R CR - MA 15981 2010 J 13

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MA/15981/2010
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 15981 of 2010 In CRIMINAL MISC.APPLICATION No. 9832 of 2010 In SPECIAL CRIMINAL APPLICATION No. 1850 of 2009
For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 1 to see the judgment ?
Whether Reporters of Local Papers may be allowed
2 To be referred to the Reporter or not ? 3 of the judgment ?

Whether their Lordships wish to see the fair copy
Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? Whether it is to be circulated to the civil judge
5?
========================================================= SIT - THRO' KARNAL SINGH - IPS - Applicant(s) Versus SAMIMA KAUSAR WD/O MOHMMED SHAMIM RAZA & 4 Respondent(s) =========================================================
Appearance : MR YOGESH S LAKHANI for Applicant(s) : 1, MR IH SAYED FOR petitioner
MR MUKUL SINHA FOR ORI. petitioner OF SP. CRI. APPLN. NO.1850/2009 MR KAMAL TRIVEDI, LD. ADVOCATE GENERAL AND MR. PK JANI, LD. PUBLIC PROSECUTOR ASSISTED BY MS. SANGEETA VISHEN, APP for STATE Respondent(s) : 3, MR PS CHAMPANERI for Respondent(s) : 4,
=========================================================
CRIMINAL MISC.APPLICATION/15981/2010
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CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL and HON'BLE SMT. JUSTICE ABHILASHA KUMARI
Date : 01/12/2011
ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. In order to see that the points, which arise for consideration can finally be put to an end in view of development of the
investigation and change in circumstances, it would be relevant to refer to some important factual aspects arising by the judgement of this Court dated 12.8.2010 No.822 in of Special 2004 and
Criminal
Application
allied matters and the subsequent development in the matter.
2.This Court, in its judgement dated 12.8.2010 at paragraphs 2 to 4, had narrated the
incident, as under:2. On Crime 15.6.2004, Branch vide C.R. No.8/2004 a of
Police
Station,
complaint
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was filed by Shri J.G. Parmar, P.I. (Crime Branch), 14.6.2004 information Commissioner Colour Ahmedabad at of about was Police Car informing 23.00 Shri received that hrs., by P.P. on an Joint Pandey
through his personal sources that in Blue Indica bearing one have Javed left Registration and Mumbai two arms for No.MH-02-JA-4786, and ammunition,
Pakistani Fidayeens, with
reaching Ahmedabad and they were to enter Ahmedabad early morning at any time. As the said information of was Sources, Police (Crime supported by Intelligence Commissioner Additional Branch),
Mr.D.G. Vanzara called ACP and PI and under his direct guidance, strong checking was ordered and it was planned to catch hold of the car and necessary teams were constituted; one team at Narol Chokdi Four-Roads, one team at CTM Four-Roads, one team at Naroda S.T. Workshop Three-Roads; one and team one at team Naroda-Himatnagar at Vishala Railway were Crossing; one team at Indira Bridge Circle; Circle deployed and they were comprising of Shri Amin - ACP, PSI Shri P.G. Waghela, PSI Shri C.J.Goswami, PI Shri B.D. Vanar, ACP Shri Singal and PI Shri Agrawat. The teams had started watch since 1.30 am in the morning and when there was watch of the team of
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Shri with
Amin
at
ACP, Narol,
at
about
am
in
the Car came
morning,
the
above
Indica
Registration therefore,
No.MH-02-JA-4786 they had
from Mumbai and took a right turn towards Naroda, followed the car. The informations were supplied to other teams on phone and it was informed on mobile taken to turn Shri from Singal that the car had Naroda-Himatnagar Railway
Crossing to Airport Road and it might run away, therefore, the car is required to be intercepted. Hence, over Indira Bridge, the members of the team comprising of ACP Shri Singal, PI Shri Tarun Barot, PI Shri RI Patel, PI Shri K.M. Waghela, PI Shri D.H. Goswami, PSI Shri I.K. Chauhan and other staff in their Road vehicle near proceeded Kotarpur towards Workshop Airport and
took a sharp turn and their vehicles were kept close to the divider and other members of the team had taken different position. At that time, when the Indica Car reduced its speed because of the turning at Kotarpur Water Works, Commando Mr.Mohan
Nanjibhai (Buckle No.1898), who was sitting in the Police Vehicle, under the direction of Shri Amin, fired at the rear tyre of Indica Car and as a result thereof, the car had come to a halt, close to the divider. At that time, from the left side, one terrorist came out with AK 56, got down and
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took
his position
behind
the
divider
and
started firing to the Police Vehicle. The other terrorists, who were sitting in the car had also started firing, but Shri Amin, the informant/complainant Mr.P.C. Mohanbhai himself and driver and of Commando
the car Mr.Bhalabhai and PSI Mr.K.M. Desai got down from the vehicle and took their position on the back side of the vehicle, therefore, started they saved in his AK 47 themselves and the with 10 Commando, under the orders of Shri Amin, firing self-defence Rifle. Government weapon About
rounds were fired and during the same, it was learnt that, as per the information, they were dangerous terrorists, therefore, ACP Shri Singal had ordered for firing. The member Mr.A. of his (Buckle team, (Buckle Commando and No.842) Mr.P.C. Commando started Mohanbhai No.2211)
Chaudhari
firing towards the persons sitting in the Indica Car. Therefore, both the Commandos, by taking their position with their weapons of AK47 fired 32 rounds and 10 rounds with the Sten-gun in response to the firing of the terrorists. Simultaneously, with his the service informant/complainant
revolver fired four rounds, Shri Amin fired five rounds, Shri Barot fired six rounds and Shri I.K. Chauhan fired three rounds towards terrorists. The cross firing
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continued for some time and thereafter when the firing was stopped, they went near to Indica Car and it was found that on the rear-seat one terrorist, one terrorist on the near 3. driving the seat, one total female four terrorist terrorists sitting next to driver and one terrorist divider, died on the spot. It was stated in the complaint that all the the deceased were terrorist - Fidayeens of prohibited Lashkar-e-Taiba had conspiracy to kill the Chief Minister of Gujarat, Shri Narendra Modi with suicidal attempt, therefore, they had procured arms and ammunition were of and also foreign without wanted in India. referred automatic to The in create other the terrorist aspects ammunition without without alleged activities
complaints of having possession of arms and weapons etc., The were licence, there offences passports, visa.
and also for entering India from Pakistan being proper in the complaint
under Section 3(2)(a) & (c), 13, 14 of the Foreigners' Act, Section 120B, 121, 121A, 122, 123, 307, 553, 186 of IPC, Section 27, 29 of the Arms Act and Section 3(1)(a)(b) and 3(2), 3(3), 20 and 21 of the Prevention of Terrorism Act and Section 135(1) of the Bombay Police Act. The accused shown in the complaint
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were (1) Jishan Johar @ Jaanbaaz @ Abhas Abdul Gani, resident of Pakistan and the addressed shown was Nar Nanak Kalerbadi, District Gujranwala, Punjab, Pakistan, (2) Amjad Ali @ Salim @ Chandu @ Raj Kumar; (3) Javed resident of Poona and (4) a lady terrorist, whose name and address was not known. It may be recorded that thereafter, it has come out that accused No.3 was Javed @ Praneshkumar Pillai and the lady was Ishrat Jahan Raza. 4. The investigation of the said complaint was City. Judge, the assigned to Ms.Parixita on Court Gurjar, an said 5 of the Act A.C.P. Mahila, Crime Branch, Ahmedabad Further, Pota 14.7.2004, by 4 and the and for application was made to the designated investigating officer for addition of chargeunder Sections Explosive Prevention appears that Substances Act of when was in part
offence under Section 4 and 53 of the Terrorism the was (hereinafter referred to as 'POTA). It substantial and to be yet investigation investigation completed
completed, at that stage, the mother of deceased Ishrat Jahan named Mrs.Shamima Kausar Criminal Mohammed preferred No.822 Special of 2004, Application
challenging the action

by the police
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contending that her daughter has been killed Bureau referred in of to the prayed 'CBI' to of case made fake to for carry the with in encounter, Central sake out of the (hereinafter the therefore, direct
Investigation
convenience) investigation registering prayer is
complaint them. the The said
registered with DCP, Ahmedabad City by the also
petition to direct the State to provide adequate compensation to the petitioner but, of course, no arguments whatsoever were made by for the the learned petitioner Counsel on the appearing
said aspect at all at the time of final hearing of the can be said the restricted matter. Therefore, it that case the petitioner to direct
the investigation by CBI as per above referred prayer only.
3.Thereafter,
there
was
magisterial
inquiry
under Section 176 of Cr. P.C., by Mr. Tamang, the then Metropolitan Magistrate Magistrate the and the
learned
recorded
findings,
which were taken note of by this Court in the above referred judgement at paragraph 41, the
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relevant of which reads as under:-
41
But the matter does not end there on
the aspects of other findings recorded by the learned Magistrate based on; (1) the
presence of well developed rigor mortis on the body of the deceased at the time of postmortem; (2) the ballistic report for the use of the bullet; (3) non-availability of the signs of gun-powder in the hand-wash
report; (4) the entry and exit wounds of the bullet marks on the the body bullet of the person on the
concerned; vehicles,
(5)
marks
4.
The
learned
Magistrate
thereafter
had
opined that the encounter was not genuine and there was a conspiracy by the police officers concerned to earn benefits in service. The
report of the learned Magistrate also came to be considered in the aforesaid judgement with the challenge made to it and this Court at
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paragraph
78
deduced
the
conclusion,
the
relevant of which for the purpose of deciding the present controversy is at paragraphs
78(5) to 78(11), which reads as under:78. In view of and the aforesaid the
observations
discussions,
following conclusion can be deduced :(1) xxx (2) xxx (3) xxx (4) xxx (5) There is no material on record
before us of malice or malafide on the part which of the State us police to officials, the
may
lead
transfer
investigation to CBI only. (6) The investigation as fully so far cannot by the
be said
satisfactory
I.O., and/or Additional DGP as observed in the judgement. (7) There is a report of the
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Metropolitan
Magistrate
under
Section
176 of Cr. P.C., which expresses the view/finding, if considered would make the encounter non-genuine or fake one. The views of the learned Magistrate on the other aspects are without material on record as observed in the judgement. (8) In view of of I.O., the two and
contradictory findings Additional DGP
vis-a-vis
findings
of the Metropolitan Magistrate in the report under Section 176 of Cr.P.C., on the aspects of the genuineness incident of the
encounter,
deserves
further investigation. (9) In order to instill confidence and to provide credibility and to do to the
investigation
complete
justice, the investigation deserves to be made by Special Investigation Team, as constituted by this Court, as
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observed in the judgement herein above under Article 226 of the Constitution of India. The concerned Government or the establishment is bound to comply
with the directions of this Court and to provide all necessary
infrastructure. (10) The members of SIT or SIT work
under the orders of this Court. Hence, alteration in the composition or
constitution of new SIT, if this Court finds it proper, cannot have
demoralizing effect, but can be termed as a transfer of work/assignment
simplicitor. (11) As one SIT is already functioning for sensitive riot cases as per the
orders passed by the Apex Court, same SIT, subject to the change, if any,
made by the Apex Court, deserves to be entrusted the work of investigation in order to instill confidence and
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credibility to the investigation.
5.
This
Court
further
passed
the
order
issuing directions, the relevant of which is at paragraph 79(b) as under :-
79. In the result, the following orders :(a) xxx (b) Special Criminal Application No.822 of 2004 and Special Criminal Application
No.1850 of 2009 shall stand allowed to the extent of constitution and assignment and
transfer of the investigation to the SIT as observed judgement with C.R. herein for above in the in present
investigation of 2004 DCB
connection 15.6.2009 Station,
No.8 with
dated Police
registered
Ahmedabad City. It is further observed that SIT shall be at liberty to take all the steps in accordance with law for
investigation transferred to it and it shall also have the power to take action in
furtherance thereto in accordance with law.
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The State Government is directed to issue necessary orders in this regard within two weeks from the date of receipt of the order and the said SIT shall submit the report within Court. three The months other thereafter made to by this the the
prayers to
petitioner,
including
transfer
investigation to CBI are not granted.
6.
It appears that, thereafter in Criminal
Misc. Application No.9832 of 2010 preferred by one of the original petitioners, Gopinath Pillai, Father of the deceased Praneshkumar Pillai @ Javed Gulammohammad Shaikh of
Special Criminal Application No.1850 of 2009, this Court observed vide order dated
24.9.2010 at paragraph 8 to 14 as under:-
8. However, the second ground for review and recalling of the order for constitution of SIT and to assign the investigation to the SIT for Riot The cases, said may call would for get
consideration.
ground
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strengthened by the inability expressed by the SIT for Riot cases itself, as reflected from its letter dated 30.08.2010, on the
basis of which the proceedings of Criminal Misc. Application No.10621 of 2010 have been initiated. 9.The situation, as it emerges from the
record, is that on the date when this Court passed the judgment and the order on
12.08.2010, this Court had assigned the work for investigation of the present case to the members of the SIT constituted by the Apex Court because they were already functioning in the State with all infrastructure
available with them, for investigation of crimes, may be of specified cases marked to that SIT by the Apex Court. But, it appears that if the very up SIT the for Riot cases is the
unable
to
take
investigation,
consequences may arise that either no result may come out for which the directions have been issued by this Court or in the
alternative, it would not serve any purpose
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whatsoever.
In
normal
circumstances,
when
this Court has exercised power under Article 226 of the Constitution, the provisions of CPC for review of an but order the would not
automatically
apply
principles
analogous to the provisions of CPC can be made applicable to the proceedings of this Court under Article 226 of the Constitution. Further, if any situation has emerged on
account of any unwillingness shown by the SIT for Riot cases to take up the
investigation as ordered by this Court, the same can be considered as a valid ground for review and/or recalling the order to the
extent of constitution of the said SIT. It appears to us that considering the facts and circumstances, and more particularly, in
view of the contents of the letter dated 30.08.2010 addressed by SIT for Riot cases, coupled with the observations made by the Apex Court in the proceedings of Special
Leave to Appeal (Crl.) No.7132 of 2010 vide order dated 06.09.2010, there would be valid
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ground for review and recalling of the order to the extent of constitution of a new SIT. At this stage, we may refer to the
observations made by the Apex Court in the above referred order, the relevant extract of which reads as under: ....In the meanwhile, the High Court shall be at liberty to consider the application stated to have been filed on behalf of SIT expressing its inability to undertake the investigation in terms of the directions
issued by the High Court. The High Court shall also be at liberty to pass a an
appropriate agency for
order
constituting of the
proper in
investigation
crime
question. 10. Under these circumstances, we find that inability expressed by the SIT constituted by the Apex Court to undertake the
investigation in the present case could be termed as a valid ground for review and to recall the order for assigning the
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investigation of the present case to that SIT for Riot cases. 11. The aforesaid would lead us to consider the question for constituting another SIT. In order to consider the aforesaid aspects, we may refer to the relevant observations of this Court made in Paragraph-74 of the above referred deserves judgment to be about the SIT the which
constituted,
relevant
portion of which reads as under: Therefore, we find that if a broad based SIT is constituted, which would be in a
position to investigate into the incident by collecting data from various States, which are concerned and through the Police of
various States, it would be not only more convenient, but would be more practicable and would help to trace the truth for the alleged incident. ... ... ... Under these circumstances, we find that it would be just and proper to include the
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officers from outside the State as well as one, who was in or the is holding Central very Bureau high of
position
Investigation. 12. It may also be observed that at
Paragraph-75, it was interalia observed as under: ....We may observe that when the Apex Court in such highly sensitive matters in the riot cases in the State of Gujarat, which include the Police Officers of the State, has found it proper to assign the work of
investigation to the aforesaid SIT, the same team can be entrusted the work of the
investigation of the present case and such would instill confidence and credibility to the investigation to do complete justice to the parties and thereby protecting the
fundamental rights of the citizens. 13. Keeping the aforesaid observations in
mind, if a broad-based SIT is constituted, it would serve the purpose and would be in
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furtherance
of
the
cause
for
which
the
investigation is so ordered by this Court. 14. In order to consider the officers who can be included in SIT, we had called for the names from the applicant Mr.Pillai,
State of Gujarat, as well as the Union of India, through their respective counsel and we had also given opportunity to Ms.Shamima Kauser, petitioner of Special Criminal
Application No.1850 of 2009.
7.
Thereafter, this Court further considered
the matter to deal with the arguments and the contentions raised by the State, including
that of assigning the work to the Special Task Force and induction of any officer other than that of State Team Cadre (SIT in for the Special and
Investigation
short)
further proceeded to constitute a new SIT. The relevant aspects of the said order (dated 24.9.2010 in Cr. Misc. Application
No.9832/2010) reads from paragraph 20 to 25 as under:CRIMINAL MISC.APPLICATION/15981/2010 01/07/2013 01:36:20 PM

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20. It is hardly required to be stated that a judgment or order of the High Court in exercise of the power under Article 226 of the Constitution cannot be nullified by any executive action of the Government, be it a policy matter or constitution of a Special Task Force or the constitution or of the
Monitoring
Authority,
otherwise.
Therefore, once this Court having recorded the findings a for constitution of a SIT and
having
particular
character
composition, such decision on the part of the State can hardly be considered as a
valid ground to recall the observations made for constitution of SIT, thereby instilling confidence and credibility these to the
investigation.
Under
circumstances,
based on the Notification, such suggestion cannot be accepted. Further, when this Court has already ruled for inclusion of certain officers in the SIT, unwillingness on the part of the State for induction of any
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officer of IPS cadre from outside the State can neither be countenanced nor endorsed. We may record that the Constitution provides the competence of any State or the Union or any constitutional authority, including the judiciary, for protection of the rights of citizens and controls the exercise of power by any executive. prevails in In our a Federal nation, structure once this
which
Court has exercised the power under Article 226 of the Constitution, and has ruled for assigning the investigation to a broad-based SIT, such reservations expressed on behalf of the State cannot be countenanced by this Court. The aforesaid is coupled with the
circumstance that State has not filed any review application for recalling of the
order. Further, even if the State, for the reasons best known to it, is desirous of constituting Monitoring the Special Task Force be or a
Authority,
it
may
made
applicable to other cases, namely, encounter cases other than the one considered and
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examined by this Court in exercise of the power under Article 226 of the Constitution. Further, if such aspect is considered, it may also indirectly dilute the observations made by this Court in the judgment and also by the Apex Court, permitting the High Court to constitute a new SIT. Hence, we find that such ground should not operate as a bar or by way of a second thought for non-
constitution of the SIT and the assignment of investigation to it. (Emphasis supplied) 21. Having considered the above, and after taking into consideration the names of the officers given by different parties, we find that the new SIT for the present case shall comprise of the following officers: 1. Shri Karnail Singh IPS 1984 Batch One of the officers nominated by the Union of India out of the list of 5 officers. 2. Shri Mohan Jha IPS 1985 Batch at present posted in Gujarat State
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Nominated as one of the officers by the Gujarat State out of list of 11 officers. 3. Shri Satish Varma IPS 1986 Batch posted in Gujarat State one of the officers nominated from the
list of 4 officers given on behalf of the applicant - Shri Gopinath Pillai. 22. The issue State Government is directed to
necessary in
orders, this regard,
including within a
Notification,
period of two weeks from the date of receipt of the order. 23. The investigation of I-C.R.No.8/2004
dated 15.06.2004 registered with DCB Police Station, Ahmedabad City, shall be
transferred to the SIT constituted by this order. It is further observed that the said SIT shall be at liberty to take all steps in accordance with law for investigation
transferred to it and it shall also have
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power to take action in furtherance thereof, in accordance with law. The State shall
provide necessary infrastructure to the said SIT. 24. It is further observed and clarified
that the SIT so constituted by the present order shall not take any
assistance, directly or indirectly, of the officers of any rank of the State Police, if they are involved directly or indirectly in connection with the present incident of
encounter, which is to be investigated by them. 25. The other directions for investigation and submission of the report issued vide
judgment and order dated 12.08.2010 shall remain the same. (Emphasis supplied)
8.
It is only after the constitution of the
aforesaid SIT (hereinafter referred to as the First SIT for the sake of convenience), the implementation of the directions, issued vide
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judgement
dated
12.8.2010,
for
transferring
and assigning of the investigation, actually started.
9.In
the
present
application
on
28.1.2011,
this Court found that there were differences of opinion amongst the Members of the SIT; mainly Mr.Satish Verma and, therefore, this Court passed the further order, the relevant of which reads from paragraphs 3 to 5 as
under:3. It prima facie appears that because of certain difference of opinion amongst the members appoint of any SIT, the as prayer amicus is made to for
lawyer
curiae
giving opinion on the legal issues involved in it while in the course of investigation or may be thereafter. 4. It also appears from the counter
affidavit filed by Mr.Satish Verma, one of the member of SIT that there are differences of opinion amongst the members of SIT, may be on account of no hierarchy formed in the
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order passed by this Court or mode expressly not provided for resolving the difference of opinion. It also appears that as per one of the member of SIT, Mr. Satish Verma, when he wanted to investigate certain aspects, the view was expressed by the other members that unless the issue is discussed and
unanimously resolved, the investigation may not be made in this regard. Such has
resulted into the present matter. 5. In order to see that the spirit of the
order passed by us for unearthing the truth on the aspects as to whether it is a genuine encounter or a fake encounter and in order to see that the SIT so constituted can work with discipline and may be in a position to resolve the issues, may be on the aspects of investigation or on legal issues, we find that the following directions deserves to be issued (1) Mr.Yogesh S.Lakhani, Senior Advocate,
is appointed as amicus curiae for rendering all legal assistance to the SIT. Office
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shall
communicate
the
present
order
to
Mr.Lakhani. As regards the professional fees of Mr.Lakhani for the service which may be rendered, the State Government will have to bear the fees and the expenses but the
quantification shall be made as and when the bills are received or the report State is so
submitted.
Provisionally,
the
shall
deposit the amount of Rs.20,000/- with the SIT towards legal expenses and in turn, the said amount as and when required or so
instructed by the amicus curiae, shall be disbursed by SIT to Mr.Lakhani, subject to further orders which may be passed by this Court for quantification of expenses upon the legal advice or legal proceedings etc., if any. (2) The SIT shall have the following
discipline amongst it :
A)
Mr.Karnal Singh, IPS, shall be the
Chairman of SIT - Mr. Mohan Jha, IPS and Mr.Satish Verma, IPS shall be the members of
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SIT. B) Generally, the decision shall be taken
by SIT after discussion with all the members and if there is unanimity, the said decision shall be acted upon without any hesitation. If any member of the SIT expresses a
dissenting view, it would be open to the SIT to proceed in accordance with the majority view. But at the same time, the dissenting view shall be taken note of. The aforesaid is with the express observation that in the mode and manner of investigation, such would apply. C) So far as the field of investigation is SIT shall in be the guided by the dated
concerned, observations
made
judgment
12.08.2010. We may broadly state that SIT has to keep in mind three aspects; one would be the FIR already registered, another would be the area or the points over which the view has been expressed by the learned
Magistrate in the inquiry made under section 176 of the Cr.P.C. and the third would be as
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to
whether
it
is
genuine
or
fake
encounter. No compromise on any point on the aforesaid three aspects shall be made while undertaking the investigation by the SIT, be it a majority view or a minority view. D) In the field of investigation, SIT
shall be at the liberty to take decision. If any legal issue arises which the majority of the members of SIT finds to be resolved, it would be open to the SIT to seek legal
assistance of the amicus curiae by way of opinion or otherwise. E) We express the view that all members of
the SIT shall work with a team spirit in order to realise faith which has been
reposed by the Court for investigation and all sincere attempts shall be made, of
course within the bounds of law, to reach the truth of the subject matter for which the investigation has been so ordered. All clues directly or indirectly touching to the spirit of the order shall be investigated so as to bring it to its logical end.
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(3) As matter
we may
find
that
certain the
incidental SIT is
arise
while
investigating into the matter, it would be just and proper to direct the SIT to submit the progress report every two months. (4) It will be open to the SIT to intimate the names of any officer or witnesses who are to be interrogated or who may be the witness in connection with the incident to post them at a place where they are not required to work under the higher officers who are also directly or indirectly involved in the incident and the State shall act
accordingly upon intimation so received from SIT. (5) S.O. to 08.04.2011 for reporting
progress and further order. 10. The pertinent aspect is that this Court
observed that certain incidental matters might arise while SIT is investigating into the matter and, therefore, this Court found that it would be just and proper to direct the SIT to submit a progress report every two months.
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11.
The matter further came to be considered on
8.4.2011 and having found that in spite of the requisition Officers made by SIT the concerned by the Police State
were
not
transferred
Government, this Court passed the further order as under :1. The report submitted by Mr.Mohan Jha, one of the Members of the SIT is considered. The pertinent aspect is that in spite of the earlier direction given by this Court in the order dated 28.1.2011 at paragraph 4 of the said order, requisition was made by SIT for transfer of certain police officers and as per the said report, Mr.P.P. Pandey, Mr.G.L. Singhal and Mr.Tarun Barot have not been
transferred so far. 2. We may record as per the order dated
28.1.2011 at para 4, it was ordered thus:4.It also appears from the counter
affidavit filed by Mr.Satish Verma, one of the member of SIT that there are differences of opinion amongst the members of SIT, may be on account of no hierarchy formed in the
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order passed by this Court or mode expressly not provided for resolving the difference of opinion. It also appears that as per one of the member of SIT, Mr. Satish Verma, when he wanted to investigate certain aspects, the view was expressed by the other members that unless the issue is discussed and
unanimously resolved, the investigation may not be made in this regard. Such has
resulted into the present matter. 3. Under these circumstances, the
aforesaid officers as requisitioned by SIT shall be posted at different places by way of transfer so of as SIT to have the the smooth
functioning
and
aforesaid
directions shall be complied with within one week. 4. It further appears from the report that
the investigation by the SIT is not very satisfactory. The Chairman of SIT, Mr.Karnal Singh appears to be available only on few days, may be on account of his assignment at different places. Similarly for Mr.Jha and
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Mr.Satish reports each of
Verma,
there for the
is
no
separate taken is to by be
prepared them. If
action
the
progress
considered in toto, we find that it is not up to the expectation of the Court of the investigation well in time. 5. Hence, with a view to ensure that the is geared up and properly
investigation
channelized so as to unearth the truth at the earliest, we direct that each Member of SIT shall submit separate report about the contribution made by him in the functioning of SIT. Such report shall be submitted in the sealed cover. In addition to the above, as the present report is not found to be satisfactory, a fresh report shall be
submitted by incorporating the gist of the investigation, if any, made, including after referring witnesses to on the the statement aspects of the about keythe
genuineness of the encounter or otherwise. 6. It was reported that some complaints
were filed against one of the Members of the
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SIT, Mr.Satish Verma, who in furtherance to the investigation, had seized certain
records of FSL and others. As such when the Members of the of SIT this are acting any under the
directions
Court
complaint
against the functioning of any Member in the course of such investigation is required to be reported to this Court and no attempt should be made for creating any hindrance or obstruction in the investigation, may be by way of the decision of the majority of the Members of SIT or even minority view through any single Member of SIT. 7. the It is hardly required to be stated that complaint is being already C.R. No.8/2004 dated DCB and, is
15.6.2009 Police
registered
with
Station, when
Ahmedabad the
City
therefore,
Investigation
transferred to SIT, including the Members of SIT, they would be for all purpose
functioning in connection with the said FIR for further of investigation Code of as per the
provisions
Criminal
Procedure
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read with the orders of this Court. 8. Hence, be no impediment by made or obstruction in or the its
shall
created to be
anyone by SIT
investigation
Members, may be minority view or majority view, if the attempt is to get all clues investigated for reach the truth. 9. All the on aforesaid or before reports 20.4.2011 shall at be 2.30
submitted
p.m. S.O. to 21.4.2011 at 4 p.m. 10. The aforesaid direction qua transfer of the officials shall be communicated by the learned Advocate General. 11. Office to supply copy of the petition and the order as required by Mr.Lakhani, who has been appointed as Amicus Curiae.
(Emphasis supplied)
12. The pertinent aspect is that this Court found that the investigation by SIT was not satisfactory and in order to gear up the
functioning of the SIT and to channelize the functioning to unearth the truth at the
earliest, each member of the SIT was directed

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to
submit
separate
report
about
the
contribution made by him in the functioning of SIT and it was also observed that attempt should be made not to create any hindrance or obstruction in the investigation, might be by way of decision by the Members of the SIT, or even made by any single member of the SIT. It was also observed that all attempts should be made to get all clues including, might be by minority or majority, so as to reach the truth and the direction was also given for communication of the order for transferring of the State Police Officers through Advocate General.
13. The matter further came to be considered by this Court on 21.4.2011 and it was found that Mr.Karnal at Singh, Chairman he had of SIT was his
posted
Mizoram to
and
shown
inability assignment.
continue
with
the
present
Therefore, Mr.Karnal Singh was
allowed to be relieved as Chairman of SIT,
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but
since
it
was
noticed
that
there
were
differences of opinion in the mode and manner of investigation, were the duties amongst as of the the the
Members
demarcated. not affected
Further, in spite
transfer was
requisition made by the SIT, this Court also found that there was non-compliance of the order passed by this Court by the State the and
Government concerned
and,
therefore, to
called
upon
Officer
submit
reply
explanation before concluding on the aspect whether action should be initiated under the Contempt of Courts Act or not. The matter
was considered and the following order was passed on 21.4.2011:1. As per the order dated 08.04.2011
passed by this Court, all the reports have been submitted. and We have gone through the the
reports thereof.
have the
considered
contents is at a
Since
investigation
crucial stage, we find that the contents of the reports are not required to be recorded
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since
to
do
so
would
prejudice
the
investigation. 2. However, three pertinent aspects are
required to be recorded qua each member of SIT. One is that Mr. Karnail Singh, Chairman of the SIT, who has been posted at Mizoram, has shown his inability to continue with the present assignment. We have gone through his report and we find that the difficulty being faced by him appears to be genuine. Of
course, he has also stated other aspects in the report which, at a if required, stage. shall be
considered
later
Under
these
circumstances, we allow Mr.Karnail Singh to be relieved as Chairman of SIT. Since we may be required to induct another member as SIT who may be the Chairman, or otherwise, as per his seniority in the IPS cadre, we keep that aspect open. It is directed that the Union of India, through Mr.P.S. Champaneri, on the next date, shall communicate names of other officers who may be spared for
inclusion in the present SIT.
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3.
The second aspect is that on account of
the non- availability of the Chairman, SIT shall now comprise of two members, namely, Mr.Mohan Jha and Mr. Satish Verma. 4. We have seen the individual report of
both the members and we find that there are various differences of opinion in the mode and manner of investigation. Further, we
have seen from the report that if there is no separate demarcation of duties, it may hamper the smooth investigation. Therefore, we find it proper to demarcate the duties of both the members of SIT. However, it is
clarified that the demarcation of duties by this Court may not be taken to mean that there is a perception that any officer is either working properly or not working
properly. However, demarcation of duties is essential with a view to streamline any the
investigation therein. 5.
without
impediment
We have heard both the members of the
SIT. Considering the facts and circumstances
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and
having
gone
through
the
reports
submitted by the members of SIT including Chairman, Mr. Karnail Singh, we find that the investigation through SIT shall be
looked after in the following manner: (1) Mr.Mohan Jha shall look after the
administrative work being member of SIT. (2) Mr.Satish Verma shall look after the
actual and further investigation of the case which is already at to stated vide order no.7, dated i.e.,
08.04.2011 pertaining
paragraph complaint
being
C.R.No.8/04
dated 05.06.2004 registered with DCB Police Station, Ahmedabad. 6. 7. Hence, SIT shall work accordingly. It was submitted by Mr.Lakhani, amicus on of behalf the of SIT of that SP/DIG since level no is
curiae officer
rank
available, it would help the member of SIT to further investigate the matter if such an officer is spared by the State Police
Department. We leave it to the discretion and decision of the member of SIT who has
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been
assigned
with
the
work
of
investigation. If he finds it proper, he may requisition the officer of his choice who is not connected with the incident directly or indirectly. Upon the requisition being made by him, the State Government shall spare
that officer for assisting the member of SIT for investigation. 8. It has been further stated that the
report of the Central Forensic Laboratory as well as AIIMS may take some time,
approximately four weeks. An attempt shall be made by requisitioning both the
authorities to submit the reports earlier, preferably within a period of two weeks, if possible. The order of this Court shall be communicated to the Central Forensic
Laboratory as well as AIIMS. 9. is Another aspect which we need to record that when we passed the order dated
08.04.2011, it was already mentioned that SIT had requisitioned transfer of certain officers including Mr.P.P. Pandey, Mr.G.L.
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Singhal and Mr.Tarun Barot pursuant to our order dated 28.01.2011. In spite of the
requisition made by SIT, the said officers were not transferred There are by certain the State
Government.
materials
which, prima facie, suggest that this has affected the investigation. Not only that, after the order dated 08.04.2011 was passed by this Court, the State Government was
required to take immediate action. In spite of the same, the said officers have been transferred on 19.04.2011, just one day
prior to the date on which the reports were to be submitted. at para 3 The of pertinent the aspect is
that
order
dated
08.04.2011, it is clearly stated that the directions were to be complied with within one week. However, it prima facie appears that until the visit of the members of the Central Forensic Laboratory and team of
AIIMS, the transfer orders were not passed. Prima facie, the said action on the part of the State, in spite of the specific
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direction by this Court, can be said to be in breach and non-compliance of the
direction of this Court. However, upon the inquiry further made by the Court, it has been reported that by the learned Singh, Advocate Additional is the the facie
General Chief
Mr.Balwant Home to before
Secretary, who
Department, comply we
authority direction.
had
with
Hence,
prima
conclude on the aspect as to whether it is a case for initiation of action under the
Contempt of Courts Act for breach and noncompliance to the order of this Court, an opportunity may be given to the said officer to submit his reply and explanation, if any, and thereafter, appropriate action may be initiated, Mr.Balwant if required. Singh, Hence, we direct Chief
Additional
Secretary, Home Department to submit a reply and explanation, if any, as to why
proceedings under the Contempt of Courts Act should alleged not be initiated and for committing of the
breach
non-compliance
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directions transferring
issued certain
by
this
Court officers
for as
police
requisitioned by SIT, pursuant to the order passed by this Court. Such explanation shall be submitted on, or before, 11.05.2011. 10. It has been submitted on behalf of the SIT that NIA has been requested to supply certain reminders, SIT. 11. Hence, we direct that NIA shall supply the requisite two details as desired by SIT details have which, not been in spite to of the
supplied
within
weeks.
Mr.Champaneri,
learned
Assistant Solicitor General has agreed to communicate Mr.Champaneri the has order submitted to the NIA.
that
whatever
information is available will be supplied if there is no legal impediment, and if there is any legal impediment, the same shall be reported to this Court, on the next date. 12. Mr.Saiyed appearing on behalf of
Shamima Kausar wanted to tender an affidavit claiming to contain certain factual
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narrations of events that transpired at the office of SIT, when the complaint was
tendered by Shamima Kausar. 13. We find that the said aspect need not be looked into at this stage. If she is so desirous, the same may be submitted to the SIT who shall look into the matter, in
accordance with law. 14. S.O. to 12.05.2011 at 2.30 p.m.
Mr.Champaneri shall submit the names of the suggested officers on that day. 15. Before parting with this order, we may observe that the work which has been
undertaken by Mr.Karnail Singh as Chairman of SIT, as transpires from his individual report, is found to be satisfactory by us and we record a sense of appreciation. 16. The reports submitted by the members of SIT shall be kept in a sealed cover, in the safe custody of the Registrar General.
(Emphasis supplied)
14. It appears that thereafter on 12.5.2011,
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the
matter
once
again
came
up
for
consideration and upon the name suggested by the Union of India for the Chairman of SIT in place of Mr.Karnal the Singh, SIT and this passed Court the
reconstituted
following order, the relevant of which reads from paragraph 4 onwards:4. Mr.Sinha has left the matter to the
Court, whereas on behalf of the State of Gujarat, some reservation was shown for
officer at Sr. No.3, Shri Rajesh Ranjan. As the choice and options are available, we
find that we need not go into the aspects of reservation expressed on behalf of the
State. Dr. Satyapal Singh, even amongst the officers nominated is the Senior Most
Officer and he is, in any case, senior to the remaining both the members of SIT.
Hence, we find that Dr. Satyapal Singh, IPS (MH:80) can be nominated as the Chairman of SIT. Consequently, SIT now shall comprising of the members as under:-
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(a) Dr. Satyapal Singh, IPS (MH:80) shall be the Chairman of SIT (b) Mr.Mohan Jha, IPS Member of SIT (c) Mr.Satish Verma, IPS Member of SIT 5. In view of the full-fledged
constitution of SIT, the functioning of SIT shall now be as per the order dated
28.1.2011, vide paragraph 5 and the detailed direction given therein, save and except
that in place of Mr.Karnal Singh, IPS as the Chairman, Dr. Satyapal Singh, IPS shall be the Chairman. Hence, ordered accordingly. It is observed that in view of the aforesaid direction now bifurcation of the work as
specified vide order dated 21.4.2011 as per para 5 and 6 would no more survive. The State shall issue necessary Notification for such purpose within one into week. the SIT matter shall and
further
investigate
submit the report on or before 23.6.011 in a sealed cover. The report shall be submitted to the Registrar (Judicial), High Court of
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Gujarat. 6. As per the above referred order dated
21.4.2011, it appears that the affidavit has been filed by Mr.Balwant Singh, IAS,
Additional Chief Secretary, Home Department. We may observe that the affidavit is not with the details about the role played at every level by the concerned officer from the date on from order which SIT was the requisition the sanction by the was for
received transfer
until
granted
State
Government. We may record that unless and until date-wise details with the role played by the officer concerned for pursuing the matter or not pursuing the matter with the name of the officer concerned is given, it may be difficult for the Court to hold the responsibility, if such question arises in future Further under in the Contempt thereof of it Courts Act. be
absence
cannot
termed as sufficient explanation. We would have directed the said Officer to file the affidavit, however, on his behalf
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Mr.Trivedi,
learned
Advocate
General
has
stated that such affidavit shall be filed on or before 23.6.2011. Hence, we direct that the said affidavit with the aforesaid shall accordingly be filed before this Court on or before 23.6.2011. 7. It was next contended by the learned
Advocate General on behalf of the State by tendering the affidavit of Shri Rahul Gupta, IAS working as the Deputy Secretary, Home Department, stating that the State has
formed the monitoring authority to be looked after for the functioning of the Special
Task Force in all encounter matters and it was submitted that as now SIT could not
function effectively, the investigation be handed over to Special Task Force working under the monitoring authority by this Court for the alleged incident of encounter in
question. 8. We are on unable part when to of the appreciate the said such a
stand
the
State, aspect
more was
particularly
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already considered by us in the order dated 24.9.2010 in Criminal Misc. Application
No.9832 of 2010, which has been disposed of and the SIT was constituted vide the said order. We may record that similar arguments and contentions were raised when we
considered the aspects of reconstitution of SIT vide order dated 24.9.2010 in Criminal Misc. Application No.9832 of 2010. It was observed by the Court at para 17 to 20, which reads as under:17. After the aforesaid exercise was
completed but before this Court proceeded to pass the order for constitution of new SIT by including the names of the officers which this Court may find proper, the learned
Advocate General pressed into service, the affidavit dated 20th September, 2010, filed by Mr.Rahul Gupta, Deputy Secretary of the Home Department, contending that the State Government has issued a Notification dated 16.09.2010 Authority for and constitution Special of Monitoring Force for
Task
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investigation of the police encounter deaths and it was also submitted that the Chairman of the Monitoring Authority may be a retired Honourable Judge of the Supreme Court of
India or a retired Honourable Judge of the High Court of Gujarat. 18. It may also be recorded that in
Paragraph-8 of the affidavit, it has been stated on behalf of the State Government as under: 8. I respectfully say and submit that under the circumstances, my liberty while to respectfully for the
reserving
press
reliefs prayed for in the Special Criminal Application filed by the State of Gujarat and reiterating the prayer that in view of the changed circumstances, that is to say, SIT of riot cases having expressed Court may its be
inability,
this
Honourable
pleased to permit the Special Investigation Team, constituted by this Honourable Court earlier, to complete the investigation under
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the vide
monitoring
authority, dated
as
contemplated or the
notification
16/9/2010
investigation in question may be ordered to be completed by vide the same Special Task Force dated
contemplated
notification
16/9/2010 under the monitoring of the said Monitoring Authority. In the respectful
submission of the State, the said course of action would not only instill confidence and credibility in the investigation, but would result into a complete justice to all the parties rather than constituting an agency having officers of different police forces since such a course of action has an inbuilt risk of inevitable confusion in the
investigation for various reasons. 19. When the learned Advocate General
Mr.Trivedi was called upon to clarify the stand of the State Government on the aspects of constitution of new SIT by this Court, it was declared by the learned Advocate General that the attempt on the part of the State Government is by way of a suggestion that
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the
investigation
may
be
assigned
to
the
Special Task Force who is to work under the Monitoring Authority instead of new SIT
comprising of the other officers who, in the submission of the learned Advocate General, could be officers from outside Gujarat
State. It was submitted that there is no attempt on the part of the State to nullify the effect of the judgment of this Court but the Notification for constitution of Special Task Force may be considered as one of the options available to the Court instead of constituting a new SIT. He also submitted that prior to the Notification for dated of
16th September,
2010,
constitution
Special Task Force and Monitoring Authority, the Government has already given the names of the officers reserving its rights and
contentions in the SLP pending before the Apex Court. Therefore, it was submitted that the said aspects may be considered before passing further order. 20. It is hardly required to be stated that
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a judgment or order of the High Court in exercise of the power under Article 226 of the Constitution cannot be nullified by any executive action of the Government, be it a policy matter or constitution of a Special Task Force or the constitution or of the
Monitoring
Authority,
otherwise.
Therefore, once this Court having recorded the findings a for constitution of a SIT and
having
particular
character
composition, such decision on the part of the State can hardly be considered as a
valid ground to recall the observations made for constitution of SIT, thereby instilling confidence and credibility these to the
investigation.
Under
circumstances,
based on the Notification, such suggestion cannot be accepted. Further, when this Court has already ruled for inclusion of certain officers in the SIT, unwillingness on the part of the State for induction of any
officer of IPS cadre from outside the State can neither be countenanced nor endorsed. We
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may record that the Constitution provides the competence of any State or the Union or any constitutional authority, including the judiciary, for protection of the rights of citizens and controls the exercise of power by any executive. prevails in In our a Federal nation, structure once this
which
Court has exercised the power under Article 226 of the Constitution, and has ruled for assigning the investigation to a broad-based SIT, such reservations expressed on behalf of the State cannot be countenanced by this Court. The aforesaid is coupled with the
circumstance that State has not filed any review application for recalling of the
order. Further, even if the State, for the reasons best known to it, is desirous of constituting Monitoring the Special Task Force be or a
Authority,
it
may
made
applicable to other cases, namely, encounter cases other than the one considered and
examined by this Court in exercise of the power under Article 226 of the Constitution.
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Further, if such aspect is considered, it may also indirectly dilute the observations made by this Court in the judgment and also by the Apex Court, permitting the High Court to constitute a new SIT. Hence, we find that such ground should not operate as a bar or by way of a second thought for non-
constitution of the SIT and the assignment of investigation to it. 9. The pertinent aspect is that when this expressly ruled that by executive
Court
action the judgement or the order of the High Court in exercise of the power under Article 226 of the Constitution of India
cannot be nullified, be it policy matter or be it constitution of Special Task Force or constitution of monitoring authority or
otherwise and when it was further observed that even if the State for the reasons best known to it, is desirous to constitute
Special Task Force or monitoring authority, it may be made applicable to other cases namely; the encounter cases other than the
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one considered and examined by this Court in exercise of the power under Article 226 of the Constitution of India, there was
absolutely no necessity on the part of the State or its Officer to file such an
affidavit. The another aspect is that the aforesaid order dated 24.9.2010, whereby the aforesaid contentions were negatived and SIT was constituted, was carried before the Apex Court and no interference has been made.
Under these circumstances, the approach on the part of the of State to re-agitate the
the question
transferring
investigation to the Special Task Force can hardly be canvassed and we deprecate the
same. In all fairness, it was expected for the State to wait till induction of the
Chairman of SIT, who may be officer from the Central Government and the submission could have been made thereafter, but it appears that the stand of the State as was earlier, which has been negated, is to see that the investigation may be assigned to the Special
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Task
Force.
We
leave
the
matter further
at but
that the
stage,
without
observing
fact remains that as per the above referred direction issued by us, full-fledged SIT has been constituted and, therefore, in any
case, there is no reason to take a different view as sought to be canvassed. 10. We may only record that the SIT, which is constituted shall be given all assistance by the State Officers and any impediment in the function of the SIT in any manner, shall be reported to this Court. 11. We may also record that Shri Girish
Laxman Singhal and others have preferred SLP (Cr.) No.9489 of 2011 before the Apex Court, but vide order dated 11.5.2011, the Apex
Court has clarified that its earlier order dated 3.5.2011 shall not preclude the High Court from hearing the matter and to pass appropriate orders. However, it is clarified that the present order, in any case, shall be subject to the order that may be passed by the Apex Court in the aforesaid SLP.
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(Emphasis supplied)
15. The again on
matter
came
to and
be at
considered that stage of
once Dr. SIT
24.6.2011 Singh,
Satyapal
the
Chairman
(hereinafter referred to as the Second SIT for the same of convenience) certain be tendered a and the
letter prayed
expressing that he
difficulties relieved as
might
Chairman of SIT and the Court had passed the following orders:1.The sealed cover report is considered. As per the report we find that, there was some delay on account of the non-relieving of the officer Dr.Satyapal Singh by Maharashtra
Government and he could not take over the charge, but it is appears in that thereafter, The report
investigation
progress.
also shows that the further investigation including the team of expert is to be
consulted and the report is to be received. 2. for Hence, the matter could be considered granting time for submitting the
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progress report. However, we may record that Dr.Satyapal Singh, Chairman who is
personally present has tendered letter dated 24.06.2011 through private advocate Mr.
Mihir Thakor with M/s. Singhi & Co., and has expressed certain difficulties about the
language and also for interrogation of one of the batch mate of him, viz., Mr.P.P.
Pandey. He has also shown reservation about difference of opinion between other two
members of SIT and therefore, he has prayed that he may be relieved as Chairman of SIT. 3. As such, of it SIT was to required make such for the
Chairman
request
including the letter to the amicus curiae Mr. Yogesh Lakhani who is already appointed by the Court to assist SIT as and when
required including in the proceeding of this Court. That apart, we may also record that when this Court considered the matter for appointment of the Chairman vide order dated 12.05.2011, the view of the Central
Government was taken into consideration and
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at para 2, it was observed as under: Pursuant to the earlier order, Mr.P.S. Champaneri, learned Assistant Solicitor General on behalf has of the the Central names of
Government
tendered
three officers; (1) Dr. Satyapal Singh, IPS (MH:80), (2) Shri J.V. Ramudu, IPS (AP:81), and (3) Shri Rajesh Ranjan,
IPS (BH:84) and he declared before the Court that as per the instructions
received by him from the Ministry of Home Affairs, Government of India, any officer so nominated by this Court will devote full time for ensuring that the investigation earliest. 4. Thereafter, consideration having the taken of into the is completed at the
assurance
Central Government and also the view of the learned Dr. as Assistant Satyapal Chairman. It Solicitor Singh is was hardly
General, appointed
required to be stated that the officer
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so nominated by the Central Government working their in the cadre of IPS have though been
services
might
allocated to the State, it is within the power of the Central Government to make them to discharge the duty which the Court may assign after concurrence or after considering the views of the Central Government. In all fairness,
the said officer could have moved the Central Government in this regard or
through the Assistant Solicitor General also. Be as it may, when the aforesaid is put to Mr.Champaneri, learned
Assistant Solicitor General, he stated that at the relevant point of time, his instructions were that Dr.Satyapal
Singh would be the proper officer to ensure that the investigation is
completed at the earliest and that is why, before that he made submission He of accordingly submitted aforesaid
the in
Court. view
also the
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reservation shown by Dr.Satyapal Singh, he would like to have the views of the Central Government in this regard and he seeks one week time. 5. Considering the progress report, we
find that as the team of experts is to visit and in any case further
investigation by SIT should not be put on the grinding halt. Central
Government shall clearly report to this Court about the Singh continuation or otherwise of for
Dr.Satyapal
nomination of any other officer if it is of the view that the said officer should be permitted to be relieved. 6. The progress report shall be submitted in sealed cover on 14.07.2011. S.O. to 15.07.2011. 7. It is further directed that in the the
investigation meantime.
shall
continue
8. The sealed cover report shall be kept in the safe custody of the Registrar
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(Judicial). (Emphasis supplied)
16. Thereafter, on 15.7.2011, on behalf of the union of India, it was prayed to exempt Dr. Satyapal Singh from the SIT and the names of other officers, This including Court passed SIT Mr.Ramdu the by were
offered. order Mr.J.V. for
following appointing of SIT
reconstituting as the
Ramudu
Chairman
(hereinafter referred to as the Third SIT for the same of convenience) and the
following order was passed :1. As per the last order dated 24-06-2011 SIT has submitted the Progress Report of the Investigation. The said Report be kept in the safe custody of the Registrar
(Judicial). 2. This court in the aforesaid order at para 5 had observed: Considering the progress report, we
find that as the team of experts is to visit

and
in
any
case
further
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investigation by SIT should not be put on the grinding halt. Central
Government shall clearly report to this Court about the Singh continuation or otherwise of for
Dr.Satyapal
nomination of any other officer if it is of the view that the said officer should be permitted to be relieved. 3. Today, Mr.P.S.Champaneri, learned
Assistant Solicitor General has tendered the communication dated 14-07-2011 received by him from the Government of India, Ministry of Home Affairs, conveying that Dr.Satyapal Singh, IPS, of may SIT, be exempted Gujarat, has from in the his three
membership place, the
and
Ministry
identified
Officers, as below: (1) Shri J.V.Ramudu, IPS (AP: 81) (2) Shri Rajesh Ranjan, IPS (BH: 84) (3) Shri R.C.Arora, IPS (MP: 79) 4. We have for heard the the learned counsel as
appearing well as
original
petitioner
learned
Advocate
General.
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Considering
the
facts
and
circumstances,
Dr.Satyapal Singh, IPS, is relieved as the Chairman of SIT, in view of the aforesaid communication from the Central Government. 5. The next aspect to be considered is to make appointment of another Chairman in his place. The name of Shri J.V.Ramudu, IPS (AP: 81) was already there in the earlier list and he was the person next to Dr.Satyapal Singh in the said list. 6. Mr.Champaneri, learned Assistant
Solicitor General has categorically made a statement, upon telephonic instructions from the Joint Secretary, who is signatory of the letter dated 14-07-2011, that the consent of the concerned State Government is taken by the Central Government and even Officer
concerned has also been conveyed for that purpose. The Central Government assures the Court that if the appointment is made by this Court, the said Officer shall take up the duty immediately and will complete the investigation as assigned to SIT.
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Mr.Champaneri,
learned
Assistant
Solicitor
General, has also stated that so is the case of Shri Rajesh Ranjan, IPS (BH: 84), but for Shri R.C.Arora, IPS (MP: 79), consent of the concerned State is yet to be received since the correspondence is on. 7. Under the circumstances, we find that
Shri J.V.Ramudu, IPS (AP: 81) be appointed as the Chairman of SIT, Gujarat. Hence,
ordered accordingly. 8. The State Government shall issue
necessary Notification in this regard on or before 19-07-2011. The said officer shall join the duty immediately upon the
publication of the Notification and continue with the investigation in light of the
earlier orders passed by this Court. 9. As it has been stated on behalf of SIT, that the Report from FSL, New Delhi, may take some time, we find that the matter can be posted after some time. In the meantime, let the Reports be received from the experts of FSL, New Delhi, as well as AIIMS, New
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Delhi,
and
the
investigation
be
also
continued further. The progress Report shall be submitted in the sealed cover, on or
before 04-08-2011. 10. S.O. to 05-08-2011 at 2:30 p.m. 11. It is observed that SIT shall ensure that appropriate protection is extended to the witnesses and if any requisition is made by SIT to the State for providing extra
protection to the witnesses, the same shall be made available by the State Government.
17. Thereafter,
Union
of
India
filed
an
application being Criminal Misc. Application No.10244 of 2011, contending that Mr.Ramudu, who was appointed as Chairman of SIT, would not be in a position of to his take up the and,
assignment
because
ailment
therefore, the prayer was made to consider the name of another officer to be the part of SIT. The said application came to be
considered by this Court on 19.7.2011 and the following order was passed :-
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1. Leave
to
correct
the
name
of
Mr.J.V.Ramudu in place of Dr. Satyapal Singh on page 6 para 4 as well as leave to correct the description of Mr.R.R. Verma, IPS as
(BH:81) and Mr.R.C.Arora, IPS as (MP : 79). 2. Rule. Mr.Lakhani Sinha for for opponent No.2 No.1, and
Mr.Mukul
opponent
Ms.Sangeeta Vishen, learned APP for opponent No.3 waive notice of Rule. 3. The present application is preferred by
the Union of India with a prayer to vary and/or to modify the order dated 15.07.2011 passed by this Court in Criminal Misc.
Application No. 15981/10 so as to consider the name of other officer to be a part of the Special Investigation Team (SIT for short). 4. We have heard Mr.Champaneri, General learned the
Assistant
Solicitor
for
applicant, Mr.Lakhani for SIT, Mr.Sinha for opponent No.2 and Mr. Kamal Trivedi, learned Advocate General with Mr.Prakash Jani,
learned PP with Ms.Sangeeta Vishen, learned
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APP for the State. 5. It appears that the assurance on behalf
of the Central Government was recorded by this Court and this Court acted upon the same, and thereafter order dated 15.07.2011 came to be passed whereby Mr. J.V. Ramudu, IPS (AP: 81) was appointed as the Chairman of SIT. When the application is moved, the learned Advocate General has also tendered the copy of the notification dated
18.07.2011 for reconstitution of SIT as it was so directed by this Court to issue the notification on or before 19.07.2011. 6. The circumstances as narrated in the
application at paragraph 4 reads as under: 4. that The the applicant states and of submits is
applicant-Union
India
compelled to bring certain developments to the notice of the Hon'ble Court with regard to the nomination of a member of the SIT. The applicant states and
submits that the Chief Secretary, State of Andhra Pradesh, on 18.07.2011 has
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conveyed India to
to
the the IPS
applicant-Union effect (AP: has that, 81),
of
Shri M.O.S. a
J.V.Ramudu, (Member rare and of
Service)
underwent for the
complex
surgery of
cardioright
maxilo mandible
facial at
surgery Naryana
Hrudayalaya,
Bangalore on 12th May, 2011 and in view of the serious nature of the surgery and regular post operative checkups, he was Two been July, in Bangalore till 30th May, reviews and a 2011. have early severe
such held
post-operative during and
Mid-June there is
2011
limitation and his food intake as well as speech due to resurrection of the right under mandible severe and that he is DGP still has, about
pain.
The to
therefore,
requested
inform
the inability of the MoS to serve on the SIT on genuine medical grounds. In view of the aforesaid facts and of
circumstances,
the
applicant-Union
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India regrets the inconvenience caused to this Hon'ble Court in selection of a member of the SIT as new facts have now come to the knowledge of the Government which were not known earlier. The
applicant also states and submits that in light of of the the delicate nominated IPS (AP: medical Officer 80), the
condition Dr.Satyapal
Singh,
applicant-Union of India submits that under the given circumstances, the said Officer may not be available to be a part of SIT. 7. We find that of the officer Mr. J.V. of
Ramudu
because
physical
ailment
cardio-maxilo facial surgery, he is required to undergo regular medical checkup and
therefore, the desire has been shown by the Union of India to the effect that he will not be in a position he to take up the for
assignment
because
has
limitation
food intake as well as in speech and he undergoes severe pain also for the said
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injury. Even otherwise also, if the officer concerned has no inclination or zeal to work as the Chairman of SIT, he will not be able to bring about the result as expected by the Court while ordering investigation through SIT. 8. Under the circumstances, we find that
it would be a case to change the Chairman of SIT, but subject to taking serious note of the conduct and approach on the part of
Union of India as may be stated hereinafter. 9. Concerning to the appointment of the
new officer, the details have been given in the application at para 5 (after correction as permitted) as under: (a) Shri R.R. Verma, IPS (BH : 78). The Officer is on Central deputation since 10.02.2009 and currently posted as ADG, CISF. He has expressed his willingness to work as a member of SIT. (b) Shri R.C. Arora, IPS (MP : 79).
Written concurrence of the officer and from the DGP, Madhya Pradesh is
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available.
Formal
concurrence
of
the
State Government is awaited. (c) Shri Vivek Dubey, IPS (AP: 81).
DGP, Andhra Pradesh, has telephonically conveyed his concurrence for deputation of the officer for this assignment. The officer has also expressed his
willingness. A proposal is being sent by DGP, AP to State Govt. in this
regard. 10. We find that in past when the officer of the IPS Cadre working in the respective State Government was appointed, it has
created problem in functioning of SIT, may be on account of non-availability of
concurrence of the State Government or for the personal circumstances of the officer concerned through which possibly Central
Government or the State Government concerned are not in a position to prevail over so as to enforce the duty cast upon him/them. 11. In unhappy our view, of such is also If a very Union
state
affairs.
the
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Government is unable to command the officer when a mandate has been given by this Court, it will never bring about were the truth by for this
which
the
direction
issued
Court. We leave it at that stage on the said aspect, but it appears to us to appoint an officer who is directly working under the Central Government not concerned with the State Government so as to ensure that he takes up the duty at the earliest and he undertakes the work with full zeal and with spirit with which he has to work as Chairman of the SIT. It appears that out of the
aforesaid three officers, Mr.R.R. Verma, IPS (BH : 78) has expressed his willingness to work as member has of also SIT and the Central to
Government
shown
willingness
nominate him for the duty to be performed as Chairman/member in the SIT. 12. Further, it appears that he is working as an Additional D.G. under CISF, which is a paramilitary force of the Union of India, expected with more degree of discipline.
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13. Hence, Mr.R.R. Verma, IPS (BH : 78) is appointed as the Chairman of the SIT in
place of Mr.J.V.Ramudu, IPS (AP: 81). The necessary notification shall be issued by the State Government The said on or before shall
22.07.2011.
officer
immediately take over the duties within one week thereafter as and per proceed the with the
investigation earlier.
order
passed
14. The earlier order dated 15.07.2011 in Criminal Misc.Application No.15981/10 shall stand modified accordingly. 15. However, before parting with, we find it proper to take serious note of the way in which the officers were earlier nominated by the Union of India and more particularly the last nomination of Mr.J.V.Ramudu, IPS (AP : 81). We need not reproduce the assurance
given on behalf of the Central Government as the same is already a part of the record of the order dated 15.07.2011. But prima facie, it appears that Mr. Champaneri, learned
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Assistant Solicitor General, acted on the instructions communication received dated by him which vide was
14.07.2011
tendered to the Court at the relevant point of time addressed by Joint Secretary to the Government of India to Mr.Champaneri and as recorded in paragraph 6 of the earlier order dated 15.07.2011, before making statement, the instructions were conveyed by the to Joint
Mr.Champaneri
telephonically
Secretary, the very officer who is signatory of the said communication Mr.Diptivilasa.
The another pertinent aspect is that in the very communication 3, there has dated is the a 14.07.2011, note that of at the the
paragraph
communication
approval
competent authority in this Ministry which normally may be the Secretary, Ministry of Home Affairs, Union of India. 16. If there found is by a casual Court approach or it in any would this
ultimately attempt attract to
this this
mislead
Court, action
further
serious
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regard. We hardly need to record that the sanctity of the proceedings and orders of this Court are required to be respected by one and all and the first it should come from the Union of India which is a Union Government. If the sanctity of the
proceedings before a constitutional court is not maintained by the Union of India, it would stake democratic structure itself of the nation. In our prima facie view, in
order to see that nobody is allowed to have foul play with the Court proceedings or any callous or casual approach in the matter, this Court the will have no of option the but to and
maintain
authority
Court
stern action may be called for. 17. However, before taking further decision in this regard, we find it proper to give opportunity to the Secretary, Ministry of Home Affairs as well as the Joint Secretary, Mr. Diptivilasa to submit their written
explanation separately with the documentary proof thereof about the process of file
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stagewise and the vacuum if any during the period in the said movement of the file and the communications thereof. The Secretary, Ministry of Home Affairs shall also in the said affidavit report to this Court about any remedial measure if the Government of India is desirous to take. 18. Such explanations shall be submitted on or before 05.08.2011. 19. S.O. to 05.08.2011 for further order.
18. The relevant aspect is that, in place of Mr.Ramudu, Mr.R.R. Verma was appointed as the Chairman of the SIT and a new SIT was
constituted (hereinafter referred to as the Fourth SIT for the same of convenience).
Further on account of the casual approach on the part of was the Union to of be the India, an
explanation before further this
ordered to the
submitted, Court to the
Court
enable matter,
consider
maintain
authority of the Court and take stern action in this regard.
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19. Gopinath Pillai original petitioner of Special Criminal Application No.1850 of 2010 had preferred the application being Criminal Misc. Application No.10011 of 2011 for the
reliefs, inter alia, to remove Dr. Satyapal Singh as Chairman of SIT and further to hold an inquiry as to how the witnesses were
influenced to retract from their statements and other reliefs regarding the progress of the investigation, etc. The said application
came to be considered by this Court and the following order was passed on 5.8.2011:1. The present application has been
preferred by the application original petitioner of Special Cri. Application
No.1850 of 2009 for seeking appropriate directions, hereinafter. 2. We have hard Mr.Mukul for Sinha, the learned which shall be referred to
Counsel Mr.Kamal General
appearing Trivedi, with
applicant, Advocate learned
learned Jani,
Mr.P.K.
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Government
Pleader
for
the
State
and
Mr.Lakhani, learned Counsel for SIT. The presence of CBI is not required at this stage. 3. It appears that the first prayer for
removal of Dr. Satyapal Singh as Chairman of SIT would no more survive on account of the subsequent development vide order passed by us in Criminal Misc.
Application No.15981 of 2010, whereby Dr. Satyapal Chairman Singh of SIT has and been relieved Verma as has
Mr.R.R.
been appointed as the Chairman and he has also taken over as the Chairman of SIT. 4. The second aspect, which has been pressed in service is to direct the inquiry as to how the witnesses their were influenced and to the
retract
statements
appropriate action against the person(s) concerned, retracting who of is the responsible statement of for the
witnesses. The learned Counsel in support of the said submission, has relied upon
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the statement made in the application at paragraph 1.k and 1.l, which has been
stated as under:(1.k) It is submitted that Shri Satish Verma, IPS on had filed a in detailed Criminal of 2010
affidavit Misc.
27.1.2011
Application
No.15981
pointing out several acts and omissions on the part Singh of as the well Chairman as the Shri other
Karnail
Member Shri Mohan Jha, which were not assisting him in the proper
investigation of the case. In paragraph 14.2, Shri Satish Verma has clearly
pointed out that one Motibhai Taljabhai Desai had given statement that would be severally damaging the FIR version of the incident. In paragraph 16, it is pointed out to was that there that with were Shri the
circumstances Mohan Jha
indicate connected by
retraction
statement
Motibhai
Taljabhai Desai and also the filing of
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the
complaint
against
Shri
Satish
Verma. Similarly, it is learnt that the statements of other witnesses,
including one Police Driver, Shri Shiv Singh, which were recorded by SIT, have also been retracted later on. In a news item published by the Times of India dated that 12.7.2011, several it has been stated
witnesses
have
retracted
their statements. It would thus, appear that taking advantage of the inaction on the part of the the in Chairman, proposed Shri
Satyapal have
Singh,
accused and
been
active
influencing
coercing the witnesses to retract their statements, which were implicated. (1.l) In the aforesaid facts and
circumstances, an impression is created in the mind of the applicant that the investigation being conducted by SIT
till now has yielded no concrete result and on the contrary, the conduct of the two Chairmen have led to the deliberate
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delay in taking action. It also appears that the investigation sabotaged want to The statements would is by scuttle being the the
systematically persons, who
investigation. retraction witnesses of that
systematic of the the
implicate
police officers is being carried out by the and interested persons. In the facts the
circumstances, has for moved
therefore, the the
applicant application
present order
reviewing
dated 12.5.2011 and modifying the same to remove the Chairman Shri Satyapal
Singh from the Chairmanship of SIT and appoint Shri Ramudu or any other Police Officer, who can effectively conduct
the investigation.
4. We
find
that in as
there
is
considerable submissions filed by
substance inasmuch
the in
aforesaid
the
affidavit
Mr.Satish Verma, one of the Members of the SIT dated 27.1.2011 in Criminal Misc.
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Application No.15981 of 2010, it has been stated at paragraph 5.3 as under:5.3 I state that Shri Mohan Jha had mentioned what he did(as quoted in para 10 of my note reproduced above) on
25th December, 2010 afternoon after he had received a phone call. It is not known to me who called him with that input. The complaint of shri Moti Talja Desai, Head Constable, was received
later in the evening by the applicant. So it is clear that somebody who knew about the complaint even before it was given to the applicant had informed
Shri Mohan Jha about it. Earlier also, when a subordinate DySP, of on was Shri officer, Shri FS the at Shri it in had
Pathan, statement Mehsana
recording Raju Jeerawal 2010,
18thDecember,
Mohan Jha had come from somebody the who
to know was
about
interested and
watching
investigation,
called up Shri Pathan to ask on whose
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instructions called.
Raju
Jeerawala
had
been
5. We may also record that at paragraph 5.4

he stated, thus, the relevant of which reads as under:5.4 I must elaborate that Shri Moti Talji Desai, Head Constable, was
examined by all the three officers of the SIT in the Senior Police officers Mess, Duffnala, 2010 hrs. Shahibaug from This on
22nd December, 2210 to 2250
approximately witness was
specifically told by the applicant that he is not being promised anything, and that whatever he says may also make him liable. made all Thereafter, the of the witness A Shri had
disclosures. Delhi named
Police Sunil
Inspector
Mittal, who was brought along by the applicant, was also present. Then the applicant and Shri Mohan Jha had left after telling me that his statement may be recorded. I had done that from 2300
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hrs to 0150 hrs of 23rd December, 2010 and then video recorded the witness
reading his statement and confirming it to be a true record of what he stated. I specifically add that the gist of
that statement is nothing but what the witness had said in the presence of the applicant and Shri Mohan Jha. ...
6. The other part may not be relevant at

this stage.
7. We take serious note that two important

aspects; one is the statement made by the witnesses Shivsingh important involved required in to Mr.Moti and Talji who Desai are the It that is and the issue hardly the
others,
witnesses the be
for
matter. stated
once
statement is made by any person before a police officer in the investigation and thereafter if the retraction is to be
made in normal course, it is to be in the Court. before If the subsequent very statement officer is made an
police
or
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officer successor in office, at least one statement goes wrong or rather would be false and can be stated as misleading to a Government Officer and also to some
extent, it can also be said to assist or help the accused to get away from the
clutches of law. In such circumstances, it would also be an offence under IPC and other relevant provisions. As we can
notice that two Members of SIT namely; Shri Satish and Verma, had recorded an the
statement
thereafter
allegation
has been made against Shri Mohan Jha for playing role in helping the retraction of the statement or at least helping the
witnesses to back out from the statement, we find that the Chairman of SIT, Mr.R.R. Verma himself should investigate the said aspect. During it the course be of for the the
investigation,
will
Chairman of SIT to find out whether any person has played any role in maneuvering the witness or helped him to get the
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statement
retracted
and
thereby
to
frustrate a valuable piece of evidence of the investigation the SIT said will or not. While the to
undertaking Chairman of
investigation, be at if liberty
interrogate,
including,
required,
after arrest, custodial interrogation of the person concerned. He will be at
liberty to take help of the officer of his choice for investigation and be it mentioned that none of the other Members of SIT shall be but if he involved with finds a any in note such of
investigation, caution, that
serious
material against any of the Members of the SIT having played any role in the
aforesaid episode, he shall not take any action against the said member, but shall submit a report in sealed cover to this Court for such purpose.
8. As we have recorded earlier, there was a

rift between the two Members of SIT
namely; Shri Mohan Jha and Shri Satish
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Verma. We have in our earlier order with a view to see that SIT functions with all discipline Force, as expected that the the SIT for a Police and the
stated of
functioning shall be in
discipline
manner as stated in sub-paragraph (2) of paragraph 5 of the order dated 28.1.2011 in Criminal Misc. Application No.15981 of 2010, save and except that the Chairman of SIT now is different. We have also
considered the subsequent report tendered in sealed cover of individual members of SIT and the Chairman of SIT when SIT was comprising of Shri Karnal Singh being the Chairman, Verma Mr.Mohan Jha In and Mr.Satish reports
being
Members.
those
also, we find that there was substantial disagreement between the two Members of SIT namely; Shri Mohan Jha and Shri
Satish Verma. We may not deal with the contents in detail, since the conclusion on the aspects as to whether the
encounter was genuine or fake is yet to
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be arrived at, but the aforesaid facts at least lead us to assign more power and duties upon the Chairman of SIT, who is an Officer of the Central Government from a Paramilitary earlier Force. order Hence, and we modify the
the
direct
functioning of the SIT as under:(a) sole the The Chairman of to SIT will be decide the
officer
finally to be
about out
investigation
carried
either by himself or through an officer whom he may find it proper to get the issue investigated. The other members
of SIT will have right to express the opinion, Chairman but to it will be for the final
ultimately
take
decision in the matter. We may clarify that such investigation shall be on the aspects other than referred to herein above for the episode of recording the statements of aforesaid witnesses and
retraction thereof by them. (b) The Chairman of SIT will have right
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to
decide
the
mode
and
manner
of
investigation, the mode and manner for taking help of the State machinery or any other Governmental Authority, but
as observed earlier, the Members shall be at liberty to express the views but the final decision shall be taken by the Chairman. (c) The Chairman of SIT shall submit report in a sealed cover of the further investigation. He may record different views, if any, of the other members on the aspects, if touching to the
issue(s) involved. (d) The Chairman of SIT shall be at
liberty to take help of Amicus Curiae in the event of any complication in law or guidance on the legal aspect is
required.
9. The aforesaid
shall
be
the
manner
and
method of further functioning by SIT. As the report of the experts namely; AIMS and Central Forensic Laboratory is yet to
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be received and as new Chairman has taken over recently, on we the find above some that the
investigation aspect would
referred we,
take
time,
therefore, find it proper to give time up to 7th September, 2011. By this time,
sincere and full efforts shall be made by SIT to complete the investigation and the report cover shall on be submitted in a sealed the the
8thSeptember, and, the
2011
about of
progress
conclusion
investigation, if any.
10.We
may
record
for
the
purpose
of
clarification that during the course of investigation, if the officer so finds it proper, he shall have all powers as
available with the Investigating Officer under Cr.P.C., including for of making in
search,
seizure,
arrest
etc.,
accordance with law.
11.It
appears
that
in
view
of
the
aforesaid direction, the prayer D of the application for submission of separate
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report is not called for at this stage. Further, as the aspects of genuineness of the encounter the and or fake is for yet to be of not
finalized, separate
prayer
filing is
independent
FIR
granted at this stage.
12.The
application
is
disposed
of
accordingly. The copy of this order shall be kept in the proceedings of Criminal Misc. Application No.15981 of 2010.
20. The present matter thereafter once again came to be considered on 9.9.2011 and this Court after pursuing the report of SIT in a sealed cover found it proper to issue
following directions, the relevant of which reads as under:2. Considering Reports, we find the it contents proper to of issue the the
following directions: (I) The State Police officers who are
directly or indirectly connected with the functioning of SIT shall not be transferred
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outside Ahmedabad until the work of SIT is completed. One officer Shri Mistri, who is stated to have been transferred outside
Ahmedabad, shall be re-posted in Ahmedabad and until State shall the not work be of carry transferred SIT is thereafter The
completed. the
shall
out
aforesaid
direction. (II) The Central Government officers, who have been requisitioned by the Chairman of SIT, shall join the duty at the earliest and all cooperation shall as be and rendered when it by is the so
Central
Government
desired by the Chairman of SIT. (III) The Board of Experts, to whom the
queries have been raised after receipt of the Report by the Chairman of SIT shall, at the earliest, reply and forward their
responses to the SIT within a period of two weeks. It will be open to the Chairman of SIT to communicate the order to the Board of Experts. (IV) Further action, if any required, shall
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also be undertaken by the Chairman of SIT and the same shall be completed preferably within two weeks thereafter. 3. on Attempt shall be made to submit Report the aspect or of genuineness so as of to the order be
encounter, further
otherwise, and the
action,
Report
shall
submitted on or before 05.10.2011. 4. S.O. to 07.10.2011 at 2:30 p.m. for
further orders.
21. Again the progress report was submitted on 7.10.2011 and this Court passed the
following order:1. The progress report of investigation is submitted by SIT. As per the report, certain further Experts queries and are there put is to the Board of of
likelihood
discussion before the end of this month. It further appears that 'psycho analysis' test is also to be conducted on the witnesses, who have retracted from their statements. 2. Under these circumstances, we direct
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that all such procedures be completed on or before 11.11.2011. Thereafter, all material will be considered by the SIT and the report shall be submitted on or before
18.11.2011. S. O. to 21.11.2011 at 2.30 p.m. The report submitted by the SIT be kept in a sealed cover in the safe custody by the
Registrar (Judicial), Gujarat High Court.
22.Thereafter, the said report (8th) has been submitted on 18.11.2011 by the SIT and the unanimous conclusion of SIT is as under:(I) The materials on record do not support the facts and circumstances mentioned in the FIR. (II) Analyses of the circumstances and the scientific evidence as detailed in the foregoing chapters, indicate that the incident as projected to have had
happened on 15.6.2004, does not conform to the ingredients in order of a to real police the
encounter,
justify
killings while exercising the right of
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self-defense
and,
therefore,
the
genuineness of the police encounter as tried to be brought out in the FIR, is quite suspect and lacks credibility,
suggesting that the encounter was not a genuine one.
23. We may state that the final report, which is the eighth progress report, concluding the aforesaid annexures, comprises but as of the 63 pages and of 11 the
disclosure
material therein at this stage may affect the investigation thereafter, to be undertaken in accordance with law, we have found it proper not to reproduce or refer to the findings on each point by the SIT. We only state that
the detailed investigation and the report as submitted progress by the SIT in to its final that (8th) the
report
goes
suggest
encounter was not genuine. 24. In view of the aforesaid facts and
circumstances, as further directions in this
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regard are called for to the SIT and further to put the law into motion, so as to reach its logical end, we have heard the learned Counsel appearing for the parties on the
aspect of registration of another/fresh FIR and also on the aspect of which Agency should be entrusted with the investigation thereof, namely; whether (a) State Agency; or (b) SIT itself; or (c) NIA; or (d) CBI. 25. We have heard Mr.I.H. Sayed, learned
Counsel for Samima Kausar the petitioner of Special Criminal Application No.822 of 2004, Mr.Mukul Sinha, learned Counsel for Gopinath Pillai Criminal Mr.Yogesh appointed Trivedi, Mr.Prakash original petitioner No.1850 of of Special 2009, Curiae Mr.Kamal with
Application Lakhani, by the
learned Court for
Amicus SIT,
learned Jani,
Advocate learned
General
Public
Prosecutor
assisted by Ms.Sangeeta Vishen, learned APP and Mr.P.S. Champaneri, learned Assistant
Solicitor General on behalf of the Union of

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India.
ANOTHER/FRESH FIR
26. The
first is
aspect that of
that the
deserves
to
be of
considered
registration
another/fresh FIR in view of the conclusion arrived at by the SIT unanimously, in its
final (8th) report. 27. Before we proceed to examine the factual aspects, we may first refer to the law on the subject. In case of Upkar Singh vs. reported
in 2004(13) SCC, 292, the Apex Court had an occasion to consider the aspect for
registration/filing of another/fresh FIR and at paragraph 17, it was observed as under:17. It is clear from in the the words above
emphasized
hereinabove
quotation, this Court T.T. Antony
in the case of &
vs. State of Kerala
Ors. has not excluded the registration of a complaint in the nature of a
counter case from the purview
of the
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Code. In our opinion, that case only by the held same the
this Court in any further or
complaint others
complainant same
against
accused, of a Code this
subsequent to the registration case, because is prohibited an under the in
investigation
regard would have already started and further complaint against the same on
accused will amount the facts mentioned
an improvement in the
original
complaint, hence
will be
prohibited This
under Section 162 of the Code. prohibition noticed
by this Court, in
our opinion, does not apply to counter complaint complaint a by the accused in the 1st or on his version behalf alleging of the said
different
incident.
28. Thereafter, in the case of Nirmal Singh Kahlon v State of Punjab and Anr., reported in (2009) 1 SCC, 441, the second FIR was
lodged by the CBI on a wider canvas based on
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the primary inquiry conducted by the CBI and after having and collected recording of large the number of
materials
statements.
The earlier FIR contained certain misdeeds of the individuals and there was no clear
reference to the commission of the crime by the office-bearers of the Panchayat in the selection process and the aspect came up for consideration incidentally before was for the Apex examining Court the It was
maintainability of the second FIR.
observed by the Apex Court at paragraph 67 as under:67. The second FIR, in our opinion, would
be maintainable not only because there were different versions but when new discovery is made on factual foundations. Discoveries may be made by the police authorities at a
subsequent stage. Discovery about a larger conspiracy can also surface in another
proceeding, as for example, in a case of this nature. If the police authorities did
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not make a fair investigation and left out conspiracy purview of aspect its of the matter from in the our
investigation,
opinion, as and when the same surfaced, it was open to the State and/ or the High Court to direct investigation in respect of an
offence which is distinct and separate from the one for which the FIR had already been lodged.
29. The
question
once
again
came
up
for
consideration before the Apex Court in the case of Rubabbuddin Sheikh v. State of
Gujarat and Others, reported in (2010) 2 SCC, 200, wherein the facts could now be said as similar to the facts in the present case , as may be stated by us hereinafter and the same can be traced at paragraph 1 of the said
decision, which reads as under:1. Acting on a letter written by the writ petitioner, Rubabbuddin Sheikh, to the Chief Justice of India about the killing of his brother, Sohrabuddin Sheikh in a fake
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encounter and disappearance of his sisterin-law Kausarbi at the hands of the AntiTerrorist Squad (ATS), Gujarat Police and Rajasthan Special Task Force (RSTF), the
Registry of this Court forwarded the letter to the Director General of Police , Gujarat to take action. This letter of the Registry of this Court was issued on 21.1.2007 (sic 21.1.2006). after General After about six months and
several of
reminders, Gujarat,
the
Director Ms.
Police,
directed
Geetha Johri, Inspector General of Police (Crime), to inquire about the facts stated in the letter. A case was registered as From 11.9.2006 to reports Solanki, were Police
Enquiry No.66 of 206. 22.1.2007 submitted four by one
interim V.L.
Inspector, working under Ms. Johri.
30. The Apex Court, after having taken into consideration the Eight Action Taken Reports and having found that the police authorities in the State had failed to carry out a fair
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and impartial investigation as envisaged by the Apex Court, and as no fresh FIR was filed despite the preliminary investigation, made observations under:68. From the above factual discrepancies
at
paragraphs
68
to
71
as
appearing in 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 was of grave nature which
needs to be strictly dealt with.
69. We have observed that from the record, it was found that Mr.V.L.Solanki, an
investigating officer, was proceeding in the right direction, but Ms.Johri had not been carrying out the investigation in the right manner, in view of our discussions made
herein above. It appears that Ms.Johri had
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not made any reference to the second report of Solanki, and that though his first report was attached with one of her reports, the same was not we forwarded are of the to this Court. her of
Therefore, mentioning
view
that
the
criminal
background
Sohrabbuddin and the discussion among the accused officers concerning Sohrabbuddin was meant to obfuscate the enquiry.
70. In crime
our was
view
the
investigation the
of
carried
out
dehors
mandate
contained in the Cr.P.C. and particularly Chapter XII containing Section 154-176 of the Code. There had been no fresh FIR filed despite primary investigation No. 66 to make the same the basis for investigation and
trial.
71. In
the
case
of
Sheikh
Hasib
alias
Tabarak v. The State of Bihar [(1972) 4 SCC 773], it was held that the object of FIR, from the point of view of the investigating
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authorities, is to obtain information of the alleged criminal activity so as to take
suitable steps for tracing and bringing to book the guilty party. Admittedly, the FIR dated 16th of November, 2005 which was filed following the alleged encounter was a
fabricated one and, therefore, it could not have formed the basis of the real
investigation to find the truth.
31. The aforesaid shows that if the FIR was filed for an alleged encounter and
subsequently in the investigation, the truth is found to be otherwise, including the
encounter not being genuine, it may call for filing of another/fresh FIR for commission of other crimes, resulting in the death of the persons, which may further be required to be investigated. 32.In case of Babubhai v. State of Gujarat, reported in 2010 (12) SCC, 254, on the aspect of filing of two FIRs, the Apex Court has
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elaborately
dealt
with
the
case
law
from
paragraph 13 onwards, after considering its earlier decisions in cases of Ram Lal Narang v. State (Delhi Admn.) (1979) 2 SCC (Cri) 479; T.T. Antony v. State of Kerala, (2001) 6 SCC 181; Upkar Singh v. Ved Prakash, (2004) 13 SCC 292, Rameshchandra Nandlal Parikh v. State of Gujarat, (2006) 1 SCC 732, Nirmal Singh
Kahlon v. State of Punjab, (2009) 1 SCC 441, and further observed at paragraphs 20 and 21 as under:20. Thus, in view of the above, the law
on the subject emerges to the effect that an FIR under Section 154 Cr.P.C. isa very
important document.
It is the first
information of a cognizable offence recorded by the Officer In-Charge of thePolice
Station. It sets the machinery of criminal law in motion and marks the commencement of the investigation which ends with the
formation of an opinion under Section 169 or 170 Cr.P.C., as the case may be, and
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forwarding of a police report under Section 173 Cr.P.C. Thus, it is quite possible that more than one piece of information be given to the Police Station Officer in In-charge of more of the same one
Police incident
respect one or
the than
involving
cognizable offences. 21. In such a case, he need not enter each piece of information in the Diary. All other information given orally or in writing after the commencement of the investigation into the facts mentioned in the First Information Report will be statements falling under
Section 162 Cr.P.C. In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out
whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is affirmative, the second FIR is liable to be quashed. However, in case,
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the contrary is proved, where the version in the second FIR is different and they are in respect of the the two second different FIR is
incidents/crimes,
permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counter claim, investigation on both the FIRs has to be conducted. Emphasis supplied
33.The aforesaid makes it clear that if the version of the first FIR or the allegation made in the first FIR about the encounter having taken place and life having been lost by the person concerned in such alleged
encounter that is not found to be genuine, the resultant effect would be that the death of the victims could have occurred at a
different place, different time and, may be, in a different manner. But it is undisputed
position that the concerned police officers have entrusted the dead-body of the deceased
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for the postmortem report and other inquest panchnama, etc. If the investigation already
made in connection with the FIR for the lives lost in the encounter reveals that lives were not lost in a genuine encounter, and if the ingredients of a genuine police encounter are not satisfied to justify the killings, and the credibility of the encounter itself is suspect suggesting that it was not genuine, then it would be a case for registration of another/fresh FIR, for commission of the
alleged crime based on the findings and the conclusion so recorded by the SIT as referred to herein above. 34. It is hardly required to be stated that if the deceased have not lost their lives in an encounter, in any case, it would make it a case for the death of the deceased through any action by the culprit other than that of so-called encounter. It may also result into
causing death of the person concerned through any mode or action of conspiracy or
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commission of crime, which will have to be investigated by the team of investigating
officers or the agency as may be considered proper by this Court. It is also hardly
required to be stated that if the action or the crime is for taking life of somebody or for causing death of somebody, it would be an offence under Section 302 of IPC and may also attract other offences of IPC or any other relevant provisions of law. to express any on concrete the said We do not wish or conclusive since the
observations
aspect
fresh/another FIR is yet to be registered and the investigation thereof is yet to take
place, and any observation made by this Court on the aspects of commission of crime at a place or in a mode or the manner other than that of an encounter, may also prejudice the rights of the alleged accused at different stages, including that of trial, if any such circumstances arise. We may also clarify
that the aforesaid observations are made only
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to record the reasons for requirement of the registration the premise of fresh/another the FIR based was on not
that
encounter
genuine.
Hence, it appears that appropriate
directions will be required to be given to the Chairman, SIT FIR for of registration the incident of in
another/fresh
accordance with law at a police station of the concerned area within whose jurisdiction alleged offence could be said to have been committed as per the investigation papers of SIT. The Chairman of SIT even if is not sure
about the exact place, the time and the date on which the deaths of the deceased have been caused, would be required to lodge the
complaint in a manner, which would enable the concerned investigating agency to further
investigate in the matter. 35. The learned Advocate General by relying upon the decision of the Apex Court in the case of Jakia Nasim Ahesan & Anr. v. State of
Gujarat & Ors., in Criminal Appeal No.1765 of
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2011 (decided on 12.9.2011) made an attempt to contend that in the said decision, the Apex Court did not permit the registration of another/fresh submission of FIR, the but report only to directed the the
concerned
Court, leaving the concerned Court to take further action in this regard and, therefore, it was submitted that when the FIR is already registered regarding the incident being C.R. No.8/2004, with the Crime Branch Police
Station, even if it has transpired in the investigation genuine, concerned such that the can encounter be filed is in not the
report
criminal court
and the concerned
Criminal Court may take action in accordance with law and this Court may not direct the registration of another/fresh FIR. 36. It appears to us that the contention is misconceived and the reliance is ill-founded, inasmuch as in the case before the Apex Court in the case of Jakia Nasim Ahesan & Anr. v.
State of Gujarat & Ors. (supra), FIR for the
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alleged crime regarding Section 302 of IPC and other offences was already registered
with Meghaninagar Police Station, Ahmedabad and after investigation, the charge-sheet was also filed against certain accused. Not only
that, but the case was already committed to the Court of Sessions, Ahmedabad.
Thereafter, during the course of the trial, the appellant before the Apex Court was
desirous of lodging another complaint against certain persons for the very offences. is not the fact situation in the Such
present
case.
Had it been a case where the encounter
was found to be genuine, which may involve other persons in addition to those, who are already shown in the complaint, it might
stand on a different footing and different consideration would have applied. In the
present case, the entire allegations in the FIR regarding loss of lives of the deceased in a police encounter are not found to be genuine. Therefore, once a conclusion is
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drawn that the encounter is not genuine, a case other is made out regarding the commission which of may
offences
under
IPC,
involve those police officers, who are stated to have taken the lives of the deceased in self-defence, in the police encounter. Under
these circumstances, the reliance placed upon the decision referred to by the learned
Advocate General is ill-founded. already into for observed by us after case
Further, as having taken
consideration registration
the of
law
prevailing FIR, we
another/fresh
find that since the nature of the incident and the alleged crime has come out to be
different on account of the encounter having been found to be non-genuine, registration of a fresh/another FIR would facilitate the
investigating machinery to locate the crime and the persons involved therein. Apart from
the aspect that in the event the charge-sheet is filed, there would be a proper base for the conduct of the trial. Therefore, the
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contention
of
the
learned
Advocate
General
does not deserve to be accepted. INVESTIGATION AGENCY 37. The next aspect is regarding which agency should conduct the investigation after
registration of another/fresh FIR as observed herein above. 38. Mr.Sayed and Mr.Sinha, learned Counsel on behalf of the original petitioners have
prayed that when SIT is already constituted, this Court may continue the investigation of another/fresh FIR also with the SIT. have contended by that the though it was They earlier the
prayed
petitioners
for
investigation through CBI, now they are not desirous to see that the investigation of
another FIR be made by CBI.
Therefore, they
submit that the same SIT be continued. 39. Whereas, Mr.Yogesh Lakhani, Amicus Curiae at the first instance submitted that he had no specific instructions through SIT or its Chairman on the aspects of investigation by
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it.
However,
at
later
point
of
time,
Mr.Lakhani made submissions so as to assist the Court and contended that the same SIT can be continued with the task of investigation after the registration of another/fresh FIR. 40. At this stage we may also state that
Mr.R.R. Verma, Chairman of SIT and Mr.Mohan Jha, another Member of SIT, declared before the Court during the course of hearing, that they are desirous of being relieved from the SIT because of various personal
circumstances.
As per the Chairman of SIT,
since his task of finding out the genuineness of the encounter, or otherwise, is complete he may be relieved. Whereas, Mr.Satish
Verma, the remaining Member of the SIT is not desirous to be relieved as a Member of SIT. It may be recorded that Mr.R.R.Verma has
given in writing vide letter dated 18.11.2011 addressed to the Registrar (Judicial) that he wants to be relieved. Further he has also
given in writing vide letter dated 21.11.2011
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that this Court may consider the closing of the Special Cell of SIT, since on the aspects regarding retraction of statements, custodial interrogation, carried out. 41. Mr.Lakhani also clarified that he is not making submissions upon instructions received from the Members of the SIT to continue with the investigation of by the SIT FIR, after but has etc. may be required to be
registration
another/fresh
made submissions only with a view to assist the Court. 42. Whereas the learned Advocate General
appearing for the State submitted that the first choice on the part of the State is the investigation of another/fresh FIR through
the State Agency. this Court finds
He has submitted that if it proper to give the
investigation
to an agency other than that
of the State, then in his submission, it may be given to NIA or CIB. However, the State
has various reservations and objections for
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the investigation to be carried out through the SIT, more particularly when one of the Members of the SIT namely; Mr.Satish Verma, is facing other charges in connection with another incident. 43. Whereas on behalf of the Union of India, Mr.Champaneri, General learned Assistant NIA Solicitor will have of
submitted only
that if the
jurisdiction
allegations
conspiracy to commit terrorist acts continue, and it does not result into only offences
under IPC. would be
It was submitted that the NIA willing but to its take over the is He
investigation, limited to the
jurisdiction offences.
scheduled
submitted that CBI is already over-burdened with many cases and its resources are already spread too thin. Moreover, a number of posts It the an
are vacant in the organization of CBI. was further submitted is not that in to case NIA,
investigation
entrusted
officer can be spared, who has atleast 4 to 5
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years' remaining period of service and who may be given powers of an SHO, who can be free to choose his own team for the
investigation, prosecution and trial, and the Government officer purpose. STATE AGENCY 44. As the first choice as per the State is the State agency, we find that the said of of the India rank can of identify a DIG, such for an
this
aspect deserves to be considered first. 45. In the in judgement Special of this Court dated
12.8.2010
Criminal
Application
No.822 of 2004, vide paragraph 78 of the said judgement (reproduced at paragraph 5 herein above) it was observed that the investigation by the I.O. and the Additional DGP was not satisfactory and it was also observed that to instill confidence and provide credibility to the investigation, is a must. It is true
that at the relevant point of time, there was no material on record before the Court
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regarding any malice or mala fide on the part of the officers of the State, therefore, the Court declined the transfer the investigation to CBI as was prayed However, can better by the petitioner subsequent narrated as
therein. circumstances under:-
the be
(1) In spite of the constitution of SIT by this dated Court vide above for attempt the referred the was judgement of the the its at
12.8.2010, an
purpose made by to in
investigation, State to
assign
investigation this Court
Special order
Task dated
Force
and
24.9.2010
(reproduced
paragraph 6 herein above) had observed that such decision on the part of the State or attempt can hardly be considered as a valid ground to recall the observations made for constitution of SIT. (2) In the aforesaid very order when the
reservation was shown by the State against the inclusion or induction of any officer of
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IPS Rank from outside the State, this Court had observed that such reservation cannot be countenanced and thereafter, this Court did constitute the first SIT headed by Mr.Karnal Singh as Chairman. (3) In the report of Mr.Karnal Singh dated 20.4.2011 vide paragraph 58, it was suggested that judicial inquiry or some other inquiry be conducted to unearth the forces acting
within the State, who are trying to hamper the impartial investigation and it was also stated that he is of the considered view that an impartial and fair inquiry is not possible by appointing to the officers the from case. the It State was
Police
investigate
proposed that either the three SIT Officers should be from outside be the State over or to the an
investigation
may
handed
independent agency.
In the very report at
paragraph 63 it was prayed by him that an inquiry be ordered to unearth the forces
acting within the State, who are trying to
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derail the investigation and are obstructing the impartial and fair investigation. It had
been stated that he is of the view that a fair and impartial investigation requires
that either investigation to be conducted by SIT Members from outside the State or by an independent agency. (4) This Court in its order dated 28.01.2011 (reproduced at paragraph 9 herein above) had to observe that it would be open to the SIT to intimate the names of the officers or the witnesses to be interrogated or those who may be the witnesses to the incident, and such officials shall be posted in a manner that they are not required who to work under the or
higher
officers,
are
directly
indirectly involved in the incident and the State was further directed to act accordingly upon the information so received from SIT. (5) This Court, in its order dated 8.4.2011 (reproduced at paragraph 11 herein above) had taken note of the fact that in spite of the
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direction issued earlier and the requisition made by the SIT for transfer of certain Pandey, they a to
police Mr.G.S. were
officers, Singhal,
namely; and
Mr.P.P.
Mr.Tarun and,
Barot,
not
transferred time-bound
therefore, was given
specific
direction
comply with the earlier order with one week. (6) When certain record of FSL was seized by Mr. Stish Verma, one of the members of the SIT, during the course of investigation, a complaint was filed against him without it having been brought to the notice of this Court, Court. and without the permission of this
In the aforesaid very order dated
8.4.2011, this Court had to observe that no attempt hindrance should or be made for creating in any the
obstruction
investigation. (7) In spite of the aforesaid direction to transfer certain police officers within a
particular time limit, the compliance was not made until the Board of experts visited and
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reconstructed the scene at the site of the incident and one of the officers Mr.G.S.
Singhal who played major role at that stage was prior otherwise thereto supposed was not to be transferred The
transferred.
aforesaid aspect of major role played by the said officer has also transpired in the 8th report of SIT. (8) The aforesaid (except the reference in 8th report of SIT) is taken note in the order dated 21.4.2011 (reproduced at paragraph 13 herein above). This Court thereafter in the
very order had to call for explanation of the Secretary of the home Department of the State Government before concluding on the aspects whether action be initiated under the
Contempt of Courts Act, or not. (9) Once again when the matter came to be considered (reproduced by at this Court on an 12.5.2011 attempt
14 hereinabove),
was made on the part of the State Government by way of suggestion that the investigation
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may be assigned to the Special Task Force, which is to work under the monitoring
authority instead of constitution of a new SIT and this Court had to decline such prayer in order to instill confidence and
credibility in the investigation by observing that the approach on the part of the State to re-agitate deprecated. (10) issue Again on 9.9.2011 this Court had to direction at to State 20 not the vide herein order above) the of such questions deserves to be
(reproduced that the
paragraph shall with
State connected
transfer functioning
officers
the SIT until the work of the SIT is over and one Mr.Mistry, shall who be has reposted already in been
transferred
Ahmedabad
and shall be continued until the work of SIT is over. (11) The investigation report of State
Police Officer namely; Ms.Parixita Gurjar is found to be not correct as per the
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investigation made by the SIT. (12) Further, all top, high officials of
the State up to the rank of the then DGP may fall within the with ambit the of investigation registration in of
connection
another/fresh FIR. 45. The aforesaid facts and circumstances, if considered, cumulatively, keeping in view the paramount confidence consideration in the of instilling and for
investigation
maintaining the credibility of investigation with the aim to book the real offenders, it appears to us that now it would not be a case to assign the investigation to the State
agency. SIT 46. On the aspects of investigation to be
made of another/fresh FIR by SIT, following aspects have transpired:(1) It was already ruled vide judgement dated 12.8.2010 in Special Criminal Application
No.822 of 2010 paragraph 78.10(reproduced at
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paragraph 4 herein above) that the Members of SIT or the SIT works under the control of this Court and or hence alteration of in new the SIT,
composition
constitution
cannot have demoralizing effect, but can be termed as a transfer of work or assignment simplicite. (2) This Court had taken note of the aspects in its order dated 24.9.2010 (reproduced at paragraph 7 herein above) that if the very SIT for riot cases is unable to take up the investigation, the consequence may arise that either no result may come out, for which the direction has been issued by this Court or in alternative it would not serve any purpose whatsoever. (3) This Court in the order dated 28.1.2011 (reproduced at paragraph 9 herein above) had
found that there were differences of opinion between the Members of SIT and the same was also reflected in the affidavit of Mr.Satish Verma and, therefore, this Court had to lay
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down the discipline amongst the Members of the SIT themselves and Mr.Karnal Singh was appointed as the Chairman of SIT and the
other two police officers were appointed as the Members of the SIT. (4) In order 11 dated herein 8.4.2011 (reproduced above) this Court at had
paragraph
recorded that the investigation of SIT was not satisfactory on account of the non-
availability of its Chairman Mr.Karnal Singh. (5) This Court in its order dated 21.4.2011 (reproduced at paragraph 13 herein above) had noted the fact that because of non-
availability of Chairman, Mr.Karnal Singh was permitted to be relieved, the duties were
required to be demarcated amongst other two Members of the SIT, since there were various differences of opinion in the mode and manner of investigation. (6) In the report of Mr.Karnal Singh dated 20.4.2011 he also opined and prayed for
investigation by SIT Members from outside the
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State or by an independent agency. (7) After Dr. Satyapal Singh having been
appointed as Chairman of SIT, this Court in its order dated 24.6.2011 (reproduced at
paragraph 15 herein above) had recorded that Dr. Satyapal Singh had expressed difficulties about the language and interrogation of
Mr.P.P. Pandey, who is his batch mate and had shown difference of opinion between two SIT members and, therefore, he had prayed for
relieving him as Chairman of SIT. (8) Thereafter, this Court vide order
dated 15.7.2011 (reproduced at paragraph 16 herein above) relieved Dr. Satyapal as the Chairman of SIT and appointed Mr.Ramudu in his place. (9) again The Union of India thereafter once prayed to substitute Mr.Ramudu by
another officer and this Court vide its order dated 19.7.2011 in Criminal Misc. Application No.10244 of 2011 (reproduced at paragraph 17 hereinabove) did observe that if the officer
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concerned has no inclination or zeal to work as Chairman of SIT he will not be able to bring about the result as expected by the Court SIT while ordering investigation through and, therefore, in place of Ramudu,
Mr.R.R. Verma was appointed as the Chairman of SIT (IO). In the aforesaid very order
this Court had to record the unhappy state of affairs namely as that the Union Government was unable to command its officers when a mandate was given by this Court. The Court
further recorded that such a situation will never bring about the truth for which the directions were issued by this Court. This
Court in the aforesaid very order had further taken serious note of the casual approach on the part of the Union of India and had issued directions calling upon the officer concerned to submit the explanation any further in this regard, to
before
taking
stern
action
maintain the authority of the Court. (10) This Court in its order dated
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5.8.2011
in
Criminal
Misc.
Application
No.10011 of 2011 had taken note of the serious aspects of retraction of the statement by the important investigation witnesses by SIT even was when going on the and
allegation by one of the members of the SIT regarding playing of a role in the
retraction, by one of the Members of the SIT itself direct and, the therefore, Chairman this of Court had to to
SIT
himself
investigate the matter regarding retraction of the statements of the witnesses. Of
course, it was observed that the action, if any, to be taken against any members of the SIT could only be taken after permission is granted by this Court. (11) the The report Chairman and of has of SIT has submitted the first namely;
found main
that
statement
the
witnesses
Motibhai Desai and Shivsingh were voluntary and were not and given for under further compulsion or
duress,
investigation
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regarding
retraction
of
such
statements,
interrogation may be required. (12) The of final the (8th) SIT report has of the given
Chairman, unanimously.
been
However, simultaneously he has
given in writing that he may be relieved as a Member of SIT and has declared before the Court that he and Mr.Mohan Jha are desirous of being relieved from the SIT, whereas
Mr.Satish Verma is desirous to be relieved as a Member of SIT. (13) The Chairman of SIT Mr.R. R. Verma
has given in writing that on the aspects of retraction of statements of the witnesses,
final report is not submitted, but interim report is submitted and for further
investigation custodial interrogation may be required. He has requested that such work
may be assigned to another person or agency by closure of the said Special Cell of SIT. (14) The Chairman of SIT during the
course of hearing has also declared that if
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investigation of another FIR is given to SIT, there is no facility of getting the person arrested, nor is there any place available for that custodial if the interrogation. remand is given He submitted is no
there
facility available.
He also stated before
this Court that at one point of time when SIT wanted to interrogate some persons, an oral request was made to CBI but the same was
declined. 47. The aforesaid facts and circumstances as have transpired after assignment of the work to SIT show that the conduct of investigation by SIT, in spite of the directions issued by this Court, has remained very slow at the initial Karnal stage. Singh As per the report of a It Dr. few is at at
dated had
20.4.2011 come he out.
substantial significant paragraph
details to 58
note
had were
stated forces
that
there
various levels of the State, which perhaps are causing impediment in the impartial and
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fair investigation and he had also prayed for investigation to be conducted by SIT members from outside the State or by an independent agency. After Mr.Karnal Singh was relieved
as Chairman, the progress of investigation by the SIT was slow and in the meantime, the second prayed Chairman, to be Dr.Satyapal It Singh, is true also that
relieved.
substantial progress came about after Mr.R.R. Verma took over as the Chairman of SIT, at least to the extent of finding out as to
whether the encounter was genuine, or not. But he has also not been able to give a final report on the aspects of the persons, who played a role in retraction of the statements of the witnesses. In any case, Mr.R.R. Verma
has also prayed for being relieved as the Chairman of SIT. There are serious
differences of opinion between the other two Members of SIT namely; Mr.Mohan Jha and
Mr.Satish Verma. has shown his
In any case, Mr.Mohan Jha to be relieved as a
desire
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Member of the SIT.
Consequently, only one
Member remains i.e. Mr.Satish Verma who has not shown willingness to be relieved as a Member of SIT. that the This brings about a situation of members of the SIT,
majority
including the Chairman, are not desirous of continuing with the SIT. 48.It is hardly required to be stated that officers, who are not desirous of take up the assignment, would have no zeal or sincerity to conduct and complete the investigation in the right spirit. The willingness shown by the Union of India to spare another officer, in view of the aforesaid facts and
circumstances, shows that it has not seen the reality in the manner as it was expected to command its officers to comply with the
mandate and directions of this Court in its true spirit. of Further, SIT, there as is stated no or by the of
Chairman custodial
facility any
interrogation, in a
basic manner
infrastructure
full-fledged
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available
with
the such
SIT as
for
conducting
the
investigation, etc.
public
prosecutor,
At every level SIT will be required to
be dependent upon the State Agency and in view of the reasons mentioned herein above the assignment of such work or getting the work done through the State Government may derail the investigation and allow certain
forces to enter at various levels that may be uncontrollable by SIT. In any case, when the
matter is to be considered from the stage of filing of FIR of may until the investigation the and
conclusion aspects
trial, assume
all much
aforesaid importance.
Therefore, we find that after registration of another/fresh FIR based on the final (8th)
report of SIT, the investigation be assigned to the agency other than that of SIT. But
since one of the Members of SIT, Mr.Satish Verma has not shown willingness to be
relieved, his assistance can be taken by the agency, to which the work is assigned for
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investigation of the aforesaid another-fresh FIR. of Such assistance of one of the Members Mr.Satish Verma would enable the
SIT,
investigating team of another agency to get clues and may also prove to be very helpful, though ultimately the opinion of such
investigating agency is to prevail, subject to the orders of the Court. NIA 49. The next aspect is whether the National Investigating the Agency (NIA) In can be assigned for the is
investigation. of
our acts,
view,
purpose
terrorist
complaint
already registered against the deceased vide C.R. No.8 of 2004 and the same is pending before the POTA Court. entered the territory If the deceased had of the State for
committing terrorist acts, it would be the subject matter of the said case. such persons to (deceased) by are However, if or of
liquidated than that
caused
death
other
encounter or in self-defence, may be by the
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concerned police officials or otherwise, the same under would IPC. constitute As per a separate offence
National
Investigating
Agency Act 2002 (hereinafter referred to as 'NIA Act' for short) the agency has the
competence to investigate scheduled offence, which includes vide Item No.5 but the same is limited to Terrorist under IPC Act. vide The Clause offence 8 of as the
mentioned
Schedule may not be attracted in the facts of the FIR. present case as per the fresh/another
If the investigation is assigned to NIA
and the charge is only of offence under IPC, more particularly other than those covered by Clause 8 of Schedule, the question of
competence and jurisdiction of NIA may arise. Similarly such questions may also arise at the time of taking by cognizance the concerned and for
conducting Court. the
trial
Special
If the Parliament has not conferred upon the investigating
jurisdiction
agency or upon the Court for trial of the
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offence, conferred, exercising
such even power
jurisdiction by under this Article
cannot Court 226
be while
of
the
Constitution of India upon a Court which has no jurisdiction. The reference may be made
to the decision of the Apex Court in the case of A.R. Antulay v. R.S. Nayak and Anr.,
reported in (1998) 2 SCC, 602. of such facts and
It is in view of the
circumstances
present case that we find in order to ensure a smooth course of investigation to see and if the
required,
ultimately
that
offenders are booked as per law and further the offences are taken to the logical end, it would be just and proper not to assign the investigation to NIA. CBI 50. The aforesaid would take us to the
remaining course available for assignment of the investigation to CBI. 51. It is an undisputed position that both the petitioners had made a prayer in the
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petition for investigation to be assigned to CBI, State time. which was vehemently at the opposed by point the of
Government
relevant
It is true that now the petitioners,
as well as the State Government have both changed their stands, inasmuch as the
petitioners now pray that the investigation of the another/fresh FIR be conducted through the same SIT, whereas the learned Advocate General for the State declared before the
Court that the State has no objection if this Court is inclined to assign the investigation to either NIA or CBI, in the event that it is not inclined to give the investigation to the State Agency which is the first choice. He
had further stated that the State Government has no objection even if the investigation with CBI is monitored by this Court by way of submission of progress reports, or otherwise. 52. The learned Counsel for the original
petitioners did submit that the CBI is given assignment of the investigation, as per their
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experience, it would land into a large number of political allegations and counter
allegations and will not bring about the real offenders to book. It was also submitted
that the CBI is busy with many other scams and they have not only residual officers, up who the
would
seriously
take
investigation. 53. Whereas on behalf of the Union of India, it was submitted that the CBI is already
over-burdened and it has limited resources as a number of posts are vacant. Therefore, it
can be termed that the Union of India has shown indirect reservations for assignment of the work to that CBI. in At the this main stage, we may an
mention
petition,
affidavit was filed on behalf of Union of India that the CBI is ready to take up the investigation. the further The said aspect is clear from dated 29th September,
affidavit
2009 filed on behalf of the Union of India (in Special Criminal Application No.822 of
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2004)
by
Mr.Mani,
Under-Secretary,
Internal
Security Class-VI of the Ministry of Home Affairs, stating that Union of India would have no objection if the independent inquiry and the investigation is to be carried out by CBI or otherwise and it was so declared that the Union of India would abide by the
decision of this Court. 54. We may state that in the judgement of this Court dated 12.8.2010 in the main
petition, when this Court had to consider the aspect of assigning the investigation to the CBI it was observed at paragraph 66, and 67 and thereafter at paragraph 69, thus:66. We cannot countenance the
submission made by the learned Counsel for the petitioners that the present
case of encounter falls at par with the case of encounter of Sohrabuddin. fact situation of the case in The the
decision of the Apex Court in the case of Rubabuddin Sheikh v. State of
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Gujarat, reported in 2010(2) SCC, 200, was that the stage investigation was allowed at to the be
initial
continued by the Apex Court with the State Police. Not only that, but even
as per the investigation made prior to the above referred decision of the Apex Court, the encounter was found to be fake and the upon charge-sheet with the was also taken
submitted
action
report submitted before the Apex Court from time to time, but thereafter the Apex Court found that proper
investigation was not being made by the State assigned situation inasmuch Police, to therefore, CBI. in No the is it such present no was fact case
exists as
there
finding
recorded, nor any material at par with the case for encounter of Sohrabuddin Sheikh. observations Merely are made because in some of
respect
functioning of State Police in the case
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of
particular
investigation we
of
particular countenance learned
incident, the
cannot of the
submission for the
Counsel
petitioners
that for all investigations, in which police officers are involved, the same cannot Police be and undertaken the case by would the call State for
transfer of investigation to CBI.
67.If the matter is considered in light of the earlier decision of this Court in the case of Bharatbhai Umedsang & Anr. v. State of Gujarat (supra), for the transfer of investigation to CBI, as observed by this Court in the above referred case, power can be exercised by this Court in a very extraordinary case, where there is sufficient
material before the Court to record the substance in the apprehension of the
complainant or the victim that even the higher assigned officer with of the the State, if has
investigation,
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failed in duty or would be failing in duty cast upon the statute in the
matter of investigation. satisfaction, the the either or by by
Further, the stepping into
investigation
transferring to other
investigation
investigating agency like CBI cannot be recorded on a mere ipsi dixit of a
complainant or a victim, nor can it be recorded only because the concerned
investigating officer has not acted as per the desire of the victim nor such investigation because the can be transferred apprehends only that
accused
there will be any further strict action by the investigating of malafide or officer. malice on The the to
degree part carve
of
the
investigating a case in
officer
out
exceptional
category, may be for transferring the investigation to some other officer or otherwise, would require a cogent
material on the face of it, which would
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leave
the
Court
to
satisfactory
material substance in the apprehension voiced by either or side, may be or the the
complainant accused. of the
the
victim
The examination of the facts present case, if considered, on
there
is
no
material
whatsoever
record to show any malice or malafide on the part of the investigating
officer for intentionally not properly conducting either the investigation, Gurjar may as be the
Ms.Parixita
Investigating Officer or Mr.Mahapatra as further incident. making inquiry in the said
In absence of any material
on record for any malafide or malice on the part of the aforesaid officers, who have so far conducted the
investigation, it cannot be said that there is any satisfactory material with the Court to accept the contention of the learned Counsel for the petitioner representing the relatives of the
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deceased
that
the
officer
acted
with
any malafide or malice. the case is to be
Therefore, if tested on the
allegation of malafide or malice on the part of Investigating Officers or any State said police to officer, no been case can be for
have
made
out
transferring the investigation to CBI. The learned Counsel appearing for the
petitioners did rely upon certain cases where this Court or the other High
Courts had found it proper to entrust the investigation to CBI, since certain police officers were involved or high police officers were involved. Such
decision can hardly be read as laying down the principle that in a case where the offences alleged to have been
committed by the police officers, the other officer for police shall officer, not higher police duty
discharge in an
the
investigation
impartial
manner.
At the most it can be said
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that in the facts and circumstances of those cases, this Court or the other High Courts found it proper to transfer the investigation to CBI. No parity
can be drawn on the ground as sought to be canvassed by the learned Counsel
appearing for the petitioners.
68. xxx
69.The
aforesaid
leads
us
to
further
find out as to how the investigation can be carried out in a manner, which instills the confidence and credibility to such investigation in order to do complete the
justice
to
protect
fundamental rights of the citizens of the country.
55. The
aforesaid is to be
shows carried
that out
the in a
investigation manner which
instills such in of
confidence to
and do the the
credibility complete
to
investigation, order the to
justice rights
protect of
fundamental
citizens
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country.
It
is
true
that
at
that
stage,
thereafter this Court had found it proper to constitute a broad-based SIT and the prayer for assignment of the investigation to CBI was not granted at that stage. However, in view of the facts and circumstances mentioned herein above and the conclusion not to assign the investigation to the State Agency, the matter is now required Further, considered to be considered factors show
accordingly. recorded and
various herein
above
that the SIT so constituted had to be geared up with various efforts and various
directions and the zeal of the officers in functioning as Members of SIT and more
particularly that of the Central Cadre was not so satisfactory to continue with the
assignment. Chairman, expressed desired opine to for
As observed earlier, the first Singh after to some time, and did an
Mr.Karnal his be
inability relieved. of
continue he to
However, the work
assignment
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independent were from
agency an
or
SIT
whose
Members State
agency second
other
than Dr.
the
Agency.
The
Chairman
Satyapal
Singh, had a very limited role and he also expressed willingness to be relieved. third never Chairman, took over Dr Ramudu, had of The
practically physical
because
his
ailment, or otherwise. Substantial progress , if any, could come out only during the tenure of the last and the fourth Chairman Mr.R.R. Verma, but after the 8th Final report he has also shown a a desire view to for some to be relieved of and the
expressed
assignment other
investigation agency.
independent
56.As observed earlier, now the material has come out showing the situation that the
investigation cannot be assigned to the State Agency. Further, in view of the peculiar
circumstances narrated herein above, majority of the Members of the SIT after completing the work, and expressing the unanimous view
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on
the
aspect have Further
of
genuineness a desire of the
of to
the be
encounter, relieved.
shown in
view
reasons
recorded herein above we have also found it proper not to assign the investigation to the present SIT, save and except making use of the services of Mr.Satish Verma in future for investigation by any other agency. If the
aforesaid are ruled out, the third option was NIA, which for the reasons recorded herein above may not be proper in order to ensure the smooth course of investigation and the conduct of the trial, if any, in future.
Hence, the only agency now left is CBI, which is a Central Agency. At this stage we may
once again refer to the decision of the Apex Court in the case of State of West Bengal and Ors Vs. Committee for Protection of
Democratic Rights, West Bengal & Ors reported in (2010) 3 SCC, 571 (2010 STPL (Web) 129 SC), wherein the Apex Court, while considering the
question about the power of the constitutional
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Court under Article 32 or 226 for entrustment of the investigation to CBI, recorded conclusions, the relevant of which for the present group of matter is at para 45(ii) as under: (ii) Article 21 of the Constitution in its broad perspective seeks to lives except protect the and according
persons of their personal to The said application liberties
the procedure established by law. Article in not its broad
only takes within its
fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial of
investigation against any person accused
commission of a cognizable offence,which may include its own officers. In certain
situations even a witness to the crime may seek for and shall be granted protection by the State. While recording the final analysis at para 46, the Apex Court did observe that the Apex Court
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and the High Court have not only the power and jurisdiction, but also an protect guaranteed Article by the Part the obligation to rights, and under
fundamental III in general in
21 of
Constitution
particular,
zealously and vigilantly. But at the same time, the further observations by way of caution, have been made at para 47, relevant of which reads as under: Before parting with the case, we deem it necessary to emphasize that despite wide
powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind on these plenitude Articles
certain the
self-imposed limitations of powers. under The the very said
exercise
Constitutional of the power
requires great caution in its exercise. In so far as the to in question the a CBI case of to is issuing a
direction
conduct concerned, can be
investigation although no
inflexible
guidelines
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laid power
down
to
decide be
whether
or but
not time
such and
should
exercised
again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has
levelled some allegations against the local police. This extra-ordinary power must be exercised exceptional necessary instill sparingly, situations to provide in cautiously where it and in
becomes and or
credibility investigations
confidence
where the incident may international an order
have national and or where for such doing the
ramifications be
may
necessary and
complete fundamental the large
justice
enforcing
rights. would of cases find
Otherwise be flooded with a and it with limited to
CBI number
resources,
may
difficult
properly investigate even cases and in the and
serious process purpose unsatisfactory
lose its credibility with
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investigations. (Emphasis supplied) 57. In our view, the facts and circumstances of
the present case as have now emerged, call for exercise of power treating for in the case in of the the
exceptional investigation credibility
category, to and CBI
assignment order to
provide in by the now
instill the if
confidence incident not has
investigation, acquired
since
national,
international
ramifications. do complete
This would also be required to justice to the parties and for
enforcement of the fundamental rights.
58.We cannot countenanced the reservations shown by the Union of India that CBI is already overburdened or that the posts are vacant. If the
Union of India is unable to man the central
agency, this
it
should
take
effective
steps
in is
regard.
When
the
investigation
assigned by the Court while exercising power under Article 226 of the Constitution of
India, it would be the bounden duty of the Union of India to man CBI, if required, by
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requisitioning officers from other forces and by deputation for satisfactory completion of the work of with the investigation it in of a and crime for
registered completing
general, of
work
investigation
specifically assigned by the High Court under Article 226 of the Constitution of India, in particular. 59. We find it proper to record completed that on the the
investigation
though
now
aspects of genuineness of the encounter other aspects are yet to be investigated regarding causing death and may of the persons related required concerned thereto. on the
(deceased) Further, it
aspects also be
aspect of allegation of Terrorist Act as per complaint vide C.R. No.8/2004 of Crime Branch Police Station. Therefore, the investigation is required to be taken up and handled in a manner with all sincerity for enforcing the law to its logical end. Only if the
investigation is taken up in such a manner,
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would it bring about the result as expected from any independent and impartial agency. 60.The ground of contended chances on of behalf of
petitioner
political
allegations if the investigation is assigned to CBI will not be relevant or have any role to play to slow down or derail the
investigation. time the
Further, if at any point of find that such
petitioners
considerations have prevailed, nothing prevents them from approaching the Court concerned or the constitutional Court, for appropriate
directions. We leave the said aspect open, to be considered in future if at all required.
However, we do find it proper to observe that the paramount consideration of any investigating
agency would be to book the real offenders while taking care that innocent persons should not be harassed. Further as another/fresh FIR is yet
to be filed and registered and the investigation is yet to be taken up, in absence of any material for slow progress by CBI, or the derailing monitoring of of the such
investigation
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investigation, at this stage, can be said to be premature.
61. Therefore, we find that it would be just and proper to assign the entire investigation to CBI after registration of a fresh/another FIR by the Chairman of the present SIT. would also be required for the CBI It to
constitute a team of investigation headed by an Officer not below the rank of DIG. The
matter is already delayed long enough and, therefore, such investigation also should be completed within a reasonable time. 62. In view of the aforesaid observations and discussion, the following directions:(a) Mr.R.R. Verma, Chairman of SIT (present) shall register another/fresh FIR on the basis of his final (8th) report to the effect that the alleged encounter is not found to be
genuine and for causing death of the deceased and consequently IPC and for other the alleged offences of the
under
provisions
relevant laws.
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(b) The
aforesaid
FIR
shall
be
filed
by
Mr.R.R. Verma, Chairman, SIT with the CBI, having jurisdiction for the crimes committed in Gujarat State, within a period of two
weeks from the date of pronouncement of the order and the same shall be registered by the concerned officer of CBI. (c) CBI shall thereafter take up the
investigation at the earliest and shall make an attempt to complete the same at the
earliest. (d) CBI shall entrust the investigation to the team of its officers headed by an officer not below the rank of DIG. of investigation, shall the be at During the course said liberty team to of take
investigation
help/assistance of Mr.Satish Verma, IPS (1986 Batch, Gujarat Cadre), Member of the present SIT in order to get clues for investigation and further incidental aspects of the
investigation.
However, it is clarified that
the final decision shall be of the CBI as
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referred to herein above. (e) After Chairman the of registration SIT, the of FIR by of the the
record
investigation made by the SIT shall be handed over to CBI by the Chairman of SIT. (f) After the registration of FIR and after handing over the entire record of SIT to CBI, appropriate report shall be submitted to this Court by the Chairman of SIT. thereafter dissolved. (g) The State Government shall spare the that the SIT It is only shall stand
service of Mr.Satish Verma as and when so desired or required by the CBI for helping the CBI to provide or any clues other for matter further related
investigation thereto.
(h) Further investigation of C. R. No.8/2004 of Crime Branch Police Station shall be
transferred to CBI, within one month after the registration of the FIR by CBI as
directed herein above.
The State Government
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shall
issue
appropriate
orders/notification
for such purpose.
CBI thereafter shall file
appropriate report based on conclusion of SIT as per its 8th Report in the concerned Court, but the full shall details be and the relevant after
documents
produced
only
investigation of the aforesaid another/fresh FIR is completed and appropriate Report is filed in the concerned Court for
another/fresh FIR. (i) It is also observed and directed that in the event during the course of investigation of the aforesaid another/fresh FIR or
complaint vide C.R. No.8/2004 of Crime Branch Police Station, the CBI is required to take any action against same shall not any Member taken of SIT, the prior
be
without
permission of this Court. (j) All material the record, by reports the SIT and be other sealed
supplied
properly and be kept in safe custody of the Registrar General of this Court.
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63. All the aspects of present application shall get concluded ordered as per the aforesaid save and
directions
herein
above
except that on the aspect of consideration of the matter for initiation of action under the Contempt of Courts Act separate orders shall be passed by this Court.
(Jayant Patel, J.)
(Smt. Abhilasha Kumari, J.)

vinod
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2 To be referred to the Reporter or not ? 3 of the judgment ?

ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE JAYANT PATEL)

allied matters and the subsequent development in the matter.

incident, as under:2. On Crime 15.6.2004, Branch vide C.R. No.8/2004 a of

Pakistani Fidayeens, with

the Car came

No.MH-02-JA-4786 they had

challenging the action

convenience) investigation registering prayer is

complaint them. the The said

registered with DCP, Ahmedabad City by the also

the investigation by CBI as per above referred prayer only.

relevant of which reads as under:-

But the matter does not end there on

contradictory findings Additional DGP

with the directions of this Court and to provide all necessary

infrastructure. (10) The members of SIT or SIT work

under the orders of this Court. Hence, alteration in the composition or

constitution of new SIT, if this Court finds it proper, cannot have

demoralizing effect, but can be termed as a transfer of work/assignment

credibility to the investigation.

issuing directions, the relevant of which is at paragraph 79(b) as under :-

investigation of 2004 DCB

connection 15.6.2009 Station,

furtherance thereto in accordance with law.

investigation to CBI are not granted.

It appears that, thereafter in Criminal

24.9.2010 at paragraph 8 to 14 as under:-

alternative, it would not serve any purpose

appropriate agency for

Investigation. 12. It may also be observed that at

fundamental rights of the citizens. 13. Keeping the aforesaid observations in

Application No.1850 of 2009.

Thereafter, this Court further considered

No.9832/2010) reads from paragraph 20 to 25 as under:CRIMINAL MISC.APPLICATION/15981/2010 01/07/2013 01:36:20 PM

orders, this regard,

transferred to it and it shall also have

It is only after the constitution of the

and assigning of the investigation, actually started.

Mr.Karnal Singh, IPS, shall be the

SIT. B) Generally, the decision shall be taken

The matter further came to be considered on

transferred so far. 2. We may record as per the order dated

resulted into the present matter. 3. Under these circumstances, the

Mr.Satish reports each of

there for the

genuineness of the encounter or otherwise. 6. It was reported that some complaints

were filed against one of the Members of the

earliest, each member of the SIT was directed

Therefore, Mr.Karnal Singh was

allowed to be relieved as Chairman of SIT,

demarcated. not affected

investigation. 2. However, three pertinent aspects are

inclusion in the present SIT.

The second aspect is that on account of

We have heard both the members of the

SIT. Considering the facts and circumstances

approximately four weeks. An attempt shall be made by requisitioning both the

direction by this Court, can be said to be in breach and non-compliance of the

Mr.Balwant Home to before

Secretary, Home Department to submit a reply and explanation, if any, as to why

Shamima Kausar wanted to tender an affidavit claiming to contain certain factual