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TMI Blog2022 (7) TMI 1469X X X X Extracts X X X X X X X X Extracts X X X X ..... consisting of the CRPF and the CoBRA Battalions are responsible for the alleged brutal massacre of the tribals in the respective villages referred to above. 3. In the aforesaid context, the writ Petitioners have prayed for the following reliefs: (a) Issue a writ of mandamus or any other appropriate writ, order or direction to the Respondents to have the CBI take over the investigation and prosecution with respect to the complaints made by the Petitioners and others with respect to the massacres that took place on 17.9.2009 and 1.10.2009 as set out in this petition; (b) Pass an order directing the payment of compensation to the victims and their families for the extra judicial executions, for the looting of their properties, for the burning of their houses and other losses suffered by the victims on account of the unlawful activities of the Respondents and their agents; (c) Pass any such further order or orders, as this Hon'ble Court may deem fit and proper in the facts and circumstances stated herein above. 4. By way of the Criminal M.P. No. 3173 of 2010, further reliefs have been prayed for as under: (a) Order directing the State of Chhattisgarh to constitute and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the family members of the Petitioners Nos. 2 to 13 respectively were chopped off by the security force. It is alleged that the security forces did not spare even the infants. It is also alleged that the breast of a 70-year-old tribal woman were chopped off and was stabbed to death by the members of the police forces. It is also alleged that a 2-year-old infant was brutally murdered. The houses of the tribals were burnt. Money and properties were looted. 12. It has been further pointed out that on 8th January 2009, 19 people were killed by the above referred forces at the village Singaram, Tehsil Konta, District Dantewada. 13. On 18th March 2008, 3 tribals were killed at Matwada, Salwa Judum Camp, District Bijapur, by the Chhattisgarh Police and SPOs. 14. It has been pointed out that with respect to the aforesaid two incidents, the matter was taken up by the National Human Rights Commission. 15. It is the case of the Petitioner No. 1 that as the Special Forces and the State of Chhattisgarh itself are involved in the alleged brutal massacre of the tribals, the investigation of all the complaints should be at the instance of none other than the CBI. 16. In the memorandum of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26.10.2010 by the learned Chief Judicial Magistrate, Dantewada. 02 PS-Chintagufa Dt. - 20.09.2009 Crime No. 10/2009 Sec.- 307, 395, 397, 147, 148, 149, 302 IPC, 25, 27 Arms Act, 3, 4 Explosive Subs. Act. Shri Premprakash Awadhiya, Sub Inspector PS. - Sukma Unknown Uniformed female and male naxalites about 200- 300 in number. On 16.09.2009, the police party left for Singanmadgu for Anti Naxal operation from police station Chintagufa. On the morning of 17.09.2009, when the party reached the dense forests of Singanmadgu, the camp of Naxalites was seen from where some weapons and other items were recovered. Ahead of that, further, there was an EoF of SFs with Maoists, where a dead body of a Maoists was recovered. There after a while 200-300 unknown Naxalites again cordoned the police party and attacked the Security forces, in which Assistant Commandant Shriram Manoranjan, Assistant Commandant Shri Rakesh Kumar Chaurasiya, Sub Inspector Shri Sushil Kumar Varma, Head Constable Lalit Kumar, Constable Manoharlal Chandra and Constable Uday Kumar Yadav of CoBRA company were martyred and four others - Constable Satpal, Constable Harish Thakur, Constable Kamalvoshe and Constable Mohammad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 48, 149, 302 IPC, 25, 27 Arms Act. Shri Maadvi Hadma Add.- Gachchanpalli village. 20-25 Unknown Uniformed person carrying gun and banda. On 21.02.2010 on report of applicant Madvi Hadma resident of Gachchanpalli FIR No.-06/2010 under sections - 147, 148, 149, 302 IPC & 25, 27 Arms Act was registered at PSBhejji against unknown Naxalites for murder of Madvi Hidma, Madvi Joga, Kawasi Ganga, Madkami Chula & Dudhi Muye. Charge sheet filed on 09.09.2010 against 10 named absconding accused u/sec. 147, 148, 149, 302 IPC, 25, 27 Arms Act. Permanent Non-Bailable Warrant has been issued against the accused by the Hon'ble Judicial Magistrate First Class (JMFC) Konta. 06 PS-Bhejji Dt. - 22.02.2010 Crime No. 07/2010 Sec.- 147, 148, 149, 302 IPC, 25, 27 Arms Act. Shri Komram Lachcha Add.- Chintagufa Unknown number of 20- 30 persons holding gun in uniform. Absconding accused - 1-Venktesh s/o Unknown 2-Rajesh alias Joga s/o Unknown 3-Vijay alias Ekanna 4-Savitri Bai w/o Unknown 5-Manila w/o Unknown 6-Bhima s/o Unknown 7-Jayram s/o Unknown 8-Samita w/o Chandrana 9-Bhaskar alias Rajesh s/o Venkteswerlu 10-Kavita d/o Jayram On 21.02.2010 on report of applicant Madvi Hadma residen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to detract the police personnel from tackling the menace of Naxalism. The police personnel have lost their lives while combating the menace of Naxalite activities. A cavalcade of entire police personnel was ambushed in which even one S.P. died. PARAWISE REPLY: 1. The contents of paragraph No. 1 of the writ petition are denied and the attack on the police party by the Naxalites have been sought to be given the connotation of 'massacre'. The State of Chhattisgarh have explained the three incidents of 17.09.09 and 01.10.09 with Naxalites in detail in the subsequent paragraphs. The word 'massacre' is being used in a cursory manner without revealing the true nature of the incidents on 17.09.2009 and 01.10.2009. RE: INCIDENT OF 17.09.09 [GACHANPALLI]: A team of CoBRA Battalion along with other police officials started off for village Gachanpalli at around 07:45 PM on 16.09.2009, when the police party reached village Gachanpalli and cordoned off the Naxal camp and at around 5.30 AM, the Naxalite opened fire indiscriminately. The police had no option but to retaliate in self defence. However even after ceasefire, 150-200 Naxalites were able to retreat into dense ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s consisting of COBRA, local police and SPOs had started off on 30.09.2009 for Gompad village on the information of a naxal camp being run near village. When police party was about to reach the village at 06:30 AM on 01.10.2009, it came under heavy fire by Naxalites. The attack was repulsed and place was searched. Police did not find anybody. Afterwards the village was also searched but everyone fled away. The above incident is being investigated by Bhejji PS after registration of FIR No. 05/09 Under Section 147, 148, 149, 307 Indian Penal Code and 25, 27 Arms Act. The case has been transferred to CID for investigation. The SP office received complaints of Soyam Dula son of late Soyam Dula, Soyam Rama son of late Soyam Kanna, Mrs. Sodi Sambo wife of Sodi Badra, all belonging to Gompad village, all of them desirous of registration of crime against security forces for alleged killing of their relatives. The reason for holding further investigation in the manner is because the complaints are filed after much delay of the alleged crime and secondly, all the complaints are in a fixed format and typed in same manner giving rise to suspicion that those complaints have been engineered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .10.2009 and transfer of case to the CBI is completely unwarranted. In any case, whether a matter could be transferred to CBI or not is pending before the Constitution Bench of this Hon'ble Court and the judgment is still awaited. 5. In response to the contents of paragraph No. 5 of the writ petition, it is stated that writ petitions concerning incidents dated 18.03.2008 at District Bijapur and 08.01.2009 at District Dantewada are already pending before the Hon'ble High Court as Writ Petition Nos. 211/2008 & 363/2009 respectively. The Hon'ble High Court of Chhattisgarh is in seisin of the matter and the deponent has already traversed the pleadings before the Chhattisgarh High Court. 6. The contents of paragraph No. 6 of the writ petition are denied for want of knowledge. 7. In response to the contents of paragraph No. 7 of the writ petition, it is submitted that incident of 17.01.2009 is already explained in the preceding paragraphs and therefore it requires no further reply. The facts have been completely distorted and are stated in false manner. It has already been stated that Madavi Deva was the uniformed Naxalite whose body found from the site while the incide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the presence of Panda Soma on 01.10.2009 is completely falsified. The allegations of looting, burning of houses, harassment & torture by the security forces are also denied vehemently. 8. The contents of paragraph No. 8 of the writ petition are denied. There have been no extra judicial killings and in fact several police personnel have also lost their lives. The Petitioners No. 2 to 13 may not like go to the police station but they can certainly go to Magistrate for registration of FIR Under Section 156(3) of the Code of Criminal Procedure. The judicial system even at the grass-root level is independent and would be in position to monitor the investigation in an effective manner. 9. & Ors. In response to the contents of paragraphs No. 9, 11, 12, 13, 14, 15, 17, 18, 19, 20 and 21 of the writ petition, it is submitted that the complaint are under investigation and the stories are more in the nature of 'make-believe'. The true incident has already been narrated in the preceding paragraph. The Complainants have not been found whenever the places of their residence is visited by the investigating authorities. The S.P., Dantewada, made a request to the Petitioner No. 1 to fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven by the Petitioner No. 1 and is a fiction. 24. The contents of paragraph No. 24 of the writ petition are denied. Certain matters are subjudice before Hon'ble High Court of Chhattisgarh at Bilaspur while in others the Complainants have not come forward and did not cooperate in the investigation. The State of Chhattisgarh is committed to register an FIR and even hold investigation provided the Complainants cooperate in the investigation process. In any case at the F.I.R.s concerning incidents of 17.09.09 and 01.10.09 have been duly registered and investigations are going on. 25. to 27. The contents of paragraphs No. 25 & 26 of the writ petition are denied and this subject matter is already part of the writ petition filed before Hon'ble High Court of Chhattisgarh. 28.1 The contents of paragraph No. 28.1 of the writ petition are denied and incidents of 17.01.2009 and 01.10.2009 have already been dealt with in the preceding paragraphs. 28.2 & 28.3 The contents of paragraph No. 28.2 of the writ petition are vehemently denied. The FIRs have been registered and an investigation has been transferred to the C.I.D. in accordance with the recommendations of the NHRC in Nanda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .7 of the writ petition are vague and hence denied. 28.8 The contents of paragraph No. 28.8 of the writ petition are denied. It is respectfully submitted that word 'massacre' is misnomer. The State has not violated Articles 14, 19 and 21 of the Constitution of India. 21. We take notice of the fact that an affidavit-in-rejoinder has been filed, duly affirmed by the Petitioner No. 1, to the aforesaid reply filed by the State of Chhattisgarh. In the rejoinder, the Petitioner No. 1 has once again reiterated what has been stated in the writ petition. CoBRA 201 BATTALION: 22. An affidavit-in-reply has also been filed on behalf of the Respondent No. 3, duly affirmed by one Shri Dilip Kumar Kotia (201 CoBRA Bn.-SAF). Few relevant averments made in the reply are as under: "7(1) Regarding Gachanpalli murders: No civilian was killed or injured by the CoBRA/SAF troops. The killing of 02 years old child and 01 blind man of 70 years are denied. However, it is the known fact that naxalites often use civilians as human shield. It is further submitted that the CoBRA troops fired on provocation of naxalites in self defence and to defend themselves at Gachanpalli on 17/09/09 when they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th intention to stall and jeopardize the ongoing operations against them in their strong hold areas. (6) Regarding Gompada 'encounter' dated 1/10/09: On the basis of intelligence received from sources regarding presence of naxalites in the village of Gompad under the jurisdiction of PS Bheji on dated 30/09/09 special joint operation was planned involving party of SAF 201 Bn., Civil Police and SPOs. The party was given task to carry out cordon and search at Gompad Village. The troops were carrying man pack (bag containing various items of troops) and all the other logistic and administrative support items sufficient for 03 days duration. Accordingly, CoBRA/SAF troops comprising AC-02, SOs-04, Other Ranks-66, HC/RO-02 under the command of Shri Ravindra Singh Shekhawat, Asstt. Comdt. alongwith one ASI of civil police, 08 constable of civil police and 21 SPOs left from the base camp of PS Bheji on 30/09/09. When CoBRA/SAF troops were about 01 Km short of village Gompad at about 0630 hrs on 01/10/09 naxalites ambushed the troops and opened heavy fire. CoBRA/SAF troops had no other option and were forced to retaliate the fire which lasted for about 20 minutes and naxalites fled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he operation by 201 CoBRA(SAF) Bn. as alleged. Hence, this allegation against the Force personnel is false and denied. (12) Regarding presence of SPOs and Salwa Judum leader with security forces: Personnel of 201 CoBRA (SAF) did not conduct operation in Mukudtong village and hence no question of Salwa Judum leader accompanying them. However, CoBRA personnel carried out operation in Gomapada village on 1/10/09 alongwith civil police and SPOs. (13) Regarding forced displacement and terror: No houses were damaged/burnt by the Force personnel and no forcible displacement of villagers carried out. Hence, this allegation against Force personnel is totally false and denied. 8. In reply to para-8, it is submitted that no civilian was killed or tortured by the SAF 201 personnel and all the allegations against this Force are false and fabricated. It is the duty of the Paramilitary Force to step in aid of the people and not to harass them or to commit any activity derogatory to the human rights. In fact, the Force is operating at the risk of life of their personnel engaged in protecting life and property of the citizens. 9. In reply to para 9, it is submitted that the allegation is fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during which our personnel were ambushed by heavily armed naxalites and the personnel retaliated back in self defence. 18. In reply to para 18, it is submitted that 201 CoBRA (SAF) Bn. personnel did not kill villagers nor burnt their houses. However, on 17/9/09 201 CoBRA (SAF) Bn. personnel carried out operation in village Gachanpalli during which our personnel were ambushed by heavily armed naxalites and the personnel retaliated back in self defence. 19. In reply to para 19, it is submitted that 201 CoBRA (SAF) Bn. personnel did not kill villagers or burnt their houses. However, on 17/9/09 201 CoBRA (SAF) Bn. personnel carried out operation in village Gachanpalli during which our personnel were ambushed by heavily armed naxalites and the personnel retaliated back in self defence. 20. In reply to para 20, it is submitted that the allegation is false and denied. Although 201 CoBRA (SAF) had carried out operation in village Gompada on 1/10/09 but no such act was committed by SAF personnel. 21. In reply to para 21, it is submitted that one of the naxalites who was wearing a black naxal uniform and carrying a muzzle loading gun was killed in encounter with this Unit personnel a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigation already being conducted by the State police against the naxalites. Hence, the prayer deserves not to be entertained. b) It is most respectfully and humbly submitted that the consideration and/or granting the Petitioners' prayer for award of compensation to such naxalite who was in naxalite uniform as well as having muzzle loaded gun as killed by the 201 CoBRA/SAF Bn in village Singhanmadugu is totally misplaced and it is bonafide believed that Govt. funds i.e. the tax payers' hard earned money does not deserve to be spent for awarding compensation to those who have lost lives while being part of insurgent naxal acts which will in turn demoralize the Forces fighting naxalites whose duty is to protect the life and property of the people and to safeguard integrity and security of the country. Hence, this prayer of the Petitioners also deserves to be rejected. Hence, Writ Petition deserves to be dismissed with heavy cost on the Petitioners for having urged and alleged baseless, false and unsustainable allegations. 23. We also take notice of one further affidavit-in-reply filed on behalf of the Respondent No. 3, duly affirmed by Shri Barun Kumar Sahu, Director (Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visit of the Madavi Hurre to Delhi on 20.10.2009 is not proved at all. On the other hand it is also humbly stated that all the 10 Petitioners produced have not blamed the CRPF/COBRA (SAF) of any of the killing/atrocities as alleged by the Petitioner No. 1 in the writ petition. 3. In reply to the contents of para 3 to 8, I say that the Tehalka Magazine (7th November, 2009 at P/37) have published the photograph of a lady with a child in her lap. The magazine describes her to be resident of village Singanmadgu whereas she has been shown as resident of village: Ganchapalli now the Petitioner has also added that she is resident of Village Singanpalli/Singanmadgu. The contradiction in name of villages is apparent and hence unbelievable. The magazine has stated in this report that the incident had taken place on October 17, which is wrong and magazine have published it without verifying the facts which clearly shows that the main intention of the Petitioner is to malign the image of the security Forces, CRPF/COBRA (SAF) engaged in anti-naxal operations, it is also pertinent to mention here that the Petitioner has only mentioned names of persons who according to him met the lady and int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vealed that there is no such person by the name of Madvi Hurre in village Singanpalli/Singanmadgu. This is also confirmed by the Tehsildar, Konta Sub Division. A copy of report and certificate issued by the Tehsildar Konta, Sarpanch and Secretary of Burkalanka Gram Panchayat and Secretary Gram Panchayat Pentapar is collectively enclosed and as marked as Annexure R-1. There is no such person as per the voter's list of village Gacchanpalli and Singanmadgu. A copy of voters list of Village Ganchapalli and Singanmadgu are collectively enclosed herewith and the same is marked as Annexure R-2. 5. It is further submitted that further investigation and enquiries have revealed that the Petitioner No. 6 is Madvi Pojja is still in Andhra Pradesh. 6. It is submitted that a sum of Rs. 4,00,000/- has been sanctioned to be paid to the Petitioner No. 2 Soyam Rama vide Collector Dantewada order No. 752 dated 4.03.2010 as compensation for death of four members of his family. 7. It is submitted that a sum of Rs. 1,00,000/- has been sanctioned to be paid to the Petitioner No. 4 Madvi Hidma son of Madvi Podiya vide Collector Dantewada order No. 756 dated 4.03.2010 as compensation for death of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. An attempt has been made to mislead this Court. False allegations have been levelled on the police and the paramilitary forces with a mala fide intention to change the narrative of the incidents, i.e. to portray the dreaded Left Wing Extremists (Naxals), who were waging an armed rebellion against the security forces of the country and threatening the sovereignty and integrity of the country, as innocent tribal victims being massacred by the security forces. 26. It is the case of the Respondents that this false narrative of the massacre of innocent tribals by the security forces was created to somehow achieve immediate cessation of the advancement of the security forces against the concerned armed Left Wing Extremists. The purpose and motive of the present writ Petitioners was also to derail the ongoing efforts of the security forces in neutralizing the Left Wing Extremism movement and the armed Left Wing Extremists; to deprive the dignity and credibility of the security forces; to lower the morale of the security agencies by portraying them as demons and national villains, i.e. slayers of innocent tribal people; and to foist false cases on them so that in future such false cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Counsel would submit that the only hope is the CBI. 31. In such circumstances referred to above, Mr. Gonsalves prays that this Court may issue a mandamus directing the CBI to carry out the investigation of all the First Information Reports referred to above. SUBMISSIONS ON BEHALF OF THE RESPONDENTS: 32. Mr. Tushar Mehta, the learned Solicitor General appearing for the Union of India, on the other hand, has vehemently opposed the present writ petition. He would submit that the petition deserves to be rejected not only with exemplary costs, but each of the Petitioners should be held guilty of levelling false charges of offence and of giving false and fabricated evidence before this Court with an intention to procure conviction for a capital offence or for life imprisonment against the personnel of security forces with a view to screen off the actual offenders of the Left Wing (Naxal) terrorism. 33. Mr. Mehta would submit that if such palpably false and motivated writ petition at the instance of an NGO is entertained by this Court, then the same may lead to disastrous results as the very morale of the different police and paramilitary forces fighting against the Naxals would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry, State of Chhatisgarh is directed to ensure the compliance of this Order and submit his own report on or before 15th February, 2010. Pursuant to our directions the first Respondent produced six out of 13 Petitioners, namely, Shri Soyam Rama, Shri Kunjam Hidma, Shri Madavi Hidma, Shri Soyam Dulla, Smt. Muchki Sukri and Smt. Sodhi Sambo (Petitioner Nos. 2, 3, 4, 7, 8 and 13 respectively). We are informed that the six Petitioners who are produced before us today speak only 'Gondi language' and no other language. In the circumstances, it would not be possible for us even to elicit any information from them and interact with them. We are of the view that their security is a paramount consideration. It is equally important that they should be allowed to express themselves freely without being influenced by any outside agencies or individuals. In the circumstances, we consider it appropriate to request Mr. G.P. Mittal, District Judge-I, Tis Hazari, Delhi to record their statements in the presence of the interpreter, namely, Mohan Sinha, as well as the first Petitioner Mr. Himanshu Kumar, who is stated to be conversant with their language. The District Judge shall first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to above, Mr. Mehta prays that this writ petition may be rejected with exemplary costs and appropriate action may be taken against the writ Petitioners. SUBMISSIONS ON BEHALF OF THE STATE OF CHHATTISGARH: 40. Mr. Sumeer Sodhi, the learned Counsel appearing for the State of Chhattisgarh, has also vehemently opposed this writ petition. In a written note provided to us, Mr. Sodhi has highlighted in what manner the Chhattisgarh Police carried out the investigation of both the incidents and also the details as regards the registration of the FIRs. The same reads thus: Crime No.: 04/2009 Police Station: Bhejji Date of Registration: 18/09/2009 Sections: 147, 148, 149, 307 Indian Penal Code; 25, 27 Arms Act. Date of Incident: 17.09.2009. Complainant: Shri Ravindra Singh, Assistant Commdt. 201 Cobra Bn. Accused: Unknown Maoist Cadres and Sangam Members Allegations: On information about the presence of Naxal cadres, an anti-naxal operation was launched on 16.09.2009 from PS Bhejji towards Gachchanpalli, Aitrajpad and Entapad by the Security forces. Naxals made a life threatening attack on security forces near Gachchanpalli and run away putting their shelter on fire. G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncident: Approximately three-four months ago at 7.00 am in the morning from the date of incident, (therefore, probable incident here is 01.10.2009) Complainant: Shri Maadvi Hadma Address: Gachhanpalli (Petitioner No. 4) Accused: 20-25 Unknown uniformed person holding gun and banda. Absconding Accused- 1-Venktesh s/o. Unknown 2-Rajesh alias Joga s/o. Unknown 3-Vijay alias Vijay alias Ekanna 4-Savitri Bhai w/o. Unknown 5-Manila w/o. Unknown 6-Bhima s/o. Unknown 7-Jayram s/o. Unknown 8-Samita w/o. Chandrana 9-Bhaskar alias Rajesh s/o. Venkteshwerlu 10-Kavita D/o. jayram Allegations: On 21/02/2010 upon report of applicant Madvi Hadma, resident of Gachchanpalli, FIR No. 06/2010 Under Section 147, 148, 149, 302 Indian Penal Code & 25, 27 Arms Act was registered at Police Station Bhejji against unknown naxalites for murder of Madvi Hidma, Madvi Joga, Kawasi Ganga, Madkami Chula & Dudhi Muye. Gist of Final Report: Chargesheet filed on 09/09/2010 against 10 named absconding Accused Under Section 147, 148, 149, 302 Indian Penal Code; 25, 27 Arms Act. Present Status: Permanent warrant has been issued against the absconding Accused by the Hon'ble Judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 against 10 named absconding Accused Under Section 396, 397 Indian Penal Code; 25, 27 Arms Act. Present Status: Permanent warrant has been issued against the absconding Accused by the Hon'ble Judicial Magistrate First Class Konta. Crime No.: 07 2010 Police Station: Bhejji Date of Registration: 22/02/2010 Sections: 147, 148, 149, 302 Indian Penal Code, 25, 27 Arms Act. Date of Incident: A approximately five months ago in the morning from the date of incident, (therefore, probable incident here is 01.10.2009) Complainant: Shri. Komram Lachcha, Address-Chintagufa Accused: 20-25 Unknown uniformed person holding gun and banda. Absconding Accused- 1-Venktesh s/o. Unknown 2-Rajesh alias Joga s/o. Unknown 3-Vijay alias Vijay alias Ekanna 4-Savitri Bhai w/o. Unknown 5-Manila w/o. Unknown 6-Bhima s/o. Unknown 7-Jayram s/o. Unknown 8-Samita w/o. Chandrana 9-Bhaskar alias Rajesh s/o. Venkteshwerlu 10-Kavita D/o. Jayram Allegations: On 22/02/2010 upon report of applicant Komram Lachcha, resident of Chintagufa, FIR No. 07/2010 Under Section 147, 148, 149, 302 Indian Penal Code & 25, 27 Arms Act was registered at PS-Bhejji against unknown naxalites fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illed three years ago. 3. False narrative sought to be created in Petitioner's Written submissions- A plain reading of Paragraph 13 of the Written Submissions filed by the Petitioner creates a brutal impression of the security forces to the effect that Petitioner No. 13's two year old grandchild was killed after chopping off the child's fingers. The purported cyclostyle complaint of Petitioner No. 13 is at Page 53 whereas her statement recorded Under Orders of this Court can be found at Page 171 of the Paperbook. A perusal of both these documents reveals that no such case was ever made out by Sodhi Sambo i.e. Petitioner No. 13. 4. Non-corroboration of contents of Writ Petition with statements made by the Petitioners before District Judge appointed by this Court-- Looking at the seriousness of the allegations contained in the Writ Petition, which were vehemently denied by the State, this Court directed that statements of Petitioner Nos. 2-13 be recorded by a District Judge at New Delhi. A bare perusal of the statements made by the Petitioners reveal that none of the Petitioners corroborate the allegations made in the writ petition. Further the Petitioners do not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise 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 investigations. (emphasis supplied) 45. In the above decision, it was also pointed out that the same court in Secretary, Minor Irrigation & Rural Engineering Services, U.P. v. Sahngoo Ram Arya and Anr., (2002) 5 SCC 521, had said that an order directing an enquiry by the CBI should be passed only when the High Court, after considering the material on record, comes to the conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency. 46. In an appropriate case when the Court feels that the investigation by the police authorities is not in a proper direction, and in order to do complete justice in the case and if high police officials are involved in the alleged crime, the Court may be justified in such circumstances to handover the investigation to an independent agency like the CBI. By now it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instil confidence in the public mind, or where investigation by the State police lacks credibility and it is necessary for having "a fair, honest and complete investigation", and particularly, when it is imperative to retain public confidence in the impartial working of the State agencies. ... 49. Elaborating on this principle, this Court further observed: 17. ... the Court could exercise its constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency like CBI only in rare and exceptional cases. Such as where high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to instil confidence in the investigation or where the investigation is prima facie found to be tainted/biased. 50. The Court reiterated that an investigation may be transferred to the CBI only in "rare and exceptional cases". One factor t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are really taken by surprise that the learned Senior Counsel appearing for the writ Petitioners is absolutely oblivious of the fact that all the FIRs were investigated by the concerned investigating agencies and, at the end of the investigation, charge sheets came to be filed in different courts of the State of Chhattisgarh for the offences under the Indian Penal Code like murder, dacoity, etc. 56. We are of the view, having regard to the materials on record, that no case, worth the name for further investigation or re-investigation, could also be said to have been made out. 57. The filing of the charge sheets at the conclusion of the investigation into the various FIRs referred to above would indicate that the alleged massacre was at the end of the Naxalites (Maoists). The materials collected in the form of the charge sheets substantiate the case put up by the Respondents that the villagers were attacked and killed by the Naxalites. There is not an iota of material figuring in the investigation on the basis of which even a finger can be pointed towards the members of the police force. 58. If we go by the tenor of the writ petition, it gives an impression that proper investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that I shall be talking to each of the Petitioners. Except the Petitioners, all the persons including the counsel were requested to move out of the court room. I got down from the dias and talked to the Petitioners through Petitioner No. 1 Himanshu Kumar. I tried to make Petitioners comfortable and served them with tea and biscuits. I have enquired from them if there was any fear or pressure from any quarter which they have negatived. I have told the Petitioners present that I would be calling them one by one for the purpose of recording their statements in the adjoining Room No. 302 in Tis Hazari Court. In the first instance, Petitioner No. 2 Shri Soyam Rama has been called. Apart from the abovenamed Counsel for the parties, Petitioner No. 1 Shri Himanshu Kumar and interpreter Shri Mohan Sinha have also been called in room No. 302. Petitioner No. 2 has been made to sit in the middle of the Petitioner No. 1 and Shri Mohan Sinha, the interpreters. Let statement of Sh. Soyam Rama be recorded. Question: What is your name? Ans.: My name is Soyam Rama Question: Where do you stay? Ans. I am resident of village Gompad. Q. Do you have any proof of identity: Ans. I do not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... want to say anything further. Left thumb impression of Soyam Rama Sd/- District Judge-I/Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; D.J.,-1/15-2-2010 G.P. MITTAL &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the persons named as Accused in the charge sheets are absconding, then it is expected of the investigating agency to take necessary steps for their arrest. In any view of the matter, it is now for the trial court to do the needful in accordance with law. 65. In the overall view of the matter, we have reached to the conclusion that no case, worth the name, has been made out by the writ Petitioners for any further investigation much less through an independent agency to be appointed by this Court. In the facts of the above case, we are of the view that the conditions laid down by this Court in the case of Committee for Protection of Democratic Rights, West Bengal (supra) quoted earlier are not fulfilled. 66. The writ petition accordingly fails and is hereby rejected with exemplary costs of Rs. 5,00,000/- (Rupees Five Lakh Only). The requisite amount towards the costs shall be paid by the Petitioner No. 1 viz. Himanshu Kumar. The Petitioner No. 1 shall deposit the amount with the Supreme Court Legal Services Authority within a period of 4 weeks from today; failing which, it shall be open for the authority concerned to take appropriate steps in accordance with law for the recovery o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 1 has affirmed the false averments made in the writ petition on oath. He could be said to have made a false affidavit. The making of false affidavit and giving false evidence comes within the purview of Section 191 of the Indian Penal Code. 71. Before we proceed to examine this application filed by the Union of India, we must look into few averments made therein: 4. Shockingly, in the petition, the Petitioner had portrayed the incidents of 17.9.2009 and 1.10.2009, as an act of not restricted to extra judicial killings, but had sought to portray such acts as act of barbarianism committed by security forces, where the special operation teams of police and paramilitary forces were alleged to have indulged into torturing, looting and outraging the modesty of family members of those encountered. The Petitioners had, thus, on affidavit, narrated incidents alleging it to be gruesome killings and massacres of innocent tribal villagers on 17.9.2009 and 1.10.2009, in the petition. It is pertinent to mention here that the acts of torture and killings of the villagers have been pleaded to be of such beastly and horrific nature, so as to invoke and instigate an instantaneous response of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of advancement of the security forces against the cornered armed Left Wing Extremists. The said object was sought to be achieved, and was in fact achieved by the Petitioner, by misleading this Hon'ble Court and by seeking adverse orders against security forces by portraying false facts/picture before the court and by playing fraud on this Hon'ble Court. 12. In addition to the same the purpose and motive of the present petition was also to derail the ongoing efforts of security forces in neutralizing the Left Wing Extremism movement and the armed Left Wing Extremists; to take away the dignity and credibility of security forces and the attempts made by them to neutralize the armed rebellion by Left Wing Extremists; to lower the moral of the security agencies by portraying them as demons and national villains, i.e. slayers of innocent tribal people; and to foist false cases on them so that in future the said false cases acts as a deterrent and chilling factor for the rest of the members of the armed forces in planning or participating in a similar operations. It is submitted that all this was done before the highest court of the country and at the altar of the national secur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of such accusations leading to a resigned acceptance of such blemishes as an incident of duty. Such an environment for the functioning of security apparatus in any country is extremely undesirable and in fact dangerous for the security of the nation and its people. The trust reposed by the society in the police and other security personal is coveted and necessary for the smooth functioning of any administration. The law enforcement machinery is not and cannot appear to be blemished. Moreover, it is also a fact that wherever any such machinery is found to be indulging in illegal or irregular activities, this Hon'ble Court and other courts have been prompt and undeterred in taking action against such personal. However, there is an expedient and urgent need to guard against irresponsible, unjustified and by far, brazen false accusations against the security personal. POSITION OF LAW: Indian Penal Code Section 191. Giving false evidence.--Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Court, or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate. Section 340. Procedure in cases mentioned in Section 195.-- (1) When upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in Clause (b) of Sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,- (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having jurisdiction; (d) take sufficient security for the appearance for the Accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the Accused in custody to such Magistrate; and (e) bind over any person to appear and given evidence before such Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court. An order of the High Court made Under Sub-section (1) or Sub-section (2) of Section 340 is specifically excluded for the purpose of appeal to the superior court Under Section 341(1), Code of Criminal Procedure (new). This is, therefore, a new restriction in the way of the Appellant when he approaches this Court Under Article 136 of the Constitution. 20. Whether, suo motu, or on an application by a party Under Section 340(1), Code of Criminal Procedure, a court having been already seized of a matter may be tentatively of opinion that further action against some party or witness may be necessary in the interest of justice. In a proceeding Under Section 340(1), Code of Criminal Procedure, the reasons recorded in the principal case, in which a false statement has been made, have a great bearing and indeed action is taken having regard to the overall opinion formed by the court in the earlier proceedings. 21. At an enquiry held by the court Under Section 340(1), Code of Criminal Procedure, irrespective of the result of the main case, the only question is whether a prima facie case is made out which, if unrebutted, may have a reasonable likelihood to establish the specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g proceedings has been laid down in several of our judgments. Thus in Chajoo Ram v. Radhey Shyam, (1971) 1 SCC 774, this Court, in para 7, stated as under: 7. ... No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge. 76. Similarly in Chandrapal Singh and Ors. v. Maharaj Singh and Anr. (1982) 1 SCC 466, this Court, in para 14, stated as under: 14. That leaves for our consideration the alleged offence Under Section 199. Section 199 provides punishment for making a false statement in a declaration which is by law receivable in evidence. We will assume that the affidavits f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts in the rent control proceedings and has now rushed to the criminal court. This itself speaks volumes. Add to this the fact that another suit between the parties was pending from 1975. The conclusion is inescapable that invoking the jurisdiction of the criminal court in this background is an abuse of the process of law and the High Court rather glossed over this important fact while declining to exercise its power Under Section 482, Code of Criminal Procedure. 77. Both the aforesaid judgments were referred to and relied upon with approval in R.S. Sujatha v. State of Karnataka and Ors. (2011) 5 SCC 689. This Court, after setting down the law laid down in these two judgments concluded: 18. Thus, from the above, it is evident that the inquiry/contempt proceedings should be initiated by the court in exceptional circumstances where the court is of the opinion that perjury has been committed by a party deliberately to have some beneficial order from the court. There must be grounds of a nature higher than mere surmise or suspicion for initiating such proceedings. There must be distinct evidence of the commission of an offence by such a person as mere suspicion cannot bring home the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court should be satisfied that there is a reasonable foundation for the charge. 16. In a series of decisions, this Court held that the enquiry/contempt proceedings should be initiated by the court in exceptional circumstances where the court is of the opinion that perjury has been committed by a party deliberately to have some beneficial order from the court. There must be grounds of a nature higher than mere surmise or suspicion for initiating such proceedings. There must be distinct evidence of the commission of an offence by such a person as mere suspicion cannot bring home the charge of making false statement, more so, the court has to determine as on facts whether it is expedient in the interest of justice to enquire into offence which appears to have been committed. 81. Section 340 of the Code of Criminal Procedure came up for the consideration before a three-Judge Bench of this Court in the case of Pritish v. State of Maharashtra, (2002) 1 SCC 253. In Pritish (supra), this Court was called upon to consider, whether it is mandatory on the part of the court to make a preliminary inquiry Under Section 340 of the Code of Criminal Procedure before filing a complaint Under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the inquiry to be conducted by the Magistrate. Once the court which forms an opinion, whether it is after conducting the preliminary inquiry or not, that it is expedient in the interest of justice that an inquiry should be made into any offence the said court has to make a complaint in writing to the Magistrate of the First Class concerned. As the offences involved are all falling within the purview of "warrant case" [as defined in Section 2(x)] of the Code the Magistrate concerned has to follow the procedure prescribed in Chapter XIX of the Code. In this context we may point out that Section 343 of the Code specifies that the Magistrate to whom the complaint is made Under Section 340 shall proceed to deal with the case as if it were instituted on a police report. That being the position, the Magistrate on receiving the complaint shall proceed Under Section 238 to 243 of the Code. 11. Section 238 of the Code says that the Magistrate shall at the outset satisfy himself that copies of all the relevant documents have been supplied to the Accused. Section 239 enjoins on the Magistrate to consider the complaint and the documents sent with it. He may also make such examination of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to making the complaint. There are other provisions in the Code for reaching conclusions whether a person should be arrayed as Accused in criminal proceedings or not, but in most of those proceedings there is no legal obligation cast on the court or the authorities concerned, to afford an opportunity of hearing to the would-be Accused. In any event the Appellant has already availed of the opportunity of the provisions of Section 341 of the Code by filing the appeal before the High Court as stated earlier. x x x x 18. We are unable to agree with the said view of the learned Single Judge as the same was taken under the impression that a decision to order inquiry into the offence itself would prima facie amount to holding him, if not guilty, very near to a finding of his guilt. We have pointed out earlier that the purpose of conducting preliminary inquiry is not for that purpose at all. The would-be Accused is not necessary for the court to decide the question of expediency in the interest of justice that an inquiry should be held. We have come across decisions of some other High Courts which held the view that the persons against whom proceedings were instituted have no such r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nary investigation report by the investigating officer filed only two days after the F.I.R. is lodged, can in no circumstances be regarded as unimpeachable evidence contrary to the statements that have been made in the anticipatory bail application. ... (emphasis supplied) 84. However, in the subsequent decision in the case of Sharad Pawar v. Jagmohan Dalmiya, (2010) 15 SCC 290, while dealing with a similar question as above, a three-Judge Bench of this Court went on to observe as follows: 7. Having heard the learned Senior Counsel for both sides and after perusal of the record, we are of the considered view that before giving a direction to file complaint against Defendants 1 to 6, it was necessary for the learned Single Judge to conduct a preliminary enquiry as contemplated Under Section 340 Code of Criminal Procedure and also to afford an opportunity of being heard to the Defendants, which was admittedly not done. 8. We, therefore, in the interest of justice, allow these appeals, set aside the impugned order of the High Court passed in the application filed by Respondent 1-Plaintiff Under Section 340 Code of Criminal Procedure and remit the matter to the learned Single Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 mandates a preliminary inquiry and an opportunity of hearing to the would-be Accused before a complaint is made Under Section 195 of the Code by a Court? 14.2(ii) What is the scope and ambit of such preliminary inquiry? 87. It appears that the reference on the aforesaid two questions to a larger Bench is still pending. 88. However, we do not intend to dwell upon any further in the aforesaid context i.e. whether it would be expedient in the interests of justice to proceed against the writ Petitioners for perjury. We are saying so as we do not want to precipitate this issue any further. We have said in so many words that this is a very serious matter as it relates directly to the security of the nation. 89. In the aforesaid context, we have something else in mind. We propose to look into Section 211 of the Indian Penal Code. Section 211 of the Indian Penal Code is extracted hereunder: Section 211. False charge of offence made with intent to injure.--Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Criminal Procedure) "or he may" lay a charge, or as the Code calls it, a complaint (Section 190 Code of Criminal Procedure) before a Magistrate". 92. We are referring to Section 211 of the Indian Penal Code as above keeping in mind the fact that the first information reports lodged by the writ Petitioners at the different police stations were investigated and at the end of the investigation, the investigating agency reached to the conclusion that the police force had no role to play, rather Naxals were responsible for the massacre. Prima facie, it could be said that false information was given by the first informants to the police as regards the alleged massacre by the police force. 93. The essential to be satiated in order to attract the offence Under Section 211 of the Indian Penal Code was elucidated by this Court in Santokh Singh and Ors. v. Izhar Hussan and Anr., (1973) 2 SCC 406. The relevant paragraph is extracted hereinunder: 10. ... This Section as its marginal note indicates renders punishable false charge of offence with intent to injure. The essential ingredient of an offence Under Section 211 Indian Penal Code is to institute or cause to be instituted any crimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titute false criminal proceedings assume false charge but false charge may be preferred even when no criminal proceedings result. Now, the expression "falsely charges" in this section, in our opinion, cannot mean giving false evidence as a prosecution witness against an Accused person during the course of a criminal trial. "To falsely charge" must refer to the original or initial accusation putting or seeking to put in motion the machinery of criminal investigation and not when seeking to prove the false charge by making deposition in support of the charge framed in that trial. The words "falsely charges" have to be, read along with the expression "institution of criminal proceeding". Both these expressions, being susceptible of analogous meaning should be understood to have been used in their cognate sense. They get as it were their colour and content from each other. They seem to have been used in a technical sense as commonly understood in our criminal law. The false charge must, therefore, be made initially to a person in authority or to someone who is in a position to get the offender punished by appropriate proceedings. In other words, it must be' embodied either in a com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there should be a proceeding in any court; and (3) that the allegation should be that the offence Under Section 211 was committed in, or in relation to, such a proceeding. Unless all the three ingredients exist, the bar Under Section 195(1)(b) against taking cognizance by the Magistrate, except on a complaint in writing of a court, will not come into operation. In the present case also, therefore, we have to see whether all these three ingredients were in existence at the time when the Judicial Magistrate at Chandigarh proceeded to take cognizance of the charge Under Section 211 Indian Penal Code against the Appellant. 11. There is, of course, no doubt that in the complaint before the Magistrate a charge Under Section 211 Indian Penal Code, against the Appellant was included, so that the first ingredient clearly existed. The question on which the decision in the present cases hinges is whether it can be held that any proceeding in any court existed when that Magistrate took cognizance. If any proceeding in any court existed and the offence Under Section 211 Indian Penal Code, in the complaint filed before him was alleged to have been committed in such a proceeding, or in relation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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