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2011 (4) TMI 1477 - SC - Indian Lawsfake encounter - whether after filing of the charge-sheet by the State agency the Court is precluded from appointing any other independent specialized agency like the CBI to go into the same issues if the earlier investigation was not done as per the established procedure - In present case Petitioner alleged that the Respondents/accused officers enjoy powerful position in their respective State Police and are trying to obstruct further inquiry into the fake encounter killing of her son who was a material witness in the case of fake encounter of Sohrabuddin and his wife Kausarbi. Hence the Petitioner has preferred this petition before this Court praying for direction to CBI to register an FIR and investigate the case. HELD THAT - In view of discussions and submission although charge-sheet has been filed by the State of Gujarat after a gap of 3 1/2 years after the incident that too after pronouncement of judgment in Rubbabudin s case 2010 (1) TMI 1156 - SUPREME COURT and considering the nature of crime that has been allegedly committed not by any third party but by the police personnel of the State of Gujarat we are satisfied that the investigation conducted and concluded in the present case by the State police cannot be accepted. In view of various circumstances highlighted and in the light of the involvement of police officials of the State of Gujarat and police officers of two other States. it would not be desirable to allow the Gujarat State Police to continue with the investigation accordingly to meet the ends of justice and in the public interest we feel that the CBI should be directed to take the investigation.
Key Issues:
1. Whether the Court can appoint an independent agency like the CBI to investigate if the earlier investigation by the State police was not conducted properly. 2. Whether the Petitioner has made out a case for entrusting the investigation to the CBI. Issue 1: Appointment of Independent Agency Post Charge-sheet Filing The Court addressed whether it can appoint an independent agency like the CBI to investigate if the earlier investigation by the State police was not conducted properly, even after a charge-sheet has been filed. The judgment referenced several cases, including Vineet Narain v. Union of India, Union of India v. Sushil Kumar Modi, and others, concluding that the Court can indeed hand over the investigation to an independent agency like the CBI if it feels the State police's investigation was not in the proper direction. This principle was affirmed in Rubabbuddin Sheikh v. State of Gujarat, where the Court held that it is within the Court's power to ensure complete justice by appointing an independent agency for investigation, especially when high police officials are involved. Issue 2: Case for Entrusting Investigation to the CBI The Petitioner, the mother of Tulsiram Prajapati, alleged that her son was killed in a fake encounter by the police to prevent him from testifying in the Sohrabuddin Sheikh case. The Petitioner sought a CBI investigation, citing a lack of faith in the State police's impartiality due to the involvement of high-ranking officials. The State of Gujarat opposed this, arguing that a charge-sheet had already been filed after a proper investigation. However, the Court noted several discrepancies and inadequacies in the State police's investigation, including the failure to properly analyze call records and the suspicious circumstances surrounding Tulsiram Prajapati's death. The CBI, in its counter-affidavit, supported the Petitioner's claims, stating that Tulsiram Prajapati was a key witness in the Sohrabuddin case and his killing was part of a larger conspiracy. The Court found that the State police's investigation lacked credibility and was not conducted impartially, particularly given the involvement of high-ranking officials. The Court emphasized the need for an independent investigation to uphold the rule of law and ensure justice. Conclusion The Court directed the Gujarat State Police to hand over all records related to the case to the CBI within two weeks. The CBI was instructed to investigate all aspects of Tulsiram Prajapati's killing and file a report with the concerned court within six months. The Court also clarified that any observations made were solely for deciding the issue of investigation transfer and should not be construed as opinions on the merits of the case. The Petitioner was permitted to seek compensation based on the investigation's outcome. Separate Judgments The judgment was delivered by a single judge, and no separate judgments were mentioned.
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