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TMI Blog2013 (4) TMI 903X X X X Extracts X X X X X X X X Extracts X X X X ..... a gap of 3½ years and also considering the nature and gravity of the crime, rejected the investigation conducted/concluded by the State Police and directed the State police authorities to handover the case to the CBI. After investigation, the CBI filed a fresh FIR dated 29.04.2011 against various police officials of the States of Gujarat and Rajasthan and others for acting in furtherance of a criminal conspiracy to screen themselves from legal consequences of their crime by causing the disappearance of human witness, i.e., Tulsiram Prajapati, by murdering him on 28.12.2006 and showing it off as a fake encounter. Though the said FIR did not specifically name any person, in the charge sheet dated 04.09.2012 filed in the said FIR before the Court of Judicial Magistrate First Class, Danta District, Banaskantha, Gujarat, the petitioner herein was arrayed as A-1. Further, due to lack of jurisdiction, the charge sheet was presented before the 2nd Additional Chief Judicial Magistrate, (First Class), (CBI Court No. 1), Ahmedabad, Gujarat. 3) Being aggrieved by the fresh FIR dated 29.04.2011 and charge sheet dated 04.09.2012, the petitioner herein has filed the above said writ petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contemplated under Section 220 of the Code of Criminal Procedure, 1973 (in short 'the Code'). It is further pointed out that as per the CBI, the alleged criminal conspiracy commenced when Sohrabuddin and Kausarbi (whose deaths were in question in the first FIR) and Tulsiram Prajapati (whose death was in question in the second FIR) were abducted from Hyderabad after which Sohrabuddin was allegedly killed on 25/26.11.2005 and Kausarbi and Tulsiram Prajapati were killed thereafter since they were, as per CBI, the eye-witnesses. Finally, it is highlighted that the competent jurisdictional court has already taken cognizance of all the three alleged killings in the chargesheet/challan filed by the CBI in the first FIR itself. 9) Before going into the factual matrix as projected by learned senior counsel for the petitioner, it is desirable to refer to the stand taken by the CBI. 10) 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 distinct offences arising out of separate conspiracies though inter-connected with each other as the motive behind the murder of Tulsiram Prajapati w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would show distinct and separate conspiracy to eliminate Sohrabuddin and, thereafter, another conspiracy was hatched in order to eliminate Tulsiram Prajapati as soon as the accused persons apprehended that Tulsiram Prajapati would spill the beans with respect to elimination of Sohrabuddin in a fake encounter. 12) It is the definite case of the CBI that the investigation has revealed that subsequent to the murder of Hamid Lala, Sohrabuddin and Tulsiram Prajapati continued their criminal activities in the States of Maharashtra, Rajasthan and Gujarat. However, Sohrabuddin remained elusive and beyond the reach of the Gujarat Police. It was, therefore, that the accused Amit Shah (petitioner herein), D.G. Vanzara, S. Pandiyan Rajkumar, Dinesh Man and others entered into a conspiracy to abduct and murder Sohrabuddin. Accordingly, D.G. Vanzara, with the aid of Abhay Chudasma, S.P. Valsad had Tulsiram Prajapati, an associate of Sohrabuddin, in order to trace Sohrabuddin. Whilst giving such directions, D.G. Vanzara also assured Tulsiram Prajapati that he would ensure safe passage for him as he would be implicated in some petty cases. It was after this assurance from D.G. Vanzara and Abhay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d at BK by border range." 15) It is also pointed out by the CBI that at the time of the murder of Sohrabuddin, there was no conspiracy to murder Tulsiram Prajapati and it is only subsequent to his murder when the accused persons feared of Tulsiram Prajapati being a threat to them and would spill the beans as he was a material witness in the first conspiracy inasmuch as tracing and locating of Sohrabuddin on the assurances of the accused, another conspiracy was hatched to murder a potential witness to the murder of Sohrabuddin. By highlighting these factual details, it is pointed out by the CBI that there were two distinct and separate conspiracies. 16) With these factual aspects, as projected by the CBI, let us analyze further details highlighted by learned senior counsel for the petitioner as well as the specific stand of the CBI in the earlier proceedings asserted before this Court in the form of affidavit/counter affidavit and status reports. Entrustment of investigation to the CBI in respect of Ist FIR: 17) Initially, Gujarat police conducted investigation into the killing of two individuals and filed charge sheet in the FIR being Crime Register No. 5/2006. This Court, in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n paras 65, 66 and 82 are relevant which are noted hereunder:- "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 details of what happened to him once he was abducted. The possibility of the third person being Tulsiram Prajapati cannot be ruled out, although the police authorities or the State had made all possible efforts to show that it was not Tulsiram. In our view, the facts surrounding his death evokes strong suspicion that a deliberate attempt was made to destroy a human witness. 66. So far as the call records are concerned, it would be evident from the same that they had not been analysed properly, particularly the call data relating to three senior police officers either in relation to Sohrabuddin's case or in Prajapati's case. It also appears from the charge-sheet as well as from the eight action taken reports that the motive, which is very important in the investigation reports was not properly investigated into as to the reasons of their killing. The motive of conspiracy cannot be merely fame and name. No justification can be found for the Investigating Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the first FIR above. Though, before us, a different stand was taken by the CBI, the following excerpts of the charge sheet clearly show that CBI was very categorical that killing of Tulsiram Prajapati is also a part of the very same conspiracy, which are as under:- "11......Shri Naymuddin, brother of Shri Sohrabuddin had gone to see off Shri Sohrabuddin, sister-in-law Smt. Kausarbi and Tulsiram Prajapati at Indore Bus Stand. 19. Investigation further revealed that the Police Party also followed the luxury bus. About 15 to 20 kilometers from the hotel, on the instructions of Shri Rajkumar Pandiyan (A-2) their vehicles overtook the luxury bus and stopped the bus. Two police persons entered into the bus and asked the driver to switch on the light. While the third police person was having torch in his hand remained near the door of the bus. The police persons told there is police checking. All the three police personnel were in civil dress. They picked up Tulsiram Prajapati who was sitting in the bus. After sometime, they again came into bus and picked up Sohrabuddin. When Sohrabuddin was made to get down from the bus, Kausarbi also got down..... 20. Investigation further disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et dated 04.09.2012 for killing of Tulsiram Prajapati. 23) It is also relevant to point out that when Writ Petition (Crl.) No. 115 of 2007 was pending, the CBI, by way of an affidavit dated 19.08.2010, furnished the following information:- (i) Tulsiram Prajapati's killing is a part of the same series of acts in which killing of Sohrabuddin and Kausarbi took place. (ii) All the three killings are part of the same conspiracy. (iii) Trial of all the three offences shall have to be one trial under Section 220 of the Code. (iv) CBI be given formal permission to investigate Tulsiram Prajapati killing as "further investigation" in the first FIR filed by CBI which investigation was going on. (v) If CBI is not formally given investigation of Tulsiram Prajapati, prosecution would face questions of "issue estoppel" & "Res- judicata". In the said affidavit, the CBI even prayed for "further investigation" in the first FIR which becomes evident from the prayer made by the CBI in the last paragraph of the affidavit which reads as under:- "12. That on 12.08.2010, the Hon'ble Supreme Court (Mr. Justice Aftab Alam and Mr. Justice R.M. Lodha) has granted three more months to complete th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ausarbi including the alleged possibility of a larger conspiracy. By that order, the CBI was asked to complete the investigation within six months from the date it took over the case from the State police and to file its report to this Court when this Court would pass further necessary orders in accordance with the said report, if necessary. As on date, the investigation ordered to be made remains incomplete. In continuation of the previous order, therefore, the time allowed to the CBI to complete the investigation is extended by three months from today, at the end of which they would file a status report before this Court. Put up on receipt of the status report." 25) It is clear that in both the status report(s) as well as in the affidavit filed in W.P. (Crl.) No. 115/2007, the CBI prayed for entrusting the investigation relating to Tulsiram Prajapati on the ground that his encounter was a part of the very same offence in the first FIR which CBI was investigating. It is not in dispute that this Court, after entrusting the investigation to the CBI by order dated 12.01.2010 was monitoring the said investigation in W.P. (Crl.) No. 6 of 2007. Even in the said writ petition, the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th) No. 1, Udaipur, on 27.01.2006 and 02.02.2006 and his letters addressed to the National Human Rights Commission (NHRC) dated 18.05.2006 and to the Collector, Udaipur dated 11.05.2006. In addition, he made verbal/oral prayer before the Hon'ble Principal Judge, Ahmedabad on 28.11.2006. Out of sheer desperation, he made the fervent appeal before the Hon'ble Judge that he would be alleged to have shown as escaped from the police escort party custody and subsequently killed in a fake encounter. True to his apprehension, the premonition came true as the events such as his alleged escape from the escape custody on 26.12.2006 registered with Ahmedabad Railway PS vide CR No. 294/2006 on 27.12.2006 and alleged fake encounter on 28.12.2006 registered with Ambaji Police Station vide CR No. 115/2006 dated 28.12.2006. 54. Shri V.K. Goda, who had demitted the office of IG of Police, Udaipur on 31.10.2005 on superannuation has stated during his examination by the CBI that he had received a letter in the month of November 2005 addressed to him in his named cover by the family members of Tulsiram Prajapati which was duly forwarded by the then MLA. The letter could not be made available to the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... litate the murder of Tulsiram Prajapati. It has also come into evidence that this time before leaving Udaipur Jail on 25.12.2006, Tulsiram had expressed apprehension of his being killed in an encounter. Contrary to the earlier two occasions, this time only four police personnel were sent from the jail as his escort. On the way back from Ahmednagar to Udaipur, he was shown having run away from the custody on the night intervening 26/27.12.2006. Next day, he was killed in an alleged encounter. 56. The investigation disclosed that the Udaipur Police had sent letter No. 1120 dated 27.12.2006 to SP Banaskantha, alleging that the call details of Tulsiram show that he is hiding somewhere in Banaskantha. As per the documents received by the CBI from the office of IG, Udaipur, this letter was sent through fax at around 2332 hours on 27.12.2006. As per the telephone call details available, the phone was not used after the evening of 26.12.2006 so there was no reason for Udaipur Police to have information that Tulsiram was hiding somewhere in Banaskantha. This letter was nothing but an attempt to provide the Banaskantha police an opportunity to stage-manage the encounter of Tulsiram Prajapa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d/or res judicata and end up derailing or frustrating the interest of justice." 26) As rightly pointed out, this was the stand of the CBI prior to passing of the order in the decision dated 08.04.2011 in W.P. (Crl.) No. 115 of 2007. As a matter of fact, based on the above assertion of the CBI, this Court, in the above matter, entrusted the investigation of Tulsiram Prajapati's killing also to the CBI. It is also not in dispute that the above extracted status reports were part of record of proceedings in W.P. (Crl.) No. 115 of 2007. 27) Mr. Mahesh Jethamalani, learned senior counsel for the petitioner- Amit Shah also brought to our notice that he was arrested in the first FIR and chargesheet dated 23.07.2010 and was further interrogated even on the question of alleged killing of Tulsiram Prajapati. It is also brought to our notice that when the petitioner-Amit Shah filed regular bail application, the CBI opposed the same contending that the alleged killing of Tulsiram Prajapati as a part of the same series of acts, viz., killing of Sohrabuddin and Kausarbi. The following objections were taken by the CBI while considering the bail application which are as under:- "The applicant t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue-estoppel or res judicata against prosecution. 13. 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. 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame transaction are investigated and prosecuted by different agencies, it may cause failure of justice not only in one case but in other trial as well. It is further seen that there is substantial material already on record which makes it probable that the prime motive of elimination of Tulsiram Prajapati was that he was a witness to abduction of Sohrabuddin and Kausarbi. 37).....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, 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. 28) The findings rendered by us in Narmada Bai (supra) clearly show the acceptance of the contentions raised by the CBI that killing of two individuals and killing of third person, viz., Tulsiram Prajapati were part of the very same conspiracy and in the same series of acts so connected together that they will have to be tried in one trial under Section 220 of the Code. 29) Aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame day i.e., 26.11.2005 for achieving the common object of keeping Tulsiram Prajapati under their control. 6.13 On 08.02.2006, Tulsiram Prajapati was brought from Central Jail, Udaipur to Ujjain, Madhya Pradesh. When he met Narmada Bai and Pawan Kumar Prajapati, he told them that he was under severe stress because he apprehended that the Gujarat and Rajasthan Police would kill him in a false encounter. He also confessed to them that Gujarat Police had used him for tracing and abducting Sohrabuddin and his wife. He had also expressed his apprehension that the police would kill him because he was a witness to the abduction of Sohrabuddin and his wife Kausarbi. 6.26.....With the object of shielding themselves from the grave implications of abduction and murder of Sohrabuddin and his wife Kausarbi, the accused expedited the pace of their criminal conspiracy as aforesaid to abduct and murder Tulsiram Prajapati as soon as possible. 6.34.....during the relevant period to show that they were acting in concert with each other in furtherance of the criminal conspiracy as aforesaid to murder Tulsiram Prajapati who was no longer under their control and further with the efforts being mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgesheet in the first FIR'. Legal aspects as to permissibility/impermissibility of second FIR : 31) Now, let us consider the legal aspects raised by the petitioner-Amit Shah as well as the CBI. The factual details which we have discussed in the earlier paragraphs show that right from the inception of entrustment of investigation to the CBI by order dated 12.01.2010 till filing of the charge sheet dated 04.09.2012, this Court has also treated the alleged fake encounter of Tulsiram Prajapati to be an outcome of one single conspiracy alleged to have been hatched in November, 2005 which ultimately culminated in 2006. In such circumstances, the filing of the second FIR and a fresh charge sheet for the same is contrary to the provisions of the Code suggesting that the petitioner was not being investigated, prosecuted and tried 'in accordance with law' . 32) This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution. In T.T. Anthony (supra), this Court has categorically held that r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat sub-section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess to the abduction and consequent murders of Sohrabuddin and Kausarbi; and (iii) Tulsiram Prajapati was allegedly kept under the control of accused police officers, as a part of the same conspiracy, till the time he was allegedly killed in a fake encounter. In view of the factual situation as projected by the CBI itself, the ratio laid down by this Court in C. Muniappan (supra), viz., merely because two separate complaints had been lodged did not mean that they could not be clubbed together and one chargesheet could not be filed [See T.T. Anthony (supra)]. 34) In view of the consistent stand taken by the CBI, at this juncture, CBI may not be permitted to adopt a contradictory stand. 35) Learned counsel for the petitioner has placed reliance on the following decisions of this Court which explained "same transaction": i) Babulal vs. Emperor , AIR 1938 PC 130 ii) S. Swamirathnam vs. State of Madras, AIR 1957 SC 340 iii) State of A.P. vs. Kandimalla Subbaiah & Anr., AIR 1961 SC 1241 iv) State of A.P. vs. Cheemalapati Ganeswara Rao & Anr., AIR 1963 SC 1850 36) In Babulal (supra), the Privy Council has held that if several persons conspire to commit offences, and commit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mutually exclusive in the sense that it is not possible to combine the provisions of two or more clauses in any one case and to try jointly several persons partly by applying the provisions of one clause and partly by applying those of another or other clauses. A large number of decisions of the different High Courts and one of the Privy Council have been considered in this case. No doubt, as has been rightly pointed out in this case, separate trial is the normal rule and joint trial is an exception. But while this principle is easy to appreciate and follow where one person alone is the accused and the interaction or intervention of the acts of more persons than one does not come in, it would where the same act is committed by several persons, be not only inconvenient but injudicious to try all the several parsons separately. This would lead to unnecessary multiplicity of trials involving avoidable inconvenience to the witnesses and avoidable expenditure of public time and money. No corresponding advantage can be gained by the accused persons by following the procedure of separte trials. Where, however, several offences are alleged to have been committed by several accused persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to be conducted. It is clear from the decision that if two FIRs pertain to two different incidents/crimes, second FIR is permissible. In the light of the factual position in the case on hand, the ratio in that decision is not helpful to the case of the CBI. 43) The CBI has also placed reliance on a recent decision of this Court in Surender Kaushik (supra). A careful perusal of the facts which arose in the said case would disclose that three FIRs which formed the subject matter of the said case were registered by three different complainants. Two of the FIRs consisted of cross cases inasmuch as the complainant of the first FIR was accused in the other while the accused in the first FIR was the complainant in the second FIR. The third FIR was filed by a third person citing both the complainants of first two FIRs as accused persons. In view of the above peculiar facts situation arising in the said case that the second and third FIRs were not quashed by the High Court, which decision was upheld by this Court, we are satisfied that the said decision has no relevance to the facts of the present case. 44) In the case of Nirmal Singh Kahlon (supra), this Court has carved out an except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is fortified by the status report dated 11.11.2011 filed by the CBI has already been extracted in paragraphs supra. 47) In the light of the factual details, since the entire larger conspiracy is covered in the first FIR dated 01.02.2010 and in the investigation of the said FIR, the CBI, after investigating Tulsiram Prajapati's encounter recorded a finding in supplementary charge sheet dated 22.10.2010 filed in the killings of Sohrabuddin and Kausarbi case that the said encounter was a fake one, we are satisfied that the decision in Ramlal Narang (supra) would not apply to the facts of the case on hand. Even otherwise, as pointed out by learned senior counsel for the petitioner, in Ramlal Narang (supra), the chargesheet filed pursuant to the first FIR was withdrawn which was a fact which weighed with this Court while delivering the judgment in the second case. 48) Upkar Singh (supra) also carves out a second exception to the rule prohibiting lodging of second FIR for the same offence or different offences committed in the course of the transaction disclosed in the first FIR. The only exception to the law declared in T.T. Anthony (supra), which is carved out in Upkar Singh (supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that this Court in exercise of its jurisdiction under Article 32 may not like to adjudicate such disputed questions of fact which require evidence to be led and its appreciation. 51) As against this, Mr. Mahesh Jethmalani, learned senior counsel for the petitioner submitted that the CBI is not faced with any prejudice which is to be caused to it, if the relief as prayed for by the petitioner is granted. Admittedly, the petitioner is not praying for quashing of the charge sheet dated 04.09.2012. During the course of argument, when this Court specifically put a question to learned ASG appearing for the CBI as to what prejudice would be caused to the CBI if instead of treating the charge sheet dated 04.09.2012 to be fresh and independent charge sheet, the same will be treated as a supplementary charge sheet in the first charge sheet, there was no definite answer as to what prejudice would be caused to the CBI. For the sake of repetition, it is relevant to mention that in our order dated 08.04.2011 in Narmada Bai (supra), while disposing of the said writ petition, this Court directed the CBI to take up the investigation as prayed accepting their contention that killing of Tulsiram Pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer-in-charge of the police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the Code. Sub-section (8) of Section 173 of the Code empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report (s) to the Magistrate. A case of fresh investigation based on the second or successive FIRs not being a counter case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is underway or final report under Section 173(2) has been forwarded to the Magistrate, is liable to be interfered with by the High Court by exercise of power under Section 482 of the Code or under Articles 226/227 of the Constitution. e) First Information Report is a report which gives first information with regard to any offence. There cannot be second FIR in respect of the same offence/even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be struck by the court. Accordingly, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences. As a consequence, in our view this is a fit case for quashing the second F.I.R to meet the ends of justice. j) The investigating officers are the kingpins in the criminal justice system. Their reliable investigation is the leading step towards affirming complete justice to the victims of the case. Hence they are bestowed with dual duties i.e. to investigate the matter exhaustively and subsequently collect reliable evidences to establish the same. Conclusion: 53) In the light of the specific stand taken by the CBI before this Court in the earlier proceedings by way of assertion in the form of counter affidavit, status reports, etc. we are of the view that filing of the second FIR and fresh charge sheet is violative of fundamental rights under Article 14, 20 and 21 of the Constitution since the same relate to alleged offence in respect of which an FIR had already been filed and the court has taken cognizance. This Court categorically accepted ..... 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