Jakia Nasim Ahesan & Anr vs State Of Gujarat & Ors

CRIMINAL APPEAL NO. 1765 OF 2011

(ARISING OUT OF S.L.P. (CRL.) NO. 1088 OF 2008)

JAKIA NASIM AHESAN & ANR. -- APPELLANTS

VERSUS

STATE OF GUJARAT & ORS. -- RESPONDENTS

O R D E R

1. Leave granted.

2. This appeal by special leave, arises out of the judgment dated 2nd

November, 2007, delivered by the High Court of Gujarat at

Ahmedabad in Special Criminal Application No. 421 of 2007,

dismissing the writ petition preferred by one of the hapless victims of

the abominable and woeful events which took place in the State of

Gujarat between February, 2002 and May, 2002 after the abhorrent

Godhra incident on 27th February, 2002. By the said petition under

Article 226 of the Constitution of India read with Section 482 of the

Code of Criminal Procedure, 1973 (for short "the Code"), the

appellant had sought for a direction to the Director General of Police,

State of Gujarat, to register her private complaint dated 8th June, 2006

as a First Information Report and direct investigation therein by an

independent agency. By the impugned judgment, the High Court has

come to the conclusion that since a remedy under Section 190 read

with Section 200 of the Code was available to the appellant, the writ

petition was not tenable. The writ petition was accordingly dismissed

by the High Court with the observation that if the appellant had got

certain additional material against some persons accused in her

complaint, it was open to her to approach the investigating agency,

requesting further investigation, or, alternatively she could herself

approach the Court concerned for further investigation in terms of

Section 173(8) of the Code.

3. The appellant lost her husband, a former Member of Parliament, in the

calamitous events which took place on 28th February, 2002, in the

surroundings of Gulberg Society, Ahmedabad, where the appellant

resided along with her family. An FIR relating to the incident was

registered by the Police with Meghaninagar Police Station,

Ahmedabad. After investigation, on the filing of the charge-sheet, the

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case was committed to the Court of Sessions, Ahmedabad. It was the

case of the appellant that subsequently she received certain material

which showed that the incidents which took place during the period

between 27th February, 2002 and 10th May, 2002, were aided,

abetted and conspired by some responsible persons in power, in

connivance with the State Administration, including the Police. The

appellant thus sought registration of another FIR against certain

persons named in the complaint, dated 8th June, 2006, for offences

punishable under Section 302 read with Section 120B as also under

Section 193 read with Sections 114, 186 & 153A, 186, 187 of the

Indian Penal Code, 1860. However, as the police declined to take

cognizance of her complaint, the appellant filed the aforementioned

petition before the High Court. Having failed to convince the High

Court that it was a fit case for investigation by an independent agency,

the appellant-complainant, supported by an NGO, is before us in this

appeal.

4. On 3rd March, 2008 while issuing notice to the Union of India and

State of Gujarat, an Amicus Curiae was appointed to assist the Court.

Vide order dated 27th April, 2009, the Special Investigation Team (for

short "the SIT"), which had been constituted vide order dated 26th

March, 2008 to carry out further investigations in nine cases, subject

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matter of Writ Petition No. 109 of 2003, was directed `to look into',

the complaint submitted by the appellant on 8th June, 2006 to the

Director General of Police, Gujarat. Pursuant to the said direction

Shri A.K. Malhotra, former D.I.G. (C.B.I.) and one of the members of

the SIT, examined a number of witnesses and looked into a large

number of documents made available to him. A report, dated 12th

May, 2010, was submitted to this Court by the Chairman, SIT,

concurring with the findings of Shri A.K. Malhotra.

5. In his report dated 12th May, 2010, Shri A.K. Malhotra, inter alia

recommended further investigation under Section 173(8) of the Code

against certain Police officials and a Minister in the State Cabinet.

Consequently, further investigation was conducted and a report dated

17th November, 2010, was submitted by the SIT. On 23rd November,

2010, Shri Raju Ramachandran, Senior Advocate and Shri Gaurav

Agarwal, Advocate, replaced the previous Amicus Curiae, who had

expressed his unwillingness to continue.

6. On 20th January, 2011, a preliminary note was submitted by Shri Raju

Ramachandran, the learned Amicus Curiae; whereon, vide order dated

15th March, 2011, the SIT was directed to submit its report, and if

necessary carry out further investigation in light of the observations

made in the said note. The SIT conducted further investigation under

4 Section 173(8) of the Code in Meghaninagar Police Station Crime

Report No.67 of 2002--Gulberg Society case, and submitted a report

on 24th April, 2011. After examining the said report, on 5th May,

2011, the following order was passed :

"Pursuant to our order dated 15th March, 2011, the

Chairman, Special Investigation Team (SIT) has

filed report on the further investigations carried out

by his team along with his remarks thereon.

Statements of witnesses as also the documents

have been placed on record in separate volumes.

Let a copy of all these documents along with the

report of the Chairman be supplied to Mr. Raju

Ramachandran, the learned Amicus Curiae.

The learned Amicus Curiae shall examine the

report; analyze and have his own independent

assessment of the statements of the witnesses

recorded by the SIT and submit his comments

thereon. It will be open to the learned Amicus

Curiae to interact with any of the witnesses, who

have been examined by the SIT, including the

police officers, as he may deem fit.

If the learned Amicus Curiae forms an opinion that

on the basis of the material on record, any offence

is made out against any person, he shall mention

the same in his report."

7. The learned Amicus Curiae has now submitted his final report dated

25th July, 2011. In light of the above conspectus and the report of the

learned Amicus Curiae, the question for determination is the future

course of action in the matter.

5 8. We are of the opinion that bearing in mind the scheme of Chapter XII

of the Code, once the investigation has been conducted and completed

by the SIT, in terms of the orders passed by this Court from time to

time, there is no course available in law, save and except to forward

the final report under Section 173 (2) of the Code to the Court

empowered to take cognizance of the offence alleged. As observed by

a three-Judge Bench of this Court in M.C. Mehta (Taj Corridor

Scam) Vs. Union of India & Ors.1, in cases monitored by this Court,

it is concerned with ensuring proper and honest performance of its

duty by the investigating agency and not with the merits of the

accusations in investigation, which are to be determined at the trial on

the filing of the charge-sheet in the competent Court, according to the

ordinary procedure prescribed by law.

9. Accordingly, we direct the Chairman, SIT to forward a final report,

along with the entire material collected by the SIT, to the Court which

had taken cognizance of Crime Report No.67 of 2002, as required

under Section 173(2) of the Code. Before submission of its report, it

will be open to the SIT to obtain from the Amicus Curiae copies of his

reports submitted to this Court. The said Court will deal with the

matter in accordance with law relating to the trial of the accused,

named in the report/charge-sheet, including matters falling within the

1 (2007) 1 SCC 110

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ambit and scope of Section 173(8) of the Code. However, at this

juncture, we deem it necessary to emphasise that if for any stated

reason the SIT opines in its report, to be submitted in terms of this

order, that there is no sufficient evidence or reasonable grounds for

proceeding against any person named in the complaint, dated 8th June

2006, before taking a final decision on such `closure' report, the

Court shall issue notice to the complainant and make available to her

copies of the statements of the witnesses, other related documents and

the investigation report strictly in accordance with law as enunciated

by this Court in Bhagwant Singh Vs. Commissioner of Police &

Anr.2. For the sake of ready reference, we may note that in the said

decision, it has been held that in a case where the Magistrate to whom

a report is forwarded under Section 173(2)(i) of the Code, decides not

to take cognizance of the offence and to drop the proceedings or takes

a view that there is no sufficient ground for proceeding against some

of the persons mentioned in the FIR, the Magistrate must give notice

to the informant and provide him an opportunity to be heard at the

time of consideration of the report.

10.Having so directed, the next question is whether this Court should

continue to monitor the case any further. The legal position on the

point is made clear by this Court in Union of India & Ors. Vs. Sushil

2 (1985) 2 SCC 537

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Kumar Modi & Ors.3, wherein, relying on the decision in Vineet

Narain & Ors. Vs. Union of India & Anr.4, a Bench of three learned

Judges had observed thus :

"...that once a charge-sheet is filed in the

competent court after completion of the

investigation, the process of monitoring by this

Court for the purpose of making the CBI and other

investigative agencies concerned perform their

function of investigating into the offences

concerned comes to an end; and thereafter it is

only the court in which the charge-sheet is filed

which is to deal with all matters relating to the trial

of the accused, including matters falling within the

scope of Section 173(8) of the Code of Criminal

Procedure. We make this observation only to

reiterate this clear position in law so that no doubts

in any quarter may survive."

11.In M.C. Mehta Vs. Union of India & Ors.5, a question arose as to

whether after the submission of the final report by the CBI in the

Court of Special Judge, pursuant to this Court's directions, this Court

should examine the legality and validity of CBI's action in seeking a

sanction under Section 197 of the Code for the prosecution of some of

the persons named in the final report. Dismissing the application

moved by the learned Amicus Curiae seeking directions in this behalf,

a three-Judge Bench, of which one of us (D.K. Jain, J.) was a member,

observed thus:

3 (1998) 8 SCC 661

4 (1996) 2 SCC 199

5 (2008) 1 SCC 407

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"The jurisdiction of the Court to issue a writ of

continuous mandamus is only to see that proper

investigation is carried out. Once the Court

satisfies itself that a proper investigation has been

carried out, it would not venture to take over the

functions of the Magistrate or pass any order

which would interfere with his judicial functions.

Constitutional scheme of this country envisages

dispute resolution mechanism by an independent

and impartial tribunal. No authority, save and

except a superior court in the hierarchy of

judiciary, can issue any direction which otherwise

takes away the discretionary jurisdiction of any

court of law. Once a final report has been filed in

terms of sub-section (1) of Section 173 of the Code

of Criminal Procedure, it is the Magistrate and

Magistrate alone who can take appropriate

decision in the matter one way or the other. If he

errs while passing a judicial order, the same may

be a subject-matter of appeal or judicial review.

There may be a possibility of the prosecuting

agencies not approaching the higher forum against

an order passed by the learned Magistrate, but the

same by itself would not confer a jurisdiction on

this Court to step in."

12.Recently, similar views have been echoed by this Court in Narmada

Bai Vs. State of Gujarat & Ors.6. In that case, dealing with the

question of further monitoring in a case upon submission of a report

by the C.B.I. to this Court, on the conclusion of the investigation,

referring to the earlier decisions in Vineet Narain (supra), Sushil

Kumar Modi (supra) and M.C. Mehta (Taj Corridor Scam) (supra),

6 (2011) 5 SCC 79

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speaking for the Bench, one of us, (P. Sathasivam, J.) has observed as

under :

"70. The above decisions make it clear that though

this Court is competent to entrust the investigation

to any independent agency, once the investigating

agency complete their function of investigating

into the offences, it is the court in which the

charge-sheet is filed which is to deal with all

matters relating to the trial of the accused

including matters falling within the scope of

Section 173(8) of the Code. Thus, generally, this

Court may not require further monitoring of the

case/investigation. However, we make it clear that

if any of the parties including CBI require any

further direction, they are free to approach this

Court by way of an application."

13. Deferentially concurring with the dictum of this Court in the

aforenoted decisions, we are of the opinion that in the instant case we

have reached a stage where the process of monitoring of the case must

come to an end. It would neither be desirable nor advisable to retain

further seisin over this case. We dispose of this appeal accordingly.

14.Before parting, we direct the State of Gujarat to reimburse to Shri

Raju Ramachandran, all the expenses borne by him for travel from

Delhi to Ahmedabad and back. We also place on record our deep

appreciation for the able assistance rendered to us by Shri Raju

Ramachandran and Shri Gaurav Agarwal, the learned Amicus Curiae.

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(D.K. JAIN, J.)

............................................

(P. SATHASIVAM, J.)

.............................................

(AFTAB ALAM, J.)

NEW DELHI;

SEPTEMBER 12, 2011.

ARS

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