so that all concerned including the relatives of the deceased may feel assured that an independent agency is looking into the matter and that would lend the final outcome of the investigation credibility. However faithfully the local police may carry out the investigation, the same will lack credibility since the allegations are against them. It is only with that in mind that we having thought it both advisable and desirable as well as in the interest of justice to entrust the investigation to the Central Bureau of Investigation forthwith and we do hope that it would complete the investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e officials of the State of Gujarat and police officers of two other States, i.e. Andhra Pradesh and Rajasthan, 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. Submission of Report by the CBI to this Court and subsequent monitoring. 38. The other question relates to submission of a report by the CBI to this Court and further monitoring in the case. Though in Rubabbudin Sheikh's case (supra), this Court directed the CBI that after investigation submits a report to this Court and thereafter, further necessary orders will be passed in accordance with the said report, in view of the principles laid down in series of decisions by this Court, we are not persuaded to accept the course relating to submission of report to this Court and monitoring thereafter. a) In Vineet Narain (supra), this Court held as under: In case of persons against whom a prima facie case is made out and a charge-sheet is filed in the competent court, it is that court which will then deal with that case on merits, in accordan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the accused including matters falling within the scope of Section 173(8) of the Code. Thus, generally, this Court may not require further monitoring of the case/investigation. However, we make it clear that if any of the parties including the CBI require any further direction, they are free to approach this Court by way of an application. Conclusion: 39. In view of the above discussion, the Police Authorities of the Gujarat State are directed to handover all the records of the present case to the CBI within two weeks from this date and the CBI shall investigate all aspects of the case relating to the killing of Tulsiram Prajapati and file a report to the concerned court/special court having jurisdiction within a period of six months from the date of taking over of the investigation from the State Police Authorities. We also direct the Police Authorities of the State of Gujarat, Rajasthan and Andhra Pradesh to cooperate with the CBI Authorities in conducting the investigation. 40. It is made clear that any observation made in this order is only for the limited purpose of deciding the issue whether investigation is to be handed over to the CBI or not and shall not be construed a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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