TMI Blog2022 (7) TMI 1469X X X X Extracts X X X X X X X X Extracts X X X X ..... st whom a complaint is filed before a Magistrate for initiating prosecution proceedings. This Court took the view that an opportunity to the would be Accused before the filing of the complaint was not mandatory, and observed that the preliminary inquiry was itself not mandatory. In M.S. SHERIFF VERSUS THE STATE OF MADRAS AND OTHERS [ 1954 (3) TMI 76 - SUPREME COURT ], a Constitution Bench of this Court said that no expression on the guilt or innocence of persons should be made by court while passing an order Under Section 340 of Code of Criminal Procedure. An exercise at that stage is not for finding whether any offence was committed or who committed the same. The scope is confined to see whether the court could then decide on the materials available that the matter requires inquiry by a criminal court and that it is expedient in the interest of justice to have it inquired into. This decision of the Constitution Bench has also been followed in Pritish observing that the court, when decides to make a complaint Under Section 340, is not to record finding of guilt or innocence of person against whom complaint is to be made before a Magistrate. The essential ingredients for i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion; (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 notify a Special Investigation Team (SIT) headed by Shri Sankar Sen (IPS) Dr. K.S. Subramanian, IPS and Mr. Rajneesh Rai, DIG and such other officers as the SIT may deem necessary with additional directions for the proper functioning of the SIT as given by the Supreme Court in the case of NHRC v. State of Gujarat (2009) 6 SCC 342, 767). (b) Order directing the State of Chhattisgarh to produce Petitioners 2-12 at Delhi and hand them over to Dr. Mohini Giri, Chairperson, Guild for Services, 'Shubham', C-25, Qutab Institutional Area, New Delhi; (c) Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 writ petition, the information as regards the relationship between the Petitioners Nos. 2 to 13 respectively and the deceased has been furnished as under: Petitioner No. Relation with the deceased Village of the deceased Name of deceased Date of Killings 2 Soyam Rama Paternal Uncle Paternal Aunt Niece Niece Nephew Gompad Gompad Gompad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 6 7 01 PS-Bhejji Dt. - 18.09.2009 Crime No. 04/2009 Sec.- 147, 148, 149, 307 IPC, 25, 27 Arms Act. Shri Ravindra Singh, Assistant Commndt. 201 Cobra Bn. Unknown Maoist Cadres and Sangam Members. On information about the presence of Naxal cadres, an anti naxal operation was launched on 16.9.2009 from PS Bhejji towards Gachchanpalli, Aitrajpad and Entapad by the Security forces. The Maoists made an attempt to kill the Sfs by Gun-fire, failing so, ran away burning their hideouts. According to the Investigating Officer, even after a long search, no accused were found and on no possibility of finding the accused in near future, the closure report was forwarded on 20.10.2010 to the learned CJM, Dantewada having jurisdiction. The closure report was accepted on 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief Judicial Magistrate, Dantewada. 04 PS-Bhejji Dt. - 08.01.2010 Crime No. 01/2010 Sec.- 396, 397 IPC, 25, 27 Arms Act. Shri Soyam Rama Add. Gompad Unknown Armed Uniformed persons 20- 25. 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 08.01.2010 on information of applicant Soyam Rama s/o Soyam Kanna resident Gompad village, a FIR-01/2010 under sec.396, 397 IPC, 25, 27 Arms Act was registered in PS Bhejji and taken into investigation against unknown Naxalites causing murder of 7 deceased named Madvi Bazar, Madvi Subbi, Madvi Mutti, Kattam Kanni, Madvi Enka, Soyam Subba and Soyam Jogi. Charge sheet filed on 09.09.2010 against 10 named absconding accused u/sec. 396, 397 IPC, 25, 27 Arms Act. Permanent Non-Bailable Warrant has been issued against the accused by the Hon ble Judicial Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers are here before this Court with the present writ petition seeking relief of investigation of all the FIRs through the CBI. The Petitioners also seek compensation from the Government for the alleged atrocities and massacre. STANCE OF THE STATE OF CHHATTISGARH: 20. The State of Chhattisgarh has refuted all the allegations levelled in the memorandum of the writ petition by filing counter-affidavit duly affirmed through one Shri Vimal Kumar Bais, Deputy Superintendent of Police, Headquarter-Dantewada, Chhattisgarh, dated 4th February 2010. The affidavit minutely deals with all the incidents referred to by the Petitioners in the memorandum of the writ petition. We quote the same as under: 5. That the State of Chhattisgarh is facing menace of Naxalism which has been termed as a number one security threat to nation's integrity and sovereignty by the Hon'ble Prime Minister of India. The State Police with help of paramilitary forces have to tackle the Naxalism and most of the organizations concerning Naxalite movements have also been banned. The State of Chhattisgarh has lost precious life of its personnel while defending the State. In last two years, the security ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere shot dead. Thus precious lives of police personnel were lost in the cross-fire and the firing continued till 08:00 PM on 18.09.2009. Further enforcement of police personnel were also sought. An FIR No. 10/2009 was also registered by P.S. Chintagupha on 20.09.2009. The case was later on shifted to C.I.D. for further investigation in accordance with the recommendations of the NHRC in Nandini Sunder's case. One dead body of Madavi Deva was identified who died during the cross fire between the Naxalites and the Police. It would be relevant to mention that S.P. Office have received complaints of Madavi Hidma S/o. Madavi Kosa, Kawasi Kosa son of late Kawasi Ganga, Madkam Muke wife of Markam Chula, Madavi Raza son of Madavi Joga, all belonging to Gachanpalli. The nature of complaints is full of suspicion because all the complaints are in same format and typed in same manner, giving arise to suspicion that certain organizations sympathetic to Naxalites or Naxalite-oriented organizations are behind the lodging of such complaints. These complaints are being investigated and veracity of those complaints are doubtful as they are in fixed format and typed in same manner. In any way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dversely commented upon by the Petitioner No. 1 before this Hon'ble Court. Crime No. 05/2009 Under Section 147, 148, 149, 307 Indian Penal Code and Section 27 (sic 25)/27 of Arms Act has been registered on the report of Security Forces whereas Crime No. 01/2010 Under Section 396, 397 Indian Penal Code has been registered in this regard as per the enquiry based on application made by Soyam Rama. The case is now investigated by C.I.D. in accordance with the recommendation of NHRC in Nandini Sunder's case. 2. The contents of paragraph No. 2 of the writ petition are vehemently denied. It would be evident that the aforesaid two incidents of 17.09.2009 and one incident of 01.10.2009 have also brought untold misery and deprivation of police personnel and several police personnel have lost their lives. The contents of paragraph No. 2 about alleged massacre is completely misleading and truth of the matter is mat Petitioner No. 1 after the Naxalite incident has instigated villagers to lodge complaints. It is denied that a woman had her breast cut-off and two year old infant was brutally murdered. Similarly it is also denied that blind man of 70 years old was executed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegation of certain persons being 'tied' and paraded Is concerned, it is maintained that when security forces reached to the village Gachanpalli, after repulsing the attack, no one was found and everybody had fled to the jungle. It is the Naxalites who are unleashing terror and the blame is put on the State. It is reiterated that the entire efforts seems to eulogize the Naxalite movement and to bring every effort to curtail Naxalism in poor light. The incident of 01.10.2009 has been explained in detail in the preceding paragraphs and the facts stated in the paragraph under Reply are totally distorted and far from truth. As regards allegation of 8 arrested and two missing, it could be said that an FIR No. 27/2009 dated 02.10.2009, P.S. Konta, has been registered which is relatable to attack by Naxalites on security forces in the jungle of Nulkatong on 01.10.2009. In above incident, two dead bodies were recovered and eight people had been arrested. The two dead bodies were brought to P.S. Konta and inquest by Executive Magistrate and post-mortem report was made as per provisions of law. The alleged killings at Chintagufa (the other one than that of Siganpalli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... village Belpocha is situated only 14 kms from P.S. Konta but the Complainant did not report the matter at P.S. Konta. It is strange that killing of his son Kunjam Hurra was not reported to the police, even though the village Dhondhara is situated nearby. The village men of Dhondhara Sarpanch Markam Krishana, former Sarpanch Markam Sitaram, Punam Naraiya were interrogated about the alleged incident. They refused to have any knowledge about the incident. Thus no evidence was found and the complaint was found to be false after discreet enquiry. 16. In response to the contents of paragraph No. 16 of the writ petition, it is submitted that an enquiry report was submitted by S.D.O.P., Konta in which it is stated that S.D.O.P. Konta tried to contact the Complainant at village Nulkatong on 09.11.2009 but no one was found in the village. It is relevant to mention that the two dead bodies of unknown naxals were brought to P.S. Konta and an inquest was also prepared by the Executive Magistrate. Nobody had turned up for identification of dead bodies for almost three days. An FIR No. 27/2009 Under Section 147, 148, 149, 307 Indian Penal Code read with Section 25 27 of Arms Act have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplainants or the Petitioners come forward then the State would readily record their statements and even register separate FIRs apart from the FIRs registered by the Police so far. 28.4 The contents of paragraph No. 28.4 of the writ petition are denied because the investigation is done in the proper manner and there is no apparent irregularity or omission in the investigation which would warrant investigation by the CBI. In any case, whether an investigation could be made by CBI at the direction of the Hon'ble Court is pending consideration before the Constitution Bench. 28.5 The contents of paragraph No. 28.5 of the writ petition are vehemently denied. The police has duly registered the FIRs and investigation is conducted in accordance with the NHRC recommendations in Nandini Sunder's case. It is the Naxals who have attacked the posse of policemen and this allegation of 'massacre' is invoked for misleading this Hon'ble Court. 28.6 The contents of paragraph No. 28.6 of the writ petition are denied. The Complainants are in touch with the Petitioner No. 1 and the State of Chhattisgarh reiterates that if the Complainants come forward then their state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 10/2009 dated 20/9/2009 Under Section 307, 395, 397 of Indian Penal Code, Sections 25/ 27 Arms Act and Sections 3, 4 of Explosives Act was also lodged with PS Chintagufa (Dantewada) about the incident. It is to mention here that if the said person was Madavi Deva of Singhanpalli village then he was definitely a naxalite and not an innocent civilian. It is further mentioned here that during the course of unearthing the Arms factory of naxalites and returning back our troops were ambushed by the naxalites near village Singhanmadugu where 06 brave commandos of CoBRA/SAF have lost their precious lives and body of those martyrs recovered only on 19/09/09 morning. The troops of CoBRA/SAF had no option except to retaliate which lasted for about one and a half hour. (3) Regarding Burnt in hot oil: The troops of CoBRA Bn./CRPF had neither conducted any operation at village Ondherpara nor committed any act as alleged. Hence, the allegation against this Force is totally false and frivolous. (4) Regarding Tying and parading: The allegation against the Force personnel is totally false as no person was apprehended or arrested during the operation. (5) Regarding Force displacemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l affected and dominant villages destroying and unearthing the Arms factory of the naxalites, the naxalites have lost the ground and baffled. And this strong action of the CoBRA/SAF Bn was highly appreciated and published in the local newspapers. Hence, the Petitioners in connivance with the naxalites have falsely alleged against the local police and SAF 201 to stall the operations against naxalities with well thought out nefarious designs. (7) Regarding more killings: Neither our Force carried out any operations at Chintagufa on 01/10/2009 nor killed or injured any innocent civilians. The allegation is false. Hence, allegation is vehemently denied. (8) Regarding travails of a 2 years old: No civilian or child was bodily harmed/tortured by Force personnel during the operations. The allegation against CoBRA/SAF Force is totally false and fabricated. Hence, vehemently denied. (9) Regarding 8 arrested and 2 missing: Force of this 201 CoBRA/SAF Unit was neither deployed for operational duty in Mukundtong and Junitong villages nor they have committed any such act mentioned in allegation. Hence, vehemently denied. (10) Regarding looting and burning of property and hou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the naxalites in Gachanpalli and the troops retaliated in self defence. This allegation against 201 CoBRA (SAF) Bn. is false and baseless and hence denied. 12. In reply to para 12, it is submitted that the allegation is false as no such act was committed by 201 CoBRA (SAF) Bn. and hence denied. 13. In reply to para 13, it is submitted that the allegations are totally false as no such act was committed by 201 CoBRA (SAF) Bn. and hence denied. 14. In reply to para 14, it is submitted that the allegation is totally false as no such acts were committed by 201 CoBRA (SAF) Bn. No person was beaten, stabbed or killed by the Force personnel. No property was looted or burnt. However, the vagueness or truthfulness of the allegations leveled in the petition is borne out by the fact that the name and number of the Petitioner given in the para does not tally with the list of Petitioners in the cause title of the Writ Petition. 15. In reply to para 15, it is submitted that the allegation is totally false as no such act was committed by 201 CoBRA (SAF) Bn. However, the name and number of the Petitioner given in the para does not tally with the list of Petitioners in the writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para 22, it is submitted that naxalite cadres have been often wearing security force uniform to terrorize the masses to defame the security forces and demoralize them and as such the allegation is false and denied. 23. In reply to para 23, it is submitted that 201 CoBRA (SAF) troops did not carry out any operation in village Onderpara. Hence, the allegation is denied. 24. No comments are offered in reply to para 24. 25. In reply to para 25, it is submitted that CRPF is not involved in any incident as alleged and hence denied. 26. In reply to para 26, it is submitted that this point does not pertain to CRPF/SAF Unit. Hence, the allegation is denied. 27. In reply to para 27, it is submitted that this point does not pertain to this CRPF/SAF Unit. Hence, the allegation is denied. REPLY ON GROUNDS: 28. 28.1: In reply to para 28.1, it is submitted that the grounds made by the Petitioners are false and fabricated because none of the act mentioned in the Writ Petition have been committed by the troops of this SAF/CRPF unit. However, being a specialized armed force of the union, the troops are deployed to enforce the law of the land and to protect the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is trying to prove the existence of the Petitioner in question. The magazine or newspaper are not the primary evidence or authentic proof of any material or fact and have no exclusive evidentiary value. Hence, the production of copies of the pages of Tehalka magazine are inadmissible and same are opposed. Also that the Petitioner No. 1 has been trying since the very beginning to blame the security Forces, fighting with naxalities, with the imaginary charge of atrocities/arsons which they have miserably failed in proving and also trying to unnecessary lengthen the litigation by putting up various miscellaneous applications without any relevance to the case. The manner in which false allegations have been made from time to time against the security forces is a matter of record. The whole attempt is to demoralize the security forces by tarnishing their image and shaking their confidence. It is also pertinent to mention here that the authenticity of Tehalka magazine, which the Petitioner is relying upon cannot believed as the dates mentioned in magazine are not correct. PARAWISE REPLY: 1. The contents of para 1 need no comments. 2. The reply to the contents of para 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the CRPF/COBRA (SAF) personnel for any of the atrocities committed as alleged in the writ petition. A copy of the list of applications made by Petitioner No. 1 Shri Pushkar Raj is enclosed herewith as Annexure-A/1. It is also pertinent to mention here that on 06.04.2010, in an incident, the naxalites have killed 75 CRPF personnel. The death of 75 CRPF personnel and one civil police personnel on 6/4/2010 clearly indicates the menace of naxalism in State of Chhattisgarh and the troops are engaged to fight naxalism to protect the integrity and in fact the very existence of the democratic system. Now the Petitioner with his interviews to various electronic media channels like NDTV India through its various discussion forunis has tried to malign the image of the CRPF/COBRA (SAF) by blaming them whereas the matter is subjudice before the Hon'ble Supreme Court, hence, the Petitioner himself had taken up the role of Judge in this matter, which clearly shows the intentions of the Petitioner No. 1 in the matter. 24. We may now look into the affidavit duly affirmed by Shri Rajesh Kukreja, Additional Superintendent of Police, Headquarter Dantewada, Chhattisgarh. In this affid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that a sum of Rs. One lakh has been sanctioned to be paid to the family member (Dudhi Bhima) of Petitioner No. 6 vide Collector Dantewada order No. 756 dated 4.03.2010 towards compensation for death of his cousin brother of his family. 10. It is submitted that a sum of Rs. Two lakh has been sanctioned to be paid to the Petitioner No. 7 vide Collector Dantewada order No. 752 dated 4.03.2010 as compensation for death of two members of his family. 11. It is submitted that compensation has not been paid to Petitioner No. 3 8 since investigation is being carried out. 12. It Is submitted that a sum of Rs. 1,00,000/- has been sanctioned to be paid to the Petitioner No. 10 (Madavi Raja) vide Collector--Dantewada Order No. 756 dated 04.03.2010. 13. It is submitted that a sum of Rs. 1,00,000/- has been sanctioned to be paid to the Petitioner No. 11-Smt. Madkam Muke vide Collector-Dantewada Order No. 756 dated 04.03.2010. 14. It is submitted that a sum of Rs. 1,00,000/- has been sanctioned to be paid to the Petitioner No. 12--Shri Kowasi Kosa vide Collector-Dantewada Order No. 756 dated 04.03.2010. 15. It is submitted that a sum of Rs. 10,000/- has been san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the investigation has not been carried out. The filing of the charge sheets is prima facie material to put the Accused persons named therein on trial. The charge sheets filed against the Accused persons named therein bear eloquent testimony to the fact that the allegations levelled against the police and paramilitary forces are absolutely false and reckless. 28. The Petitioners have miserably failed to point out as to in what manner the investigation carried out could be said to be perfunctory. Without even studying the charge sheets how can it be asserted on their part that nothing has been done by the investigating agencies. Even for the purpose of making out a case for further investigation, the infirmities in the charge sheets must be pointed out to the satisfaction of the Court. Nothing of that sort has been pointed out to this Court. SUBMISSIONS ON BEHALF OF THE WRIT PETITIONERS: 29. Mr. Colin Gonsalves, the learned Senior Counsel appearing for the Petitioners, vehemently submitted that the alleged brutal incidents of killing of the tribals should be investigated through the CBI. He would submit that the family members of the Petitioners were killed in cold-blood ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als. It is at the instigation of the Petitioner No. 1 that they might have thought fit to join as the Petitioners. 35. Mr. Mehta would submit that this petition is of the year 2009. Almost 13 years have passed by till this date. However, it is very shocking to know that none of the Petitioners have any idea about the investigation which has already been carried out by the police with respect to each of the FIRs. 36. Mr. Mehta invited the attention of this Court to one order passed by a Coordinate Bench dated 15th February 2010. The same reads thus: ORDER The Chief Secretary, in terms of our directions, has filed his Report, which shall form part of the record and to be put in a sealed cover. On 8.2.2010, after hearing the parties, we have issued the following directions: Learned Senior Counsel appearing on behalf of the Petitioners submits that after the adjournment of this Writ Petition on 5th February, 2010 Petitioner Nos. 2 to 13 were illegally taken into custody or caused their disappearance by the Respondent-police. Learned Counsel appearing for the State of Chhatisgarh seriously disputes the correctness of the assertion made by the learned Senior Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted before us that in terms of the directions to be issued by the District Judge, the Union of India shall ensure their safety and protection. We also permit the learned Counsel for the Petitioner Shri Colin Gonsalves or any other lawyer to be nominated by him to be present in the proceedings before the District Judge along with counsel for the Union of India and the counsel for the State of Chhatisgarh. We make it very clear that the District Judge shall proceed to record the statement only after being satisfied to himself that the persons produced before him are free from any pressure and are capable of making statement freely without being influenced by any of the outside agency/parties. The learned District Judge is requested to arrange for a videography of the entire proceedings. The Registrar Judicial will immediately convey this order to the District Judge. Copy of this order shall also be given to the counsel for all the parties. List this matter tomorrow at 1-15 p.m. in Court for further directions. 37. According to Mr. Mehta, in context with the aforesaid order, various statements of the Petitioners came to be recorded by the District Judge-I and Sessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n near future closure report is accepted on 26.10.2010 by the learned chief Judicial Magistrate. Crime No.: 10/2009: Police Station: Chintagufa Date of Registration: 20/09/2009 Sections: 395, 397, 147, 148, 149, 302 Indian Penal Code; 25, 27 Arms Act; 3, 4 Explosive. Subs. Act. Date of Incident: 17.09.2009 and 18.09.2009. Complainant: Shri Premprakash Awadhiya, Sub Inspector, PS.-Sukma Accused: Unknown Uniformed female and male naxalites about 200-300. Allegations: 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 were seen and exchange of fire took place. After encounter in search of the place of incident weapons and a body of naxal was recovered. Then after a while one km ahead 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etails of the FIRs are: Crime No.: 05/2009 Police Station: Bhejji Date of Registration: 25/11/2009 Sections: 147, 148, 149, 307 Indian Penal Code; 25, 27 Arms Act. Date of Incident: 01.10.2009. Complainant: Shri Matram Bariha, Head Constable, PS.-Bhejji Accused: Unknown Uniformed Naxalites in large numbers. Allegations: On the information of increased activities and camps of armed naxalites in Gompad village PS Bhejji, three teams of Cobra 201 Bn departed on an anti naxal operation on 30/09/2009 from injram. On 01.10.2009 this combined party was ambushed by Naxalites in Gompad. Gist of Final Report: According to the investigating officer, even after a long search no Accused were found and on no possibility of finding in near future closure report is filed before the Hon'ble court on 20.10.2010 Present Status: According to the closure report presented by the investigating officer, even after a long search no Accused were found and on no possibility of finding in near future closure report is accepted on 26.10.2010 by the learned Chief Judicial Magistrate. Crime No.: 01/2010 Police Station: Bhejji Date of Regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Magistrate First Class Konta. 41. Mr. Sodhi also highlighted the following contradictions and anomalies in the case of the Petitioners: 1. Hot oil theory retracted: Petitioner claimed in the Writ Petition at Page E of the Synopsis and Page 9 of the Petition Paper book that one Muchki Deva (60yrs) of Ondhepara was grazing cattle on the morning of 17th September. He was caught, beaten and dragged into the village by security forces. He was hanged upside down from a tree and a pot of oil was lit below and he was dropped into it. As a result, the upper part of his body was severely burnt and he had developed maggots in his wounds. However, thereafter the Petitioners filed an Application before this Hon'ble Court dated 02.02.2010 bearing Crl. M.P. No. 3173/2010 seeking directions from this Hon'ble Court. In the said Application, the Petitioners retracted the Hot Oil Theory in Paragraph 18 of the Application stating that it was a mistake that took place during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be made to the Statements-Page 154 onwards 5. No Affidavit of authorisation of Petitioners No. 2 to 13 It is pertinent to note that the present petition has been filed by the Petitioner No. 1 (Himanshu Kumar) on behalf of Petitioner No. 2 to 13. However, there is no affidavit on record whereby Petitioners No. 2 to 13 have authorised Petitioner No. 1. 42. In such circumstances referred to above, Mr. Sodhi prays that there being no merit in the present writ petition, the same may be rejected with exemplary costs and appropriate actions against each of the writ Petitioners for misleading the Court and fabricating false evidence. ANALYSIS: 43. Having heard the learned Counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is, whether any case has been made out by the writ Petitioners for the investigation of the two incidents through the CBI. POSITION OF LAW: 44. It is now settled law that if a citizen, who is a de facto complainant in a criminal case alleging commission of cognizable offence affecting violation of his legal or fundamental rights against high Government o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he filing of the charge sheet the court is empowered in an appropriate case to handover the investigation to an independent agency like the CBI. 47. The extraordinary power of the Constitutional Courts Under Articles 32 and 226 respectively of the Constitution of India qua the issuance of directions to the CBI to conduct investigation must be exercised with great caution as underlined by this Court in the case of Committee for Protection of Democratic Rights, West Bengal (supra) as adverted to herein above, observing that although no inflexible guidelines can be laid down in this regard, yet it was highlighted that such an order cannot be passed as a matter of routine or merely because the parties have levelled some allegations against the local police and can be invoked in exceptional situations where it becomes necessary to provide credibility and instill confidence in the investigation or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice and for enforcing the fundamental rights. We are conscious of the fact that though a satisfaction of want of proper, fair, impartial and effective investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der is that such transfer is imperative to retain public confidence in the impartial working of the State agencies. This observation must be read with the observations made by the Constitution Bench in the case of Committee for Protection of Democratic Rights, West Bengal (supra), that mere allegations against the police do not constitute a sufficient basis to transfer the investigation. 51. In Romila Thapar v. Union of India, (2018) 10 SCC 753, one of us, A.M. Khanwilkar, J., speaking for a three-Judge Bench of this Court (Dr. D.Y. Chandrachud, J. dissenting) noted the dictum in a line of precedents laying down the principle that the Accused does not have a say in the matter of appointment of investigating agency . In reiterating this principle, this Court relied upon its earlier decisions in Narmada Bai v. State of Gujarat, (2011) 5 SCC 79, Sanjiv Rajendra Bhatt v. Union of India, (2016) 1 SCC 1, E. Sivakumar v. Union of India, (2018) 7 SCC 365, and Divine Retreat Centre v. State of Kerala, (2008) 3 SCC 542. This Court observed: 30...the consistent view of this Court is that the Accused cannot ask for changing the investigating agency or to do investigation in a parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is not being done and, therefore, the same should be handed over to the CBI. However, the fact is that the investigation has already been carried out and charge sheets have been filed. Unfortunately, neither the learned Senior Counsel appearing for the writ Petitioners nor any of the writ Petitioners, more particularly, the writ Petitioner No. 1, the protagonist behind the filing of the present writ petition, running an NGO, has any idea about the charge sheets and the materials collected in the course of the investigation. If the investigation has already been carried out and charge sheets have been filed and if the court has to now consider the plea of the writ Petitioners, then the same would become a case of further investigation. 59. We shall highlight as to why we are saying so as above. We come back to the order passed by a Coordinate Bench of this Court dated 15th February 2010. Pursuant to the same, the statements of the Petitioners were recorded by the District and Sessions Judge, Delhi. We may quote one such statement recorded by the District and Sessions Judge of the Petitioner No. 2, namely, Soyam Rama. We quote the entire statement as under: Present: Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have any proof of identity: Ans. I do not have one. Q. Do you know for what purpose you have been brought here? A. The persons from our family have died and therefore, I have come. Q. Has anybody put any pressure upon you to make any particular statement? Has anybody terrorized you? Ans. Nobody has pressurized or terrorized me. Q. Do you want to make a statement of your own free will? A. Yes. (I am satisfied that Shri Soyam Rama is not under any pressure coercion or terror to make the statement.) I feel that the statement being made by him is out of his free will. Let the statement be recorded on oath. The oath be also administered to both the interpreters. Statement of Shri Soyam Rama s/o. Shri Soyam Kanna, aged 38 years r/o. village Gopade, on S.A. (through interpreter Shri Mohan Sinha, in presence of Petitioner Himanshu Kumar. Both the interpreters have also stated on oath that whatever shall be asked from the witness and his answers shall be interpreted correctly truly). On. 1.10.2009, there was a firing in the house of my paternal uncle Madhvi Bajaar. In the firing, my paternal uncle Madvi Bajaar and paternal aunt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITTAL District Judge-I Sessions Judge Sd/- (Mohan Sinha) (emphasis supplied) 60. All other statements of the rest of the writ Petitioners are on the same line and footing. 61. When we called upon Mr. Gonsalves to make us understand as to why his clients had to make such statements before the Judicial Officer, a very curious reply came from Mr. Gonsalves. According to Mr. Gonsalves, the entire mode and manner in which the statements were recorded by the Judicial Officer of the rank of District and Sessions Judge was absolutely incorrect. According to the learned Senior Counsel, specific questions ought to have been put by the Judicial Officer to each of the writ Petitioners while recording their statements in accordance with the directions issued by this Court vide order dated 15th February 2010 referred to above. 62. We are afraid, we are not in a position to accept such submission after a period of almost 12 years. The statements we are referring to recorded by the Judicial Officer are of the year 2010. Not once in the last 12 years any grievance has been mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of. INTERLOCUTORY APPLICATION NO. 52290 OF 2022 67. This is an application at the instance of the Union of India with the following prayers: (a) Hold the Petitioners guilty of leveling false charges of offence and of giving false and fabricated evidence before this Hon'ble Court with an intention to procure conviction for a capital offence or for life imprisonment against the personnel of security forces and to screen off the actual offenders of Left Wing (Naxal) terrorism; (b) Pass an order directing CBI/NIA or any other central investigating agency or any other monitoring committee, as this Hon'ble Court deems fit and proper, to register an FIR and conduct an in-depth investigation to identify the individuals/organizations, who have been conspiring, abetting and facilitating filing of petitions premised on false and fabricated evidence before this Hon'ble Court as well as before the Hon'ble High Courts with a motive to either deter the security agencies to act against the Left Wing (Naxal) militia by imputing false charges on them or to screen off the Left Wing (Naxal) militia from being brought to justice by creating a false narrative of victim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undeniably leading to grant of relief/interim relief as prayed in the petition. In pith and substance, the reliefs prayed were of the nature where operations of security forces were sought to be halted and Left Wing Extremists were sought to be granted legal protection under the narrative of victimization. 8. It is respectfully submitted that a bare perusal of the recordings etc. submitted by the Ld. District Judge before this Hon'ble Court reveals that all the averments made by the Petitioner in the petition were ex-facie false and fabricated and it is now clear that all the said deceitful averments were made by the Petitioner with malicious and audacious attempt to mislead this Hon'ble court and to obtain orders from this Court by playing fraud on its conscience and magnanimity. 9. In the respectful submission of the applicant, it is apparent that the said insolent false averments were made with a malafide objective to change the narrative of the incident and with malicious designs 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a fraud played on the constitutional remedies and an abuse thereof of the highest order. 13. In effect in the respectful submission of the applicant/UOI, it is now also apparent that the present ex-facie false and fraudulent petition was filed to deceit this Hon'ble court and to provide a legal protective shield to the members of Left Wing Extremist outfits. In the respectful submission of the applicant the present petition is nothing but a subterfuge and a part of the conspiracy to cover the offence committed by the Left Wing Extremists and to facilitate unhindered future operations by weakening the security forces which is the only challenge deterring their intentions and operations. The Petitioners, in the respectful submission of the applicant, by preferring the instant deceitful petition, have not only conspired and abetted the commissioning of the crime but have also conspired and abetted in covering up the crime and screening the offenders/perpetrators of Left Wing (Naxal) terrorism. 14. It is submitted that scurrilous allegations made against the security personnel of the country have nevertheless has brought about a chilling effect of demoralizing the esp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ieves to be false or does not believe to be true, is said to give false evidence. Section 192. Fabricating false evidence.--Whoever causes any circumstance to exist or makes any false entry in any book or record, or electronic record or makes any document containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said to to fabricate false evidence . Section 193. Punishment for false evidence.-Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, and whoever intentionally gives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any person to appear and given evidence before such Magistrate; (2) The power conferred on a Court by Sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint Under Sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of Sub-section (4) of Section 195. (3) A complaint made under this Section shall be signed,- (a) where the Court making the complaint is a High Court, by such officer of the Court as the court may appoint; (b) in any other case, by the presiding officer of the court or by such officer of the Court as the Court may authorise in writing in this behalf. (4) In this section, Court has the same meaning as in Section 195. 72. Thus, from the above, it follows that there are two conditions, on fulfillment of which, a complaint can be filed against a person who has given a false affidavit or evidence in a proceeding before a court. The first condition being that a person has given a false affidavit in a proceeding before the court and, secondly, in the opinion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out which, if unrebutted, may have a reasonable likelihood to establish the specified offence and whether it is also expedient in the interest of justice to take such action. 74. In Baban Singh and Anr. v. Jagdish Singh and Ors. reported in AIR 1967 SC 68, this Court observed the following in paragraph 7 as under: 7. The matter has to be considered from three stand points. Does the swearing of the false affidavits amount to an offence Under Section 199, Indian Penal Code or under either Sections 191 or 192, Indian Penal Code? If it comes under the two latter sections, the present prosecution cannot be sustained, Section 199 deals with a declaration and does not state that the declaration must be on oath. The only condition necessary is that the declaration must be capable of being used as evidence and which any Court of justice or any public servant or other person, is bound or authorized by law to receive as evidence. Section 191 deals with evidence on oath and Section 192 with fabricating false evidence. If we consider this matter from the standpoint of Section 191, Indian Penal Code the offence is constituted by swearing falsely when one is bound by oath to state the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement in a declaration which is by law receivable in evidence. We will assume that the affidavits filed in a proceeding for allotment of premises before the Rent Control Officer are receivable as evidence. It is complained that certain averments in these affidavits are false though no specific averment is singled out for this purpose in the complaint. When it is alleged that a false statement has been made in a declaration which is receivable as evidence in any Court of Justice or before any public servant or other person, the statement alleged to be false has to be set out and its alleged falsity with reference to the truth found in some document has to be referred to pointing out that the two situations cannot co-exist, both being attributable to the same person and, therefore, one to his knowledge must be false. Rival contentions set out in affidavits accepted or rejected by courts with reference to onus probandi do not furnish foundation for a charge Under Section 199, Indian Penal Code To illustrate the point, Appellant-1 Chandrapal Singh alleged that he was in possession of one room forming part of premises No. 385/2. The learned Additional District Judge after scrutinisin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distinct evidence of the commission of an offence by such a person as mere suspicion cannot bring home the charge of perjury. More so, the court has also to determine as on facts, whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed. 78. It is clear through from a reading of the aforesaid judgments that there should be something deliberate-a statement should be made deliberately and consciously which is found to be false as a result of comparing it with unimpeachable evidence, documentary or otherwise. 79. It is true that an affidavit is 'evidence' within the meaning of Section 191 of the Indian Penal Code and a person swearing to a false affidavit is guilty of perjury. But the matter does not rest here. Before initiating the proceedings for perjury, the court concerned has to consider whether it would be expedient in the interest of justice to sanction such prosecution. What the courts have to see at this stage is whether there is evidence in support of the allegations made by the Union of India (Respondent herein) to justify the initiation of proceedings against the writ Petitioners, more particularly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt to make a preliminary inquiry Under Section 340 of the Code of Criminal Procedure before filing a complaint Under Section 195 of the Code of Criminal Procedure and further, whether the court is required to afford an opportunity of hearing to the person against whom a complaint is filed before a Magistrate for initiating prosecution proceedings. This Court took the view that an opportunity to the would be Accused before the filing of the complaint was not mandatory, and observed that the preliminary inquiry was itself not mandatory. The Court observed thus: 9. Reading of the Sub-section makes it clear that the hub of this provision is formation of an opinion by the court (before which proceedings were to be held) that it is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed. In order to form such opinion the court is empowered to hold a preliminary inquiry. It is not peremptory that such preliminary inquiry should be held. Even without such preliminary inquiry the court can form such an opinion when it appears to the court that an offence has been committed in relation to a proceeding in that court. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 239 enjoins on the Magistrate to consider the complaint and the documents sent with it. He may also make such examination of the Accused, as he thinks necessary. Then the Magistrate has to hear both the prosecution and the Accused to consider whether the allegations against the Accused are groundless. If he finds the allegations to be groundless he has to discharge the Accused at that stage by recording his reasons thereof. Section 240 of the Code says that if the Magistrate is of opinion, in the aforesaid inquiry, that there is ground for presuming that the Accused has committed the offence he has to frame a charge in writing against the Accused. Such charge shall then be read and explained to the Accused and he shall be asked whether he pleads guilty of the offence charged or not. If he pleads not guilty then the Magistrate has to proceed to conduct the trial. Until then the inquiry continues before the Magistrate. 12. Thus, the person against whom the complaint is made has a legal right to be heard whether he should be tried for the offence or not, but such a legal right is envisaged only when the Magistrate calls the Accused to appear before him. The person concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 right to participate in the preliminary inquiry (vide M. Muthuswamy v. Special Police Establishment [1985 Cri. LJ 420 (Mad)]). (emphasis supplied) 82. In M.S. Sheriff and Anr. v. State of Madras and Ors. AIR 1954 SC 397, a Constitution Bench of this Court said that no expression on the guilt or innocence of persons should be made by court while passing an order Under Section 340 of Code of Criminal Procedure. An exercise at that stage is not for finding whether any offence was committed or who committed the same. The scope is confined to see whether the court could then decide on the materials available that the matter requires inquiry by a criminal court and that it is expedient in the interest of justice to have it inquired into. This decision of the Constitution Bench has also been followed in Pritish (supra) observing that the court, when decides to make a complaint Under Section 340, is not to record finding of guilt or innocence of person against whom complaint is to be made before a Magistrate. 83. We may also ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned 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 Judge to decide the application Under Section 340 Code of Criminal Procedure afresh in accordance with law, and after affording reasonable opportunity of being heard to the Defendants, against whom the learned Single Judge ordered enquiry. 85. Later, the judgment in Pritish (supra) came to be relied upon by a two Judges Bench of this Court in Amarsang Nathaji (supra). While dealing with the propriety of the procedure adopted by the court making a complaint Under Section 340 of the Code of Criminal Procedure, the Bench in Amarsang Nathaji observed as follows: 7. In the process of formation of opinion by the court that it is expedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been committed. It is open to the court to hold a preliminary inquiry though it is not mandatory. In case, the court is otherwise in a position to form such an opinion, that it appears to the court that an of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use 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 or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; and if such criminal proceeding be instituted on a false charge of an offence punishable with death, [imprisonment for life], or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 90. The essential ingredients for invoking Section 211, Indian Penal Code are that the complaint must have falsely charged a person with having committed an offence. The complainant, at the time of giving the complaint must have known that there is no just or lawful ground for making a charge against the person. This complaint must have been given with an intention to cause injury to a person. 91. The Code of Criminal Procedure does not define what constitutes the making of a char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ginal 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 criminal proceeding against a person with intent to cause him injury or with similar intent to falsely charge any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge. Instituting or causing to institute false criminal proceedings assume false charge but false charge may be preferred even when no criminal proceedings result. It is frankly conceded by Shri Kohli that the Appellant cannot be said to have instituted any criminal proceeding against any person. So that part of Section 211 Indian Penal Code is eliminated. 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 speaking to prove the false charge by making deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 complaint or in a report of a cognizable offence to the police officer or to an officer having authority over the person against whom the allegations are made. The statement in order to constitute the charges should be made with the intention and object of setting criminal law in motion. 95. Thus, we leave it to the State of Chhattisgarh/CBI (Central Bureau of Investigation) to take appropriate steps in accordance with law as discussed above in reference to the assertions made in the interim application. We clarify that it shall not be limited only to the offence Under Section 211 of the Indian Penal Code. A case of criminal conspiracy or any other offence under the Indian Penal Code may also surface. We may not be understood of having expressed any final opinion on such action/proceedings. We leave it to the better discretion of the State of Chhattisgarh/CBI to act accordingly keeping in mind the seriousness of the entire issue. Thus, the relief prayed for in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to any such proceeding, the Magistrate would have been barred from taking cognizance of the offence. On the other hand, if there was no proceeding in any court at all in which, or in relation to which, the offence Under Section 211 could have been alleged to have been committed, this provision barring cognizance would not be attracted at all. 12. In this case, as we have already indicated when enumerating the facts, the complaint of which cognizance was taken by the Judicial Magistrate at Chandigarh was filed on April 11, 1959 and at that stage, the only proceeding that was going on was investigation by the police on the basis of the First Information Report lodged by the Appellant before the Inspector-General of Police on December 10, 1958. There is no mention at all that there was, at that stage, any proceeding in any court in respect of that FIR When examining the question whether there is any proceeding in any court, there are three situations that c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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