Shamima Kauser vs Union Of India & Ors

CRIMINAL APPEAL NO. 818 OF 2010 (Arising out of Special Leave Petition(Crl.) No.7305/2009)

SHAMIMA KAUSER ...APPELLANT

VERSUS

UNION OF INDIA & ORS. ...RESPONDENTS

WITH

CRIMINAL APPEAL NO_819_OF 2010 (Arising out of Crl.M.P.No.19538/2009 in SLP(Crl.)No.3431/2010)

M.R. GOPINATH PILLAI ...APPELLANT

VERSUS

STATE OF GUJARAT & ORS. ...RESPONDENTS

JUDGMENT

B. SUDERSHAN REDDY, J.

Crl.M.P.No.19538/2009 for permission to file Special

Leave Petition is allowed.

2. Leave granted in both the appeals.

3. These appeals are being disposed of by a common order

since the same impugned order dated 09.09.2009 made in MCRLA No.

10625/2009 in SCRLA No.822/2004 of the High Court of Gujarat is

under challenge in both the appeals. The High Court by the 2

impugned order granted stay of the report submitted by the

learned Metropolitan Magistrate dated 07.09.2009 in Crime

No.8/2004 registered with DCB Police Station, Ahmedabad. The

impugned order is challenged by the appellants on various

grounds. In order to consider the same it may be just and

necessary to notice few relevant facts:

4. The appellant in Criminal Appeal @

S.L.P.(Crl.)No.7305/2009 is the mother of the deceased Israt

Jehan who is alleged to have been killed by the Gujarat Police in

an alleged encounter dated 15.06.2004. The appellant in Criminal

Appeal @ Crl. M. P. No. 19538/2009 is the father of the

deceased Javed Gulam Mohammed Sheikh @ Pranesh Kumar Pillai who

is also alleged to have been killed by the Gujarat Police in a

fake encounter. The appellants have been moving from pillar to

post seeking justice and a proper inquiry into the matter. They

have been consistently asserting before all the authorities that

their children were the victims of a fake encounter staged in the

year 2004 by the officers of the Gujarat Police. The appellant

Shamima Kauser filed a Writ Petition under Article 226 of the

Constitution of India, being Special Criminal Application

No.822/2004, before the High Court of Ahmedabad, seeking an

investigation into the death of her daughter, by the Central

Bureau of Investigation, for the reason that she firmly believed

that her daughter had been wrongfully done to death by the

Gujarat Police in a fake encounter. The appellant in the other 3

appeal filed Writ Petition in this court seeking appropriate

directions to order investigation by the Central Bureau of

Investigation into the "fake encounter killing" of his son

Javed Gulam Mohammed Sheikh @ Pranesh Kumar Pillai. The said

Writ Petition was disposed of by this court granting liberty to

the petitioner to approach the High Court of Gujarat seeking

appropriate remedy since a Writ Petition arising out of a similar

incident was already pending before the High Court.

5. On 07.08.2009 a leaned Single Judge of the High Court

passed an order adjourning the Special Criminal Application No.

822/2004 filed by Shamima Kauser to explore the possibility of

handing over the investigation to higher officer/s from the

cadre of Additional Director General of Police. The material

portion of the order reads as under:

"With a view to explore the possibility of handing over the investigation to higher officer/s. i.e. officer/s above the tank of Deputy Commissioner of Police, more particularly, from the cadre of Additional D.G., matter is adjourned to 12.08.2009. To be taken up at 1630 hours."

6. On 13.08.2009, the learned Single Judge having

considered the list of police officers produced by the State of

Gujarat passed a detailed order constituting a Team of

Investigation "for the purpose of carrying out the

investigation." A team of three senior most officers was

constituted for the aforesaid purpose. The High Court also

granted permission to Shamima Kauser to make suggestions to the 4

Investigating Team with regard to areas of investigation and to

inspect the record qua the FSL report and the ballistic report.

The High Court further directed the Investigating Team to

consider all the aspects from every angle relevant for the

purpose of finding out whether the incident was a genuine

encounter or a fake one. The report was directed to be placed

before the court on the next date of hearing. The appellant

promptly submitted an application before the Investigating Team

for inspection of documents and a further application suggesting

some areas of investigation.

7. On 07.09.2009, the Metropolitan Magistrate, Court

No.1, Ahmedabad, having made an inquiry under Section 176 of

the Criminal Procedure Code pursuant to the orders dated

12.08.2009 of the Chief Metropolitan Magistrate submitted an

Inquiry Report in respect of death of (1) Israt Jehan, (2)

Jishan Johar, (3)Amjad Ali Akbar Ali Rana@ Salim @ Raj Kumar

and (4) Javed Ghulam Sheikh. The learned Magistrate having made

a detailed analysis of the material available on record found

that they were killed by "the ------ police officers and police

personnel with their service revolver and unlicenced and

illegally held AK-56 rifle and with other weapons fired bullets

on body of deceased and thereby murdered ---- in a systemic

manner, cold-bloodedly, mercilessly and cruelly." 5

8. On 09.09.2009, the State of Gujarat and as well as two

police officers whose names were mentioned in the report filed

Miscellaneous Applications in Special Criminal Application

No.822/2004 with a prayer to set aside the report dated

07.09.2009 of the learned Magistrate whereunder the alleged

encounters were found to be fake. The matter was orally

mentioned for listing and they were taken up on the same day at

about 4.30 p.m. by the learned Single Judge and disposed of by

the impugned order. However, the Criminal Miscellaneous

Applications filed by the individual police officers were

withdrawn and only Miscellaneous Criminal Application No.

10625/2009 filed by the State of Gujarat was heard and disposed

of.

9. The learned counsel for the appellant - Ms. Kaimini

Jaiswal, and Mr. Huzefa Ahmadi appearing on behalf of the

appellant in the other appeal expressed their serious objection

to the manner in which the learned Single Judge took up the

application filed by the State of Gujarat and granted stay of

the report with a further direction to the Registrar General to

make a detailed inquiry into the matter which led to holding a

parallel inquiry and filing of the report by the learned

Magistrate. The learned Judge was of the opinion that the

inquiry made by the learned Magistrate was beyond "the provision

of law." It was strenuously contended the very Miscellaneous 6

Application filed by the State of Gujarat in the Writ Petition

filed by one of the appellants herein was not maintainable.

10. Notwithstanding various observations made by the

Learned Single Judge in the impugned order the fact remains the

order passed by the learned Single Jude is ad-interim in its

nature granting stay of the operation of the report as at

present. The learned Single Judge not yet finally disposed of

the Criminal Miscellaneous Application filed by the State of

Gujarat. The effect of the order passed by the learned Single

Judge is that the operation of the report is kept in abeyance

and therefore no further action based on the said report could

be initiated in whatsoever manner. In such view of the matter

we are not inclined to interfere with such ad-interim order in

exercise of our jurisdiction under Article 136 of the

Constitution of India. Interest of justice would be met if

the main Writ Petition itself is heard and disposed of alongwith

the Criminal Miscellaneous Application filed by the State of

Gujarat. In the meanwhile, the Investigating Team already

constituted by the High Court shall not deal with the report of

the learned Magistrate in any manner whatsoever. However, the

observations made in the impugned order with regard to the

report of the learned Magistrate are set aside which are totally

unnecessary. The observations so made if allowed to remain may

result in far reaching consequences. We fail to appreciate as

to why and what made the learned Judge to make such observations 7

even while the very application filed by the State is kept

pending for its adjudication. The directions issued to the

Registrar General to make a detailed inquiry into the matter

which led to holding of inquiry by the Magistrate under

Section 176 of the Code of Criminal Procedure is also set aside.

11. We must express our reservations the manner in which

the proceedings went on before the High Court resulting in the

impugned order. In the circumstances we consider it appropriate

to request the learned Chief Justice of the High Court to place

Special Miscellaneous Application No.822/2004 along with

Criminal Miscellaneous Applications including Criminal

Miscellaneous Application No. 10625/2009 filed by the State of

Gujarat for their disposal in accordance with law as

expeditiously as possible preferably within six months from

today. It is needless to observe that the observations made in

the impugned order shall have no bearing whatsoever upon the

merits of the case. The Division Bench is required to

adjudicate the Special Criminal Application on its own merits

uninfluenced by the previous order passed by the learned Single

Judge in the matter. It is also needless to observe that the

Division Bench shall consider the very maintainability of the

Criminal Miscellaneous Application filed by the State of

Gujarat.

8

12. Impleadment Application in Criminal Appeal @

S.L.P.(Crl.)No.7305/2009 : In view of the final orders passed in

the Criminal Appeals no further order is required to be passed

in this application. The application shall accordingly stand

dismissed with liberty granted to the applicant to avail such

remedies as may be available in law.

13. The appeals are accordingly disposed of.

................................J. [B.SUDERSHAN REDDY]

................................J. [SURINDER SINGH NIJJAR] New Delhi, April 19, 2010