Narmada Bai vs State Of Gujarat & Ors

Narmada Bai .... Petitioner(s)

Versus

State of Gujarat & Ors. .... Respondent(s)

J U D G M E N T

P. Sathasivam, J.

1) Narmada Bai-the petitioner herein, mother of Tulsiram

Prajapati-the deceased, who, according to her, was killed on

27/28.12.2006 in a fake encounter by respondent Nos. 6 to

19, who are the officials of Gujarat and Rajasthan Police,

somewhere on the road going from Ambalimal to Sarhad

Chhapri, has filed the above writ petition under Article 32 of

the Constitution of India praying for issuance of a writ of

mandamus or in the nature thereof or any other writ, order or

direction directing the Central Bureau of Investigation (in

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short `the CBI') to register a First Information Report (in short

`FIR') and investigate into the fake encounter killing of her son

and submit its report to this Court. In the same petition, she

also prayed for compensation for the killing of her son in a

fake encounter thereby causing gross violation of Articles 21

and 22 of the Constitution.

2) Case of the Writ Petitioner:-

a) According to the petitioner, she is 55 years old illiterate

widow. Her younger son had been done away by respondent

Nos. 6-19 in a fake encounter with the ulterior intent to shield

themselves in the investigation emanating under the directions

of this Court in the case of Rubabbuddin Sheikh vs. State of

Gujarat & Ors., (2010) 2 SCC 200. She came to know

through local persons about the fake encounter and killing of

Sohrabuddin and his wife Kausarbi and the directions of this

Court in that case. On being informed about the said

incident, she approached this Court for directions to register

an FIR into the fake encounter killing of her son Tulsiram

Prajapati and investigation by an independent agency, like the

CBI and for submission of its report to this Court for further

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action. According to the petitioner, the fake encounter killing

of her son is directly connected to the case of Sohrabuddin

and his wife Kausarbi as he would have been a material

witness to the said killings.

(b) It is further stated that her son Tulsiram Prajapati while

lodged in Central Jail, Udaipur, had addressed a letter dated

11.05.2006 to the Collector, Udaipur informing him about the

life threatening attack carried out on him in Udaipur Central

Jail on 25.03.2006, when he was beaten up with iron rods and

lathis by co-prisoners. He expressly wrote that there was

conspiracy to kill him along with two others and also named

the persons who were behind the conspiracy and requested

that incident be investigated and his life be protected.

Thereafter, on 18.05.2006, the deceased also addressed a

letter to the Chairman, National Human Rights Commission

(in short `NHRC') alleging that there was conspiracy among the

police officials of Gujarat, Rajasthan, Maharashtra, etc. to do

away with him in a fake encounter by cooking up a false story

of running away from custody. In the said letter, the deceased

specifically requested that his security be ensured whenever

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he is taken on remand. In the same letter, he also mentioned

that the Gujarat Crime Branch and Anti Terrorist Squad (in

short `ATS') were very notorious for staging fake encounters.

The NHRC acknowledged the receipt of the said letter and

forwarded a copy to the Superintendent of Police, Udaipur,

Rajasthan vide letter dated 22.06.2006.

(c) Thus from March 2006, the deceased had been

expressing serious apprehensions and threat to his life at the

hands of the police. The deceased had reasons to believe that

Mr. Dinesh Kumar, Superintendent of Police, respondent No.8,

had taken a huge sum of money from the Marble traders and

dealers in Rajasthan with the assurance that he would do

away with him in a fake encounter. Before he being

interrogated by Ms. Geeta Johri, an officer investigating the

matter of fake encounter killing of Sohrabuddin and his wife

Kausarbi, in the night intervening 27/28 December, 2006,

Tulsiram Prajapati was done away in a fake encounter by

respondent Nos. 6-19.

(d) Quoting from certain newspaper reports, more

particularly, the Times of India dated 29.12.2006, the

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petitioner has alleged that her son was being escorted by

Udaipur (Rajasthan) Police from Ahmedabad to Udaipur in a

train. When the train was passing through Himatnagar-

Shymlaji Stretch, the deceased sought permission to go to the

toilet. The policemen escorted him to the toilet where two of

his accomplices disguised as passengers attacked the

policemen by throwing chilli powder in their eyes. When the

policemen called for the other members of the escort party, the

goons fired at them and jumped off the moving train. In

response, the police opened fire but the accused fled in the

cover of darkness after shooting back at the police.

(e) Pursuant to such alleged fleeing of Tulsiram Prajapati

from police custody, Mr. Dinesh Kumar, SP, Udaipur called

Mr. Vipul Agarwal, SP Banaskantha and informed him of the

same. Thereafter, local police of Banaskantha headed by Mr.

Vipul Agarwal under direct supervision of Mr. D.G. Vanzara,

Range DIG, swung into action and registered an FIR being

Crime Register No. 115 of 2006 at Ambaji Police Station,

Banaskantha, on 28.12.2006 at 8.00 hrs. claiming that

Tulsiram Prajapati had been killed in an encounter.

5 (f) It is further alleged that when patrolling was carried out,

three persons tried to stop one Matador van but the vehicle

did not stop there. It has also been alleged that a police jeep

of Mr. A.A. Pandya, SI was coming behind the Matador and the

said three persons tried to stop it. On stopping the police jeep,

Mr. Narayansinh Fatehsinh Chauhan, ASI recognized one of

the three persons in the light of jeep as the absconding

Tulsiram Prajapati. On seeing that, the deceased took out a

weapon kept in the nylon belt on his waist and fired which hit

the left side of the mudguard of the police jeep and ran away

in the darkness. While running, they fired at the police party

in which one bullet hit at the left shoulder of Shri A.A. Pandya,

SI. It is alleged that in self-defence Shri A.A. Pandya fired two

rounds from his service revolver and Mr. Narayansinh

Fatehsinh Chauhan and Mr. Yuddharamsinh Nathusinh

Rajput, Rajasthan police constables also fired from their

weapons. On account of the firing by the police party, bullets

hit Tulsiram Prajapati and he fell down on road side and the

other two persons ran away and could not be traced.

6 Thereafter, he was taken to Ambaji Cottage Hospital where he

was declared dead by the doctor on duty.

(g) It is the further case of the petitioner that the deceased

being a key eye witness to the murder of Sohrabuddin and his

wife Kausarbi, the team of Mr. D.G. Vanzara and others

planned to do away with him to avoid his interrogation by Ms.

Geeta Johri, Inspector General of Police. The aforesaid facts

create a strong suspicion on the conduct of respondent Nos. 6

to 19 and the petitioner has every reason to believe that her

son- Tulsiram Prajapati has been killed by them in a fake

encounter. She also alleged that the respondents/accused

officers enjoy powerful position in their respective State Police

and are trying to obstruct further inquiry into the fake

encounter killing of her son, who was a material witness in the

case of fake encounter of Sohrabuddin and his wife Kausarbi.

Hence, the petitioner has preferred this petition before this

Court praying for direction to CBI to register an FIR and

investigate the case.

7 3) Stand of the State of Gujarat - respondent No.1

(a) Shri I.M. Desai, Deputy Inspector General of Police, CID

(Crime), Gujarat State filed an affidavit wherein it was stated

that the present petition under Article 32 of the Constitution is

not maintainable as the case registered in respect of death of

the petitioner's son in police firing on 28.12.2006 was under

investigation. The Writ Petition (Crl.) No. 6 of 2007 being a

Habeas Corpus was entertained by this Court as an

exceptional case and, therefore, the same cannot be cited as a

precedent. It was further stated in the said affidavit that

Tulsiram Prajapati was a dreaded inter-state criminal and was

also known as Tulsiram Prajapati @ Prafull @ Samir son of

Ganga Ram Prajapati involved in 21 criminal cases and he

was killed on 28.12.2006 in police firing after escaping from

police custody. In respect of the same, an FIR was registered

in Ahmedabad Railway Police Station of Gujarat vide CR No.

294/06 under Sections 307, 224, 225, 34 of Indian Penal

Code (in short "IPC") and Section 25(1)(AB) of the Arms Act,

1959 and Section 135 of Bombay Police Act, 1951.

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(b) According to the State, after escaping from the Police

Custody, Tulsiram Prajapati was again confronted by Gujarat

Police and Rajasthan Police and was killed in police firing for

which an FIR was registered in Ambaji Police Station vide CR

No. 115 of 2006 dated 28.12.2006 under Sections 307, 427,

34 of IPC and Section 25(1)(C) of the Arms Act, 1959 and

Section 135 of the Bombay Police Act, 1951. Since the cases

in respect of the above two incidents had already been

registered in the Police Stations, there is no need to register a

fresh case as claimed by the petitioner. It was further stated

that Tulsiram Prajapati was not a material witness in the case

of Sohrabuddin. He also denied that any such incident had

taken place within the premises of Udaipur Central Jail as

claimed by the petitioner on 25.03.2006 but there was a

quarrel among the prisoners on 24.03.2006 in the Court lock-

up for which a criminal case was registered at Bhopalpura

Police Station in C.R.No. 131 of 2006 under Sections 341, 323,

506 and 34 IPC.

9 (c) As regards the complaint made to the NHRC, investigation

carried out so far revealed that no such conspiracy amongst

the police officers of Maharashtra, Gujarat, Madhya Pradesh

and Rajasthan has come on record. The deceased also never

showed any apprehension to the petitioner about danger to his

life from marble dealers or police officers of Udaipur. The

petitioner's claim about Tulsiram Prajapati's apprehension to

his life is at the most hearsay and based on extraneous

considerations.

(d) The claim that the deceased-Tulsiram Prajapati was highly

inconvenient witness for respondent Nos. 6-19 is without

substance as respondent No. 10 - Mr. V.L. Solanki, an inquiry

officer, has stated in respect of alleged killing of Sohrabuddin

that during preliminary enquiry there was no link between

Tulsiram Prajapati and the death of Sohrabuddin and his wife

Kausarbi in an encounter. The same view has been expressed

by Ms. Geeta Johri, IGP under whose direct supervision the

case relating to Sohrabuddin was investigated. The `third

person' allegedly present at the time of abduction of

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Sohrabuddin and Kausarbi was Kalimuddin and not Tulsiram

Prajapati.

(e) In the subsequent affidavit dated 19.08.2010,

Dashrathbhai R. Patel, Under Secretary, Government of

Gujarat, Home Department has stated that the State CID

(Crime) has filed a charge-sheet which is the subject-matter of

present writ petition. It is the consistent stand of the State

that the encounter killing of Tulsiram Prajapati (subject-

matter of Writ Petition (Crl.) No. 115 of 2007) has nothing to

do with the killing of Sohrabuddin and Kausarbi (which was

the subject-matter decided by this Court in Writ Petition (Crl.)

No. 6 of 2007).

4) Stand of Mr. Amit Shah - respondent No.2:

(a) The present writ petition is an abuse of the process of law

by/at the behest of political party controlling the CBI.

(b) The investigation in a criminal case normally takes place

in accordance with the procedure prescribed under the Code

of Criminal Procedure (in short `the Cr.P.C.') and by the

normal investigating agency prescribed. The Constitutional

Court can direct deviation from such statutorily prescribed

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method of investigation and direct an outside agency like the

CBI to step in and investigate an offence only in extraordinary

circumstances and in rarest of rare cases. The petitioner has

not led factual foundation of facts to hold that the present

case is one of the rarest of rare cases which requires deviation

from the statutorily prescribed mode of investigation.

(c) On perusal of both the investigations and charge-sheet

which are filed in both the offences, it is seen that there is no

credible evidence to support the view that Tulsiram Prajapati

was that `third person' and the evidence which the CBI is

relying on is clearly fabricated being based on the unreliable

statements of witnesses. On the other hand all available

evidence points to the fact that the `third person' could only be

Kalimuddin @ Naimuddin who is under the protection of the

Andhra Pradesh Police. The CBI is seeking to take over

Tulsiram Prajapati's encounter case only to fabricate the

evidence and to destroy the charge-sheet filed by the Gujrat

Police in Tulsiram Prajapati's case. The status report filed by

the CBI in Sohrabuddin's case that Tulsiram Prajapati was the

`third person' which is a blatant lie. Though there is no link

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between the two and yet the CBI is attempting to fabricate a

link that does not exist. Inasmuch as the CBI which has lost

all its credibility as an independent agency and is being used

by political party in power in the Central Government, in the

absence of any extraordinary circumstances having been

shown by the petitioner in the petition no direction need be

issued for handing over the investigation to the CBI and

prayed for dismissal of the writ petition.

(5) Stand of the CBI - respondent No.21:

(a) The investigation conducted in R.C. No. 4(S)/2010,

Special Crime Branch, Mumbai, as per the directions of this

Court in its order dated 12.01.2010, vide Writ Petition (Crl.)

No. 6 of 2007 revealed that the alleged fake encounter of

Tulsiram Prajapati on 28.12.2006 was done in order to

eliminate him as he was the key witness in the criminal

conspiracy of the abduction and killing of Sohrabuddin and

Kausarbi by the powerful and the influential accused persons.

The investigation further revealed that the deceased knew that

his death was imminent at the hands of Gujarat Police in

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connivance with the Rajasthan Police as he was the prime

witness to the said case.

(b) The investigation also revealed that Tulsiram Prajapati

was brought to Ahmedabad on 28.11.2006 and 12.12.2006 in

connection with the case No. 1124 of 2004 in JM Court No.

13, Ahmedabad, along with co-accused Md. Azam and around

50 police commandos were accompanied for the escort party,

whereas on 25.11.2006, Tulsiram Prajapati was brought alone

on police escort by Rajasthan Police from Udaipur Jail when

less than five police men accompanied him. After the orders of

this Court for the investigation by this agency, it emerged that

police officials of ATS, Ahmedabad were involved in the

abduction and killing of Sohrabuddin and his wife Kausarbi.

(c) The murder of Tulsiram Prajapati took place on

28.12.2006, case was registered on 28.12.2006 and Gujarat

CID commenced investigation on 22.03.2007. However, even

after a lapse of 3 years, no action was taken against any of the

accused. As directed by this Court, only on the investigation

of Tulsiram Prajapati's case, the "larger conspiracy" would be

established and the mandate and tasks assigned by this Court

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to the CBI would be accomplished both in letter and spirit

towards the goal of a fair trial, upholding the rule of law. If

Tulsiram Prajapati's fake encounter case is not transferred to

the CBI for investigation, it may lead to issue-estoppel or res

judicata against prosecution.

Stand of the other respondents

6) As far as the officials of the Gujarat State Police are

concerned, they reiterated the stand taken by the State. Mr.

Dinesh Kumar, S.P. Udaipur, Rajasthan-respondent No.8 has

filed a separate counter affidavit denying all the allegations

made by the petitioner and taking the same stand as that of

the State of Gujarat and ultimately prayed for dismissal of the

writ petition.

7) In the light of the above pleadings, we heard Mr. Huzefa

A. Ahmadi, learned counsel for the writ petitioner, Mr. Ranjit

Kumar, learned senior counsel for the State of Gujarat

(respondent No.1), Mr. Ram Jethmalani, learned senior

counsel for Amit Shah (respondent No.2), Mr. K.T.S. Tulsi,

learned senior counsel for the CBI, Mr. Deepak Prakash,

learned counsel for respondent No.8, Mr. Jaideep Gupta,

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learned senior counsel for respondent No.6, Gp. Capt. Karan

Singh Bhati, learned counsel for respondent Nos. 12, 13 and

14 and Mr. H.P. Rawal, learned ASG for the Union of India.

8) The main grievance of the petitioner is that her deceased

son - Tulsiram Prajapati being a key witness to the murder of

Sohrabuddin and his wife Kausarbi, the team of Mr. D.G.

Vanzara, DIG and other officers of the State Police planned to

do away him to avoid the interrogation by Ms. Geeta Johri,

IGP. The petitioner had also strong suspicion on the conduct

of respondent Nos. 6-19 and has every reason to believe that

her son had been killed by them in a fake encounter. It is also

the apprehension of the petitioner that since the

respondents/accused police officers enjoy powerful position in

their respective States and they are trying to obstruct further

inquiry in the matter, prayed for entrusting the investigation

to a specialized independent agency like the CBI.

9) Mr. Ranjit Kumar, learned senior counsel for the State of

Gujarat and Mr. Ram Jethmalani, learned senior counsel for

Mr. Amit Shah, respondent No.2, who, at the relevant time

was the Home Minister of the State, vehemently objected the

16

claim of the petitioner and by placing several materials

submitted that inasmuch as after proper investigation the

State Police has filed the charge-sheet, there is no need for

further investigation by the CBI at this stage. They further

submitted that any such direction at this stage would delay

the entire prosecution.

Key Issues:

10) Keeping the above submissions in mind, we have to first

find out (a) whether after filing of the charge-sheet by the State

agency, the Court is precluded from appointing any other

independent specialized agency like the CBI to go into the

same issues if the earlier investigation was not done as per the

established procedure; and (b) subject to the answer relating

to the issue raised in (a) whether the petitioner has made out a

case for entrusting the investigation to the CBI.

Analysis as to issue (a):

11) The first issue i.e. (a) as in the case on hand also arose in

the case of Rubabbuddin Sheikh (supra). The factual details

therein will be discussed in the later paragraphs. With regard

17

to the similar objection as to further investigation by the CBI,

this Court considered the following cases:

(i) Vineet Narain vs. Union of India, (1996) 2 SCC 199

(ii) Union of India vs. Sushil Kumar Modi, (1998) 8 SCC

661

(iii) Rajiv Ranjan Singh `Lalan' (VIII) vs. Union of India,

(2006) 6 SCC 613

(iv) Hari Singh vs. State of U.P., (2006) 5 SCC 733

(v) Aleque Padamsee vs. Union of India, (2007) 6 SCC 171

(vi) M.C. Mehta vs. Union of India, (2008) 1 SCC 407

(vii) R.S. Sodhi vs. State of U.P., 1994 Supp(1) SCC 143

(viii) Ramesh Kumari vs. State (NCT of Delhi), (2006) 2 SCC

677

(ix) Kashmeri Devi vs. Delhi Administration, 1988 Supp

SCC 482

(x) Gudalure M.J. Cherian vs. Union of India, (1992) 1

SCC 397; and

(xi) Punjab & Haryana High Court Bar Asson. Vs. State

of Punjab, (1994) 1 SCC 616

and concluded in paragraphs 60 and 61 as under:

18 "60. Therefore, in view of our discussions made hereinabove,

it is difficult to accept the contentions of Mr Rohatgi, learned

Senior Counsel appearing for the State of Gujarat that after

the charge-sheet is submitted in the court in the criminal

proceeding it was not open for this Court or even for the

High Court to direct investigation of the case to be handed

over to CBI or to any independent agency. Therefore, it can

safely be concluded that in an appropriate case when the

court feels that the investigation by the police authorities is

not in the proper direction and in order to do complete

justice in the case and as the high police officials are

involved in the said crime, it was always open to the court to

hand over the investigation to the independent agency like

CBI. It cannot be said that after the charge-sheet is

submitted, the court is not empowered, in an appropriate

case, to hand over the investigation to an independent

agency like CBI.

61. Keeping this discussion in mind, that is to say, in an

appropriate case, the court is empowered to hand over the

investigation to an independent agency like CBI even when

the charge-sheet has been submitted, we now deal with the

facts of this case whether such investigation should be

transferred to the CBI Authorities or any other independent

agency in spite of the fact that the charge-sheet has been

submitted in court. On this ground, we have carefully

examined the eight action taken reports submitted by the

State police authorities before us and also the various

materials produced and the submissions of the learned

counsel for both the parties."

(Emphasis supplied)

It is clear that in an appropriate case, particularly, when the

Court feels that the investigation by the State police

authorities is not in the proper direction as the high police

officials are involved, in order to do complete justice, it is

always open to the Court to hand over the investigation to an

independent and specialized agency like the CBI.

19 12) In the light of the above principles, now let us consider

the second issue (b) viz., whether the investigation relating to

the encounter killing of Tulsiram Prajapati should be

transferred to the CBI in spite of the fact that the charge-sheet

has been submitted in the Court by the State Police.

13) It is the specific stand of the writ petitioner that while

considering the grievance of Rubabbuddin Sheikh about the

death of his brother Sohrabuddin in a fake encounter, the

present petitioner, mother of Tulsiram Prajapati also filed Writ

Petition (Crl.) No. 115 of 2007 and, the same was tagged along

with Writ Petition (Crl.) No. 6 of 2007 which was filed by

brother of Sohrabuddin. The cause title of the case vide

Rubabbuddin Sheikh vs. State of Gujarat & Ors. (2010) 2

SCC 200 shows that Writ Petition (Crl.) No. 115 of 2007 was

heard along with Writ Petition (Crl.) No. 6 of 2007. Though at

the end of the judgment, this Court directed that Writ Petition

(Crl.) No. 115 of 2007 be listed after eight weeks before an

appropriate Bench. As pointed out by the learned counsel for

the petitioner and the CBI, the said judgment records that

there is strong suspicion that the `third person' picked up with

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Sohrabuddin was Tulsiram Prajapati. It was also observed

that call records of Tulsiram Prajapati were not properly

analyzed and there was no justification for the then

investigation officer, Ms. Geeta Johri to have walked out of the

investigation pertaining to Tulsiram Prajapati. In para 65, the

following observations are relevant:

"65. It also appears from the charge-sheet that it identifies

the third person who was taken to Disha farm as

Kalimuddin. But it does not contain the details of what

happened to him once he was abducted. The possibility of

the third person being Tulsiram Prajapati cannot be ruled

out, although the police authorities or the State had made all

possible efforts to show that it was not Tulsiram. In our view,

the facts surrounding his death evokes strong suspicion that

a deliberate attempt was made to destroy a human witness."

(Emphasis supplied)

Apart from the above conclusion, after analyzing several

Action Taken Reports filed by the State and various

circumstances and in view of the involvement of the high

police officials of the State in the crime therein, this Court

directed the CBI to investigate all the aspects of the case

relating to the killing of Sohrabuddin and his wife Kausarbi

including the possibility of a "larger conspiracy'"

21 14) Pursuant to the said direction, the CBI investigated the

cause of death of Sohrabuddin and his wife Kausarbi. The

CBI, in their counter affidavit, has specifically stated that as

per their investigation Tulsiram Prajapati was a key witness in

the murder of Sohrabuddin and he was the `third person' who

accompanied Sohrabuddin from Hyderabad and killing of

Tulsiram Prajapati was a part of the same conspiracy. It was

further stated that all the records qua Tulsiram Prajapati's

case were crucial to unearth the "larger conspiracy" regarding

the Sohrabuddin's case which despite being sought were not

given by the State of Gujarat.

15) As against the assertion of the writ petitioner and the

stand of the CBI, Mr. Ranjit Kumar and Mr. Ram Jethmalani,

learned senior counsel appearing for respondent Nos. 1 and 2

respectively cited several instances and relied on certain

materials to show that inquiry by the CBI is not warranted.

They are:

i) Tulsiram Prajapati, as mentioned in the petition and in

the prayer was the sharp shooter of Sohrabuddin. He was co-

accused of Sohrabuddin in Hamid Lala's case and was taken

22

into custody only on 29.11.2005. Obviously, he had been

absconding till then. In other words, he had been absconding

for nearly a year before he was arrested. After his arrest, he

was lodged in Central Jail, Udaipur. While in custody, he and

two of his jail-mates addressed a letter dated 11.05.2006 to

the Collector, Udaipur informing him about the attack carried

out on them in the jail premises and they were badly injured.

He did not even express a suspicion about any one who

planned the attack on him. He named seven persons who had

actually participated in the attack. In the said letter, he did

not allege or even suspect that this dangerous assault in jail

had anything to do with the Sohrabuddin-Kausarbi fake

encounter case or that he was being eliminated because he

was a witness of the murder of either Sohrabuddin or his wife.

ii) On 18.05.2006, Tulsiram Prajapati addressed another

letter to the Chairman, NHRC, New Delhi. In this letter again,

he did not allege that he was an eye witness and that is why

he was afraid of being eliminated. He, however, did admit that

he is an accused in serious cases in the State of Maharashtra,

Gujarat, Madhya Pradesh and Rajasthan. What he alleged

23

was that there was a conspiracy among the police officers of

these States to knock him out. Even the NHRC did not draw

any inference. Ultimately, Tulsiram Prajapati was killed at

about 8.00 a.m. on 28.12.2006. The scene of offence was

within the jurisdiction of Ambaji Police Station in District

Banaskantha of Gujarat. An FIR of this incident was

registered on the same day within 15 minutes.

iii) Till his death, no evidence had emerged that he had

accompanied Sohrabuddin about 13 months back i.e. on

25.11.2005 to Gujarat where the encounter took place on the

outskirts of Ahmedabad.

iv) The order of this Court in Rubabbuddin Sheikh (supra)

has been made under unfortunate circumstances without

hearing anybody except the State of Gujarat. It is the Union of

India and Amicus who is a law officer of the Union of India

that wanted the investigation into the Sohrabuddin's case be

transferred to the CBI which had been fully investigated by the

State police and resulted in a charge-sheet as far back as on

16.07.2007. The main ground on which faults were found was

that the investigation was the alleged failure to identify the

24

Andhra Pradesh Police officers and others who participated in

the abduction of the couple from Hyderabad to Gujarat leading

eventually to their being killed.

v) Apart from the 13 accused who had originally been

charge-sheeted by the Gujarat Police as a result of their

investigation, the CBI, on 23.07.2010, added the then Home

Minister of Gujarat as accused No.16 and involved him in the

Sohrabuddin's murder case.

vi) The CBI submitted two reports- Status Report No.1 on

30.07.2010 and a week thereafter, they filed the charge-sheet.

In pursuance of the charge-sheet, accused No.16-Amit Shah

was arrested on 25.07.2010 and released on bail by the High

Court of Gujarat on 29.10.2010. The order releasing him on

bail is subject matter of challenge in SLP (Crl.) No. 9003 of

2010. The Status Report No.1, filed by the CBI before the

Bench on 30.07.2010 informed the Court that Tulsiram

Prajapati was abducted along with Sohrabuddin and Kausarbi

and he was handed over to the Rajasthan Police. There is no

explanation as to why he was not killed along with Kausarbi or

Sohrabuddin. After all, both were arch criminals jointly

25

involved in several murderous activities all over the country.

When he was spared for 13 months and then disposed of

during this time he had every opportunity to disclose that he

was an eye witness of the Sohrabuddin's murder case.

16) By placing all the above details and further materials

both the senior counsel submitted:

i) By filing the charge-sheet by the Gujarat Police the State

has granted the prayer which Narmada Bai has made in her

writ petition.

ii) The persons whom she has implicated have all been

charge-sheeted by the Gujarat Police.

iii) The conduct of the CBI does not inspire any confidence

in this case. It has become a party to a political conspiracy.

iv) In the Status Report Nos. 1 and 2 filed by the CBI and

submitted before the other Bench, they have already reported

to the Court that the Sohrabuddin couple on their fateful

journey from Hyderabad to Gujarat were accompanied by a

`third person' and that `third person' was Tulsiram Prajapati.

This is a dishonest finding based upon some fabricated

circumstances which are capable of being easily demolished.

26 v) The order dated 12.01.2010 in Rubabbuddin Sheikh

(supra) is contrary to binding authorities and no credence or

value can in law be assigned to the two Status reports. The

very anxiety on the other side that this should be handed over

to the CBI creates a serious apprehension about the

impartiality and independence of this agency.

Analysis as to issue (b):

17) Inasmuch as the present writ petition is having a bearing

on the decision of the writ petition filed by Rubabbuddin

Sheikh and also the claim of the petitioner, the observations

made therein, particularly, strong suspicion about the `third

person' accompanied Sohrabuddin, it is but proper to advert

factual details, discussion and ultimate conclusion of this

Court in Rubabbudin Sheikh's case. Acting on a letter

written by Rubabbuddin Sheikh to the Chief Justice of India

about the killing of his brother Sohrabuddin Sheikh in a fake

encounter and disappearance of his sister-in-law Kausarbi at

the hands of the Anti-Terrorist Squad (ATS), Gujarat Police

and Rajasthan Special Task Force (RSTF), the Registry of this

Court, on 21.01.2007, forwarded the letter to the Director

27

General of Police, Gujarat for necessary action. It is further

seen that after six months, the Director General of Police,

Gujarat directed Ms. Geeta Johri, Inspector General of Police

(Crime), to inquire about the facts stated in the letter. A case

was registered as Enquiry No. 66 of 2006 and from 11.09.2006

to 22.01.2007, four interim reports were submitted by Mr. V.L.

Solanki, Police Inspector, working under Ms. Geeta Johri. In

Writ Petition No. 6 of 2007, Rubabbuddin Sheikh prayed for

direction for investigation by the CBI into the alleged

abduction and fake encounter of his brother Sohrabuddin by

the Gujarat Police Authorities and also prayed for registration

of an offence and investigation by the CBI into the alleged

encounter of one Tulsiram Prajapati, a close associate of

Sohrabuddin, who was allegedly used to locate and abduct

Sohrabuddin and his wife Kasurbi, and was thus a material

witness against the police personnel. He also prayed for

production of Kausarbi, his sister-in-law. After going through

various reports, arguments of the counsel for the writ

petitioner and the State of Gujarat as well as Solicitor General

for India, who appeared as Amicus Curiae, this Court disposed

28

of the writ petition by entrusting the investigation to the CBI.

Even before the said Bench, such move was strongly resisted

by the State through their senior counsel Mr. Mukul Rohtagi.

18) Mr. Ram Jethmalani, learned senior counsel appearing

for the respondent No. 2 in the present writ petition

vehemently submitted that the entire discussion and the

ultimate conclusion in Rubabbuddin Sheikh's case is

unacceptable and no reliance needs to be placed on it. He also

submitted that respondent No. 2 and other police officials were

not heard by the said Bench before ordering fresh

investigation by the CBI. It is true that in the said writ

petition, on behalf of the respondents, the Bench heard only

the counsel for the State of Gujarat, however, it is not the case

of any one that the State was not given adequate opportunity

before the said Bench. As said earlier, in fact, the State was

represented by Mr. Mukul Rohtagi, reputed senior counsel and

he put forth all relevant materials highlighting the stand of the

State. Inasmuch as all the police officials of the State of

Gujarat including the respondent No. 2 in the present writ

petition were part of the State in Rubabuddin Sheikh's case,

29

we are of the view that it cannot be said that the same is not

applicable to the case on hand. The following conclusion in

Rubabbuddin Sheikh's case are relevant:

"53. It is an admitted position in the present case that the

accusations are directed against the local police personnel in

which the high police officials of the State of Gujarat have

been made the accused. Therefore, it would be proper for the

writ petitioner or even the public to come forward to say that

if the investigation carried out by the police personnel of the

State of Gujarat is done, the writ petitioner and their family

members would be highly prejudiced and the investigation

would also not come to an end with proper finding and if

investigation is allowed to be carried out by the local police

authorities, we feel that all concerned including the relatives

of the deceased may feel that investigation was not proper

and in that circumstances it would be fit and proper that the

writ petitioner and the relatives of the deceased should be

assured that an independent agency should look into the

matter and that would lend the final outcome of the

investigation credibility however faithfully the local police

may carry out the investigation, particularly when the gross

allegations have been made against the high police officials

of the State of Gujarat and for which some high police

officials have already been taken into custody.

54. It is also well known that when police officials of the

State were involved in the crime and in fact they are

investigating the case, it would be proper and interest of

justice would be better served if the investigation is directed

to be carried out by the CBI Authorities, in that case CBI

Authorities would be an appropriate authority to investigate

the case.

60. Therefore, in view of our discussions made hereinabove,

it is difficult to accept the contentions of Mr Rohatgi, learned

Senior Counsel appearing for the State of Gujarat that after

the charge-sheet is submitted in the court in the criminal

proceeding it was not open for this Court or even for the

High Court to direct investigation of the case to be handed

over to CBI or to any independent agency. Therefore, it can

30

safely be concluded that in an appropriate case when the

court feels that the investigation by the police authorities is

not in the proper direction and in order to do complete

justice in the case and as the high police officials are

involved in the said crime, it was always open to the court to

hand over the investigation to the independent agency like

CBI. It cannot be said that after the charge-sheet is

submitted, the court is not empowered, in an appropriate

case, to hand over the investigation to an independent

agency like CBI.

61. Keeping this discussion in mind, that is to say, in an

appropriate case, the court is empowered to hand over the

investigation to an independent agency like CBI even when

the charge-sheet has been submitted, we now deal with the

facts of this case whether such investigation should be

transferred to the CBI Authorities or any other independent

agency in spite of the fact that the charge-sheet has been

submitted in court.......................................

62. From a careful examination of the materials on record

including the eight action taken reports submitted by the

State police authorities and considering the respective

submissions of the learned Senior Counsel for the parties,

we are of the view that there are large and various

discrepancies in such reports and the investigation

conducted by the Police Authorities of the State of Gujarat

and also the charge-sheet filed by the State investigating

agency cannot be said to have run in a proper direction. It

appears from the charge-sheet itself that it does not reveal

the identity of police personnel of Andhra Pradesh even when

it states that Sohrabuddin and two others were picked up by

Gujarat Police personnel, accompanied by seven personnel of

Hyderabad Police. It also appears from the charge-sheet that

Kausarbi was taken into one of the two Tata Sumo Jeeps in

which these police personnel accompanied the accused. They

were not even among the people who were listed as accused.

Mr Gopal Subramanium, Additional Solicitor General for

India (as he then was) was justified in making the comment

that an honest investigating agency cannot plead their

inability to identify seven personnel of the police force of the

State.

31

65. It also appears from the charge-sheet that it identifies

the third person who was taken to Disha farm as

Kalimuddin. But it does not contain the details of what

happened to him once he was abducted. The possibility of

the third person being Tulsiram Prajapati cannot be ruled

out, although the police authorities or the State had made all

possible efforts to show that it was not Tulsiram. In our view,

the facts surrounding his death evokes strong suspicion that

a deliberate attempt was made to destroy a human witness.

68. From the above factual discrepancies appearing in the

eight action taken reports and from the charge-sheet, we,

therefore, feel that the Police Authorities of the State of

Gujarat had failed to carry out a fair and impartial

investigation as we initially wanted them to do. It cannot be

questioned that the offences the high police officials have

committed were of grave nature which needs to be strictly

dealt with."

After arriving at such conclusion, the Bench directed the CBI

to investigate all aspects of the case relating to the killing of

Sohrabuddin and his wife Kausarbi including the alleged

possibility of a "larger conspiracy".

19) It is clear that the above judgment records that there was

a strong suspicion that the `third person' picked up with

Sohrabuddin was Tulsiram Prajapati. It was also observed

that the call records of Tulsiram were not properly analyzed

and there was no justification for the then Investigation Officer

- Ms. Geeta Johri to have walked out of the investigation

pertaining to Tulsiram Prajapati. The Court had also directed

32

the CBI to unearth "larger conspiracy" regarding the

Sohrabuddin's murder. In such circumstances, we are of the

view that those observations and directions cannot lightly be

taken note of and it is the duty of the CBI to go into all the

details as directed by this Court.

20) Countering the stand of the petitioner, CBI and Union of

India, the State and other respondents projected the case

relating to Navrangpura which took place on 08.12.2004. The

scene of offence was the office premises of a firm called

Popular Builders owned by two Patel brothers - Raman Patel

and Dashrath Patel. Some unknown persons entered into the

premises and they did not kill anyone but they fired shots

which damaged the computer installed in the office. An

employee of the firm, who was sitting on the ground floor,

where the incident took place, lodged an FIR with the

Navrangpura Police Station on 08.12.2004 in the city of

Ahmedabad. The FIR did not name any one of the assailant,

however, it was then discovered that the FIR was substantially

a false one and the suspects were known and yet had not been

named. As a result of fresh discovery made during the course

33

of investigation, it was Patel Brothers who were ultimately

charge-sheeted for filing a false case. The second case is

Hamid Lala murder case in which one Hamid Lala, a protector

of marble dealers of Rajasthan against criminal extortion by

Sohrabuddin gang was shot dead at a place within the

jurisdiction of Ambaji Police Station, Udaipur in the State of

Rajasthan. This incident took place on 31.12.2004. It is a

fact that Sohrabuddin after committing Hamid Lala's murder

absconded and was not available to the Rajasthan Police.

Later, it came to the knowledge of the investigating authorities

that he had been hiding in a village of Madhya Pradesh. In the

Hamid Lala murder case, Sohrabuddin's co-accused were

Tulsiram Prajapati, Sylvester and one Azamkhan. It was

further pointed out that one Kalimuddin @ Naimuddin another

notorious criminal wanted in many serious cases was residing

in the State of Andhra Pradesh along with his sister Saleema

Begum. They were acting as informers of the Andhra Pradesh

Police and they were under their protection. Saleema Begum

was residing in Government Railway Quarters. It was

Kalimuddin, who seems to have approached by somebody who

34

invited Sohrabuddin and his wife Kausarbi from their hide out

in Madhya Pradesh to Hyderabad. This happened in the

middle of November, 2005. It was further highlighted that on

or about 22.11.2005, Sohrabuddin and his wife Kausarbi left

by a luxury bus for Sangli in Maharashtra. Two tickets for the

bus journey were purchased by one Sri Hari. The bus was

pursued by police vehicle, two of them were in Tata Sumo

vehicles belonging to the Andhra Pradesh Police. They were

driven by two drivers in the employment of police being

ordinary policemen. The Andhra Pradesh police officers who

sat in these two vehicles have not been identified despite

investigation both by the Gujarat Police as well as later by the

CBI. Sohrabuddin was done to death in an encounter with the

police in the early morning of 26.11.2005. In the eventual

charge-sheet filed by the Gujarat Police on 16.07.2007 against

13 persons it was reported that the encounter was a fake one.

It is the definite case of the respondent No. 2 that the

preliminary enquiry was first registered on 27.06.2006. In the

charge-sheet filed on 16.07.2007, the Gujarat Police found no

evidence of any kind to implicate the respondent No. 2-Amit

35

Shah.

21) Mr. Ranjit Kumar and Mr. Ram Jethmalani, learned

senior counsel pointed out that the Gujarat Police while

investigating Sohrabuddin's murder case had conducted a

good part of investigation in the State of Andhra Pradesh. The

Andhra Pradesh Police, however, was determined to yield no

clue whatsoever about the role of the State police in the

murder. Ms. Geeta Johri, the head of the Gujarat

Investigating Chief had interrogated the potential witnesses

but she drew a blank. She was not provided with more

materials such as Vehicle Entry Register for further

investigation. The Gujarat police headed by Ms. Johri had

come to the conclusion that it was possible that the couple

was accompanied by a `third person' and in all probability that

person was Kalimuddin, who had succeeded in getting the

couple from Madhya Pradesh to Hyderabad and he handed

over the couple to the murdering team which certainly

included the Andhra Pradesh officers.

22) According to the learned senior counsel, from all the

details particularly, the charge-sheet filed by the Gujarat

36

Police which included even senior police officers as accused,

there is no need for further investigation by the CBI. Even

otherwise, according to them, the conduct of the CBI does not

inspire any confidence in this case. It has become party to a

political conspiracy and acting as subordinate police force of

the Central Government in sensitive cases having political

implications.

23) If we analyze the allegations of the State and other

respondents with reference to the materials placed with the

stand taken by the CBI, it would be difficult to accept it in its

entirety. It is the definite case of the CBI that the abduction of

Sohrabuddin and Kausarbi and their subsequent murders as

well as the murder of Tulsiram Prajapati are one series of acts,

so connected together as to form the same transaction under

Section 220 of the Cr.P.C. As rightly pointed out by the CBI, if

two parts of the same transaction are investigated and

prosecuted by different agencies, it may cause failure of justice

not only in one case but in other trial as well. It is further

seen that there is substantial material already on record which

makes it probable that the prime motive of elimination of

37

Tulsiram Prajapati was that he was a witness to abduction of

Sohrabuddin and Kausarbi. Both oral and documentary

evidence raise strong suspicion that the encounter was fake

and stage managed as predicted by Tulsiram Prajapati prior to

his death in a number of communications. We have already

adverted to his complaint to the District Collector, Udaipur,

Rajasthan and representation to the NHRC, New Delhi. In

both the representations Tulsiram Prajapati highlighted about

the danger to his life. In fact, the NHRC forwarded his

representation to the Director General of Police, Gujarat for

necessary action.

24) It is relevant to point out the letter of Shri V.L. Solanki

dated 18.12.2006 seeking permission to interrogate Tulsiram

Prajapati and Sylvester lodged in Udaipur Jail. With regard to

the letter, Ms. Geeta Johri, Head of SIT, is alleged to have

recorded that even she may be given permission to accompany

the I.O. for interrogation. It was pointed out by the CBI that

the letter of Shri V.L. Solanki containing the signature of Ms.

Geeta Johri was not found in the official file. In its place, it

was pointed out that a fabricated note dated 05.01.2007 along

38

with a noting of Shri G.C.Raigar dated 06.01/08.01.2007 was

found in the file in which it was recorded as under:

"To go to Udaipur to interrogate accused Sylvester and

Tulsiram Prajapati (both being allegedly primary witnesses in

the case) of whom Tulsi was recently encountered at BK by

border range."

If we compare the note and the above record of statement, it

shows that each one is self contradictory, more particularly,

the note seeks to interrogate the dead man. It also cannot be

ruled out that the stand taken by the CBI that as soon as the

State police learnt about the direction of investigation by Ms.

Geeta Johri, immediate pre-emptive steps have been taken to

eliminate Tulsiram Prajapati. The CBI has pointed out that

the critical document is the note dated 22.05.2007 in the

handwriting of Ms. Geeta Johri which records as under:

"There is a systematic effort on the part of the State

Government supporting the police to tamper with witnesses

and evidences....."

It was pointed out that the words "State Government

supporting" are sought to be struck off and are substituted by

"certain agencies including" in place of "State Government

39

supporting". This was pointed out as a direct evidence of

systematic effort of the State Government attempting to

tamper with the witnesses and evidences. The CBI has also

pointed out that Ms.Geeta Johri in her note dated 22.05.2007

recorded that

"...the Government may please therefore be moved to

handover the case to the CBI for the purpose of meting out

justice to the petitioners and maintaining the image of

Gujarat Police..."

It is relevant to point out that the FIR recorded by the Gujarat

Police in Sohrabuddin's case claimed it to be an encounter

death and it was only on the intervention and issuance of rule

nisi by this Court and filing of eight Action Taken Reports, the

SIT informed this Court that it was a fake encounter and

identified the police officials.

25) Apart from the above vital information, it is useful to

refer that even after the transfer of Sohrabuddin's case to the

CBI on 12.01.2010, the Gujarat Police did not move till May,

2010. The first arrest in the Tulsiram Prajapti was made in

May, 2010. Further, when the CBI laid charge-sheet on

23.07.2010 in Sohrabuddin's case, the State promptly

40

concluded its investigation and filed charge-sheet in Tulsiram

Prajapati's case on 30.07.2010. It was also pointed out that

this was done only because after repeated requests the

Gujarat Police handed over the copies of notes, diaries in

Tulsiram Prajapati's case to the CBI in the month of May,

2010.

26) Another important aspect is that on earlier occasions,

Tulsiram Prajapti was produced before the Court in

Ahmedabad through video conferencing and he was removed

from jail on 27.12.2006 and produced before a Court, when

ultimately, on 28.12.2006 i.e. the next day, he was killed.

27) According to the CBI, the investigation has revealed that

Tulsiram Prajapati was the `third person' accompanying

Sohrabuddin and Kausarbi on the fateful night of their

abduction and subsequent murders in the year 2005. The

investigation further revealed that after the abduction of

Sohrabuddin and Kausarbi, police personnel of Rajasthan had

taken away Tulsiram Prajapati from Valsad on 23.11.2005.

However, it was pointed out by the CBI that he was shown to

41

have been arrested on 29.11.2005 at Bhilwara by the

Rajasthan Police.

28) Nayamuddin Shaikh, in his statement dated 19.02.2010,

before the CBI has mentioned that they had gone to see off his

brother Sohrabuddin, Kausarbi and Tulsiram Prajapati from

Indore bus stand for Hyderabad and that Sohrabuddin had

told him that they would be staying with Kalimuddin in

Hyderabad. The above statement of Nayamuddin Shaikh is

corroborated by the statement of Rubabuddin Shaikh dated

18.02.2010 wherein he had stated that Nayamuddin told him

that from Indore, Tulsiram Prajapati, friend of Sohrabuddin

had also joined them for going to Hyderabad. Rubabuddin

had further stated that when Tulsiram Prajapati was brought

from Udaipur to Ujjain for court hearing, Tulsiram Prajapati

had told him that he along with Sohrabuddin and Kausarbi

had gone to Hyderabad and had stayed with Kalimuddin in

Hyderabad.

29) The statement of Azam Khan dated 26.03.2010 indicates

the manner in which the abduction of Sohrabuddin and

Kausarbi was planned and executed. Azam Khan, in his

42

statement had stated that he and Tulsiram Prajapati were

lodged in Udaipur prison at which time Tulsiram Prajapati told

him that on information given by Tulsiram Prajapati,

Sohrabuddin, Kausarbi and Tulsiram were abducted from

Hyderabad. Among the entire statement of Azam Khan, the

relevant part is that Tulsiram Prajapati helped in tracking

down Sohrabuddin.

30) Learned senior counsel for the CBI, Mr. K.T.S. Tulsi has

pointed out that since the CBI had primarily conducted the

investigation in the case of encounter of Sohrabuddin and the

murder of Kausarbi, it has so far not launched a full fledged

investigation into the circumstances in which Tulsiram

Prajapati was killed. According to him, certain facts have

come to the notice of the CBI only as part of "larger

conspiracy" with regard to which investigation was ordered by

this Court and it was pointed out that full-fledged

investigation by the CBI alone reveal further facts and lead to

more direct evidence. Mr. K.T.S. Tulsi is right in claiming that

the investigation in every criminal case is conducted on the

basis of suspicion and reason to believe and to apply the

43

standard of proof beyond doubt at a stage when a full fledged

investigation is yet to be launched.

31) It is not in dispute that it is the age-old maxim that

justice must not only be done but must be seen to be done.

The fact that in the case of murder of an associate of Tulsiram

Prajapati, Senior police officials and a senior politician were

accused which may shake the confidence of public in

investigation conducted by the State Police. If the majesty of

rule of law is to be upheld and if it is to be ensured that the

guilty are punished in accordance with law notwithstanding

their status and authority which they might have enjoyed, it is

desirable to entrust the investigation to the CBI.

32) As stated earlier, it is the specific claim of the State of

Gujarat that they have conducted a fair and impartial

investigation into the killing of Tulsiram Prajapati, however,

analysis of the materials which we have already discussed

show several lacuna on the part of the investigation by the

State Government. It is relevant to point out that much before

the incident dated 28.12.2006 which happened in village

Chappri in Banaskantha District of the State of Gujarat in

44

which Tulsiram Prajapati was allegedly shot in an encounter

while he had opened fire on the police party, who was on the

look out for him to apprehend him, after he had allegedly

escaped from a running train while being taken back to

Rajasthan from Gujarat where he was stated to be produced in

a court proceeding, Tulsiram Prajapati lodged two complaints

in written, one to the Collector, Udaipur and another

addressed to the Chairman, NHRC, New Delhi expressing the

apprehension that he is likely and going to be killed by

Gujarat and Rajasthan police. In fact, on 28.12.2006,

Tulsiram Prajapati has been killed in the fake encounter which

has now being admitted to be a fake counter after a gap of 3 =

years.

33) In Md. Anis vs. Union of India and Ors. 1994 Supp (1)

SCC 145, it has been observed by this Court that:

"5......Fair and impartial investigation by an independent

agency, not involved in the controversy is the demand of

public interest. If the investigation is by an agency, which is

allegedly privy to the dispute, the credibility of the

investigation will be doubted and that will be contrary to the

public interest as well as the interest of justice......."

"2.....Doubts were expressed regarding fairness of

investigation as it was feard that as the local police was

45

alleged to be involved in the encounter, the investigation by

an officer of the UP Cadre may not be impartial...."

34) In another decision of this Court in R.S. Sodhi vs. State

of U.P. & Ors. 1994 Supp (1) SCC 143, the following

conclusion is relevant:

"2......We have perused the events that have taken place

since the incidents but we are refraining from entering upon

the details thereof lest it may prejudice any party but we

think that since the accusations are directed against the

local police personnel it would be desirable to entrust the

investigation to an independent agency like the Central

Bureau of Investigation so that all concerned including the

relatives of the deceased may feel assured that an

independent agency is looking into the matter and that

would lend the final outcome of the investigation credibility.

However faithfully the local police may carry out the

investigation, the same will lack credibility since the

allegations are against them. It is only with that in mind that

we having thought it both advisable and desirable as well as

in the interest of justice to entrust the investigation to the

Central Bureau of Investigation forthwith and we do hope

that it would complete the investigation at an early date so

that those involved in the occurrences, one way or the other,

may be brought to book. We direct accordingly......"

35) In both these decisions, this Court refrained from

expressing any opinion on the allegations made by either side

but thought it wise to have the incident investigated by an

independent agency like the CBI so that it may bear

credibility. This Court felt that no matter how faithfully and

honestly the local police may carry out the investigation, the

46

same will lack credibility as allegations were directed against

them. This Court, therefore, thought it both desirable and

advisable and in the interest of justice to entrust the

investigation to the CBI so that it may complete the

investigation at an early date. It was clearly stated that in so

ordering no reflection either on the local police of the State

Government was intended. This Court merely acted in public

interest.

36) The above decisions and the principles stated therein have

been referred to and followed by this Court in Rubbabuddin

Sheikh (supra) wherealso it was held that considering the fact

that the allegations have been leveled against higher level

police officers, despite the investigation made by the police

authorities of the State of Gujarat, ordered investigation by the

CBI. Without entering into the allegations leveled by either of

the parties, we are of the view that it would be prudent and

advisable to transfer the investigation to an independent

agency. It is trite law that accused persons do not have a say

in the matter of appointment of an investigation agency. The

accused persons cannot choose as to which investigation

47

agency must investigate the alleged offence committed by

them.

37) In view of our discussions and submission of learned

counsel on either side and keeping in mind the earlier

directions given by this Court, although, charge-sheet has

been filed by the State of Gujarat after a gap of 3 = years after

the incident, that too after pronouncement of judgment in

Rubbabudin's case and considering the nature of crime that

has been allegedly committed not by any third party but by

the police personnel of the State of Gujarat, we are satisfied

that the investigation conducted and concluded in the present

case by the State police cannot be accepted. In view of various

circumstances highlighted and in the light of the involvement

of police officials of the State of Gujarat and police officers of

two other States, i.e. Andhra Pradesh and Rajasthan, it would

not be desirable to allow the Gujarat State Police to continue

with the investigation, accordingly, to meet the ends of justice

and in the public interest, we feel that the CBI should be

directed to take the investigation.

48 Submission of Report by the CBI to this Court and

subsequent monitoring.

38) The other question relates to submission of a report by

the CBI to this Court and further monitoring in the case.

Though in Rubabbudin Sheikh's case (supra), this Court

directed the CBI that after investigation submits a report to

this Court and thereafter, further necessary orders will be

passed in accordance with the said report, in view of the

principles laid down in series of decisions by this Court, we

are not persuaded to accept the course relating to submission

of report to this court and monitoring thereafter.

a) In Vineet Narain (supra), this Court held as under:

"In case of persons against whom a prima facie case is made

out and a charge-sheet is filed in the competent court, it is

that court which will then deal with that case on merits, in

accordance with law."

b) In Sushil Kumar Modi (supra), this Court observed that

the monitoring process in the High Court in respect of the

particular matter had come to an end with the filing of the

charge-sheet in the Special Court and the matter relating to

execution of the warrant issued by the Special Court against

Shri Laloo Prasad Yadav was a matter only within the

49

competence of the Special Court so that there was no occasion

for the High Court to be involved in any manner with the

execution of the warrant. By relying on decision in Vineet

Narain's case (supra), this Court reiterated 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 investigating

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.

c) In M.C. Mehta (Taj Corridor Scam) vs. Union of India

and Others, (2007) 1 SCC 110, this Court again reiterated the

same principle. The following conclusion is relevant:

"30. At the outset, we may state that this Court has

repeatedly emphasized in the above judgments that in

Supreme Court monitored cases this Court is concerned

with ensuring proper and honest performance of its

duty by CBI and that this Court is not concerned with

the merits of the accusations in investigation, which are

to be determined at the trial on the filing of the charge-

50

sheet in the competent court, according to the ordinary

procedure prescribed by law... ....."

After saying so, this Court concluded:

"34. We, accordingly, direct CBI to place the

evidence/material collected by the investigating team

along with the report of the SP as required under

Section 173(2) CrPC before the court/Special Judge

concerned who will decide the matter in accordance

with law."

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 the CBI require any further direction,

they are free to approach this Court by way of an application.

Conclusion:

51 39) In view of the above discussion, the Police Authorities of

the Gujarat State are directed to handover all the records of

the present case to the CBI within two weeks from this date

and the CBI shall investigate all aspects of the case relating to

the killing of Tulsiram Prajapati and file a report to the

concerned court/special court having jurisdiction within a

period of six months from the date of taking over of the

investigation from the State Police Authorities. We also direct

the Police Authorities of the State of Gujarat, Rajasthan and

Andhra Pradesh to cooperate with the CBI Authorities in

conducting the investigation.

40) It is made clear that any observation made in this order is

only for the limited purpose of deciding the issue whether

investigation is to be handed over to the CBI or not and shall

not be construed as expression of opinion on the merits of the

case. Though the petitioner has prayed for compensation for

the killing of her son, inasmuch as we direct the CBI to

investigate and submit a report before the court

concerned/special court within six months, depending on the

52

outcome of the investigation, petitioner is permitted to move

the said court for necessary direction for compensation and it

is for the said court to pass appropriate orders in accordance

with law. The writ petition is allowed on the above terms.

.................................................J.

(P. SATHASIVAM)

...............................................J.

(DR. B.S. CHAUHAN)

NEW DELHI;

APRIL 08, 2011.

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