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TMI Blog2010 (1) TMI 1156X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted by one V.L. Solanki, Police Inspector, working under Ms. Johri. 2. In the present writ petition, the writ petitioner seeks a direction for investigation by the Central Bureau of Investigation (in short the `CBI') into the alleged abduction and fake encounter of the brother of the writ petitioner Sohrabuddin by the Gujarat Police Authorities. The writ petitioner also seeks the registration of an offence and investigation by the CBI into the alleged encounter of one Tulsiram, a close associate of Sohrabuddin, who was allegedly used to locate and abduct Sohrabuddin and his wife Kausarbi, and was thus a material witness against the Police personnel. The writ petitioner further seeks a writ of habeas corpus to produce Kausarbi, the sister-in-law of the writ petitioner. 3. As noted herein above, out of the four interim reports submitted by one V.L.Solanki, Police Inspector, working under Ms. Johri, only one report was submitted initially in this Court. It was only on 16th of May, 2007 that the other three reports were submitted. 4. In the Report submitted on 12th of May, 2007, by Ms.Johri, it has been stated as follows: "However, based on the statement of various witness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eyond the influence of the local police. On the said application, while issuing a notice to the Union of India, this Court on 22nd of January 2007 requested Mr. Gopal Subramanium, learned Addl. Solicitor General for India, (as he then was) who was present in the Court, to take instructions in the matter, in the meantime. 9. Subsequently, by another order dated 19th of March 2007, this Court issued a notice to the State of Gujarat which was made returnable on 23rd of March 2007. It is evident from the said order that the State of Gujarat was asked to produce the relevant records on 23rd of March 2007. When the matter came up before it on 23rd of March 2007, the learned senior counsel for the respondent State submitted that as regards some of the police officers who were involved in the alleged acts, some of the details were collected by the State and after the full details were available further action would be taken in the matter. It was also submitted that the State would be writing to the Government of Madhya Pradesh for giving protection to the writ petitioner, residing at Village Jharnia Sheikh, Dist Ujjain, M.P. Three weeks time was granted to the State to file a report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal status report within two weeks from that date. An allegation was made that Ms.Johri was taken off the investigation for some reasons best known to the State Authorities. The State of Gujarat was directed to submit a report in that regard also. 13. When the matter came up for hearing before this Court on 17th of May, 2007, Learned Attorney General for India again submitted before us that this was a fit case where this Court should pass an order directing handing over the investigation from the State Investigating Agency to CBI as the investigation would not only be made in the State of Gujarat, but also in the States of Andhra Pradesh and Rajasthan and for such investigation, cooperation of the State of Rajasthan and State of Andhra Pradesh and their high police officials may be required. Therefore, according to Attorney General for India, it would be difficult for the Investigating Agency of the State of Gujarat to make proper and thorough enquiry and submit a report to this Court. Mr. Ahmadi, learned counsel appearing on behalf of the writ petitioner also submitted that this Court should direct the CBI to take over the investigation at the same time permitting Ms.Johri and M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation was not proceeding towards correct direction. At that stage, we did not find it appropriate to direct the State of Gujarat to include Mr. Raigar with Ms. Johri for completing the investigation. 16. At that stage, it was submitted before this Court by the learned senior counsel appearing for the state of Gujarat that the final report would be submitted within four to six weeks from 15th of May, 2007. 17. Fifth Action Taken Report was dated 2nd of July, 2007. In this report, taking a departure from what was stated in the Fourth Action Taken Report, Ms.Johri stated that the Andhra Pradesh Police authorities had denied any official involvement of Andhra Pradesh Police Personnel. Examining 194 witnesses, they had been able to array another six persons as accused. Against the order of the Metropolitan Court rejecting permission of the Court for conducting the NARCO Analysis test of six accused persons, an appeal had been filed in the Sessions Court. 18. The body of Kausarbi was cremated on 29th of November, 2005 in Illol village. The assistance of Directorate of Forensic Science was sought to establish whether soil samples collected from Illol village contained any remai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended or transferred to avoid their interference with the case. Police personnel themselves had deposed against the accused Police officers. No anticipatory bail was granted to any of the accused. 27. Mr. Jadeja was the one who had first revealed the name of N.K.Amin on 26th of April, 2007. 28. The accused had challenged subjecting them to NARCO analysis and the matter was pending before the Court. The Report submitted that analyzing the voluminous details of the calls made by the accused, collected from various service providers, would take time. It was also urged that the Habeus Corpus filed by Rubabbuddin Sheikh does not survive as Kausarbi's body was found to be cremated. 29. On 15th of September, 2008, Ms. Johri filed the Eighth Action Taken Report. It mentioned that a supplementary charge sheet was filed on 10th of December, 2007. It also detailed the status of bail applications rejected or pending. The Writ Petitioner filed an application in the Sessions Court, which was partly allowed and the Investigating Officer Police Inspector Shri. D.H.Trivedi, was directed to carry out further investigation under Section 173(8) of the Code of Criminal Procedure within 90 days. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough some of their high police officials were taken to custody. Therefore, let us first consider the first question, namely, whether investigation can be transferred to CBI Authorities or any other independent agency when the charge sheet has already been submitted. In support of his contention that the investigation can be transferred to the CBI Authorities when the charge sheet in the criminal proceeding was already filed, reference was made to in Kashmeri Devi vs. Delhi Administration & Anr. [AIR 1988 SC 1323] by the learned senior counsel for the writ petitioner. He also relied on a decision of this court in the case of Inder Singh vs. State of Punjab & Ors. [1994 (6) SCC 275] in which this Court held that the enquiry should be transferred to the CBI Authorities for investigation in view of the fact that the police authorities had not been able to locate the whereabouts of the abducted persons. Therefore, these decisions were cited by the learned counsel for the writ petitioner to show that even after the charge sheet has been filed in the Court of Competent Jurisdiction, this Court is empowered to direct the CBI Authorities or any other independent agency to take over the inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies who had already filed eight Action Taken Reports had not done such investigation in the proper direction nor had they investigated in a fair and proper manner. 34. This submission of the learned senior counsel for the writ petitioner was hotly contested by Mr.Mukul Rohtagi, learned senior counsel who appeared for the State of Gujarat. According to Mr. Rohtagi, after the charge sheet was submitted in court, it was not open to the court to hand over the investigation to the CBI or any other independent agency and in support of that contention a decision of this Court in the case of Vineet Narayan & Ors. vs. Union of India [1996 (2) SCC 199] was relied on. In this decision, this Court observed: "In case of persons against whom a prima facie case is made out and a charge-sheet is filed in the competent court, it is that Court which will then deal with that case on merits, in accordance with law. However, if in respect of any such person the final report after full investigation is that no prima facie case is made out to proceed further, so that the case must be closed against him, that report must be promptly submitted to this Court for its satisfaction that the authoritie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (supra), this court held : "It is thus clear from the above judgment that once a charge-sheet is filed in the competent Court after completion of the investigation, the process of monitoring by this Court for the purpose of making CBI and other investigative agencies concerned perform their function of investigating into the offences concerned comes to an end and thereafter, it is only the Court in which the charge- sheet is filed which is to deal with all matters relating to the trial of the accused including matters falling within the scope of Section 173(8). We respectfully agree with the above view expressed by this Court. In our view, monitoring of pending trial is subversion of criminal law as it stands to mean that the Court behind the back of the accused is entering into a dialogue with the investigating agency. Therefore, there can be no monitoring, after the charge sheet is filed." 37. Mr.Rohatgi, learned senior counsel appearing for the State of Gujarat had then drawn our attention to another decision of this Court in the case of Hari Singh vs. State of U.P. [(2006) 5 SCC 733] in which it was held that when there is a remedy provided under the Code of Criminal Proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also with the CBI and charge sheet in that investigation was submitted, therefore, this Court in Sushil Kumar Modi(supra) observed that there was no occasion for any of the officer of the CBI to approach the High Court or for the Division Bench of the High Court to issue any directions, oral or otherwise, for seeking the aid of the army for execution of the warrant against Shri Lalu Prasad Yadav. Again in Para 7 of the decision in Sushil Kumar Modi's case (supra), it would be evident that the CBI Authorities were investigating the offences and that is the reason this Court observed that after the charge sheet was filed, no directions can be taken by the CBI Authorities or its officers from the High Court or this Court as the case may be. This is not the case before us. It is true that in the present case, the charge sheet has already been submitted but that does not debar, in our view, this court from handing over the investigation to the CBI Authorities. 42. So far as Rajiv Ranjan Singh's case (supra) which was relied on by Mr.Mukul Rohatgi, learned senior counsel for the State of Gujarat, is concerned, we find that this decision was also rendered relying on Sushil Kuma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , to hand over the investigation to the CBI authorities or any other independent agency particularly when the charge sheet has already been submitted. 47. Having heard the learned senior counsel appearing for the parties and after going through the eight Action Taken Reports submitted by the Police Authorities before this Court and after considering the decisions of this Court cited at the Bar and the materials on record and considering the nature of offence sought to be investigated by the State Police Authorities who are themselves involved in such crime, we are unable to accept that the investigation at this stage cannot be handed over to the CBI Authorities or any other independent agency. We have already discussed the decisions cited by Mr.Mukul Rohatgi, learned senior counsel appearing for the State of Gujarat and have already distinguished the said cases and came to a conclusion that those decisions were rendered when CBI enquiries have already been made and at that stage this Court held that after the charge sheet is submitted, the CBI authorities would not be able to approach this Court or the High Court to have issuance of directions from this Court. 48. In R.S.Sodhi vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or which some high police officials have already been taken into custody. 50. It is also well known that when police officials of the State were involved in the crime and in fact they are investigating the case, it would be proper and interest of justice would be better served if the investigation is directed to be carried out by the CBI Authorities, in that case CBI authorities would be an appropriate authority to investigate the case. In Ramesh Kumari vs. State (NCT Delhi) & Ors. [2006 (2) SCC 677], this Court at Paragraph 8 observed : "...................We are also of the view that since there is allegation against the police personnel, the interest of justice would be better served if the case is registered and investigated by an independent agency like CBI." 51. In Kashmeri Devi vs. Delhi Administration, (supra), this court held that in a case where the police had not acted fairly and in fact acted in partisan manner to shield real culprits, it would be proper and interest of justice will be served if such investigation is handed over to the CBI authorities or an independent agency for proper investigation of the case. In this case, taking into consideration the grave alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be evident that in order to do complete justice in the matter and to instill confidence in the public mind, this court felt it necessary to have investigations through the specialized agency like the CBI. 54. Therefore, in view of our discussions made hereinabove, it is difficult to accept the contentions of Mr.Rohatgi learned senior counsel appearing for the state of Gujarat that after the charge sheet is submitted in Court in the criminal proceeding it was not open for this court or even for the High Court to direct investigation of the case to be handed over to the CBI or to any independent agency. Therefore, it can safely be concluded that in an appropriate case when the court feels that the investigation by the police authorities is not in the proper direction and in order to do complete justice in the case and as the high police officials are involved in the said crime, it was always open to the court to hand over the investigation to the independent agency like CBI. It cannot be said that after the charge sheet is submitted, the court is not empowered, in an appropriate case, to hand over the investigation to an independent agency like CBI. 55. Keeping this disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sheet. 57. With respect to the killing of Kausarbi, it was only stated that she was seen in the company of the ATS personnel, on 26th of November, 2005 and her dead body was taken for cremation on 29th of November, 2005. It is not clear from the eight Action Taken Reports filed by the police authorities of the State of Gujarat as to what happened to Kausarbi in the meanwhile, nor is the mode of killing stated. The investigating agency of the State of Gujarat has made a false excuse for not conducting the NARCO Analysis of the accused because a judgment of this Court is pending on the matter, though the Sessions Judge had permitted such NARCO Analysis. In our view, it is merely an excuse for not being able to conduct the investigation relating to mode and manner of killing of Kausarbi. 58. It also appears from the charge sheet that it identifies the third person who was taken to Disha farm as Kalimuddin. But it does not contain the details of what happened to him once he was abducted. The possibility of the third person being Tulsiram Prajapati cannot be ruled out, although the police authorities or the State had made all possible efforts to show that it was not Tulsiram. In our v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, we are of the view that her mentioning the criminal background of Sohrabbuddin and the discussion among the accused officers concerning Sohrabbuddin was meant to obfuscate the enquiry. 60. In our view , the investigation of crime was carried out de hors the 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. 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 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. Ms. Geeta Johri herself in her report dated 7th of December, 2006 had conceded that ATS was not a regular police station in which FIR should have been filed. It was further submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has collected voluminous oral & documentary evidence to ensure that the charges leveled against them are adequately proven. Further, the investigating agency has also taken steps including Crime Scene Reconstruction, taking Expert Advice and Video Recording. 62. Mr.Rohatgi, further submitted that in order to enable this Court to decide what could be in the interests of justice, the criminal antecedents of the Sohrabuddin, his father, and his brother have also been enumerated. It was further submitted that assistance from the Dept. of Police, Andhra Pradesh was also received as ordered by this Court. However, the Andhra Pradesh Police Officers had not been identified. It was urged that this would not affect the conviction of the accused in any manner. Similarly, it was submitted that non-identification of the third person who was abducted along with Sohrabuddin and Kausarbi would also not affect the prosecution case. 63. Mr.Rohatgi further submitted that since the charge-sheet has already been filed, it would not be necessary to go into the preliminary inquiry conducted prior to the registration of the offence. Giving the aforesaid particulars on the question of investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the State police authorities and particularly the high officials of the State of Gujarat, we are compelled even at this stage to direct the CBI Authorities to investigate into the matter. Since the high police officials of the State of Gujarat are involved and some of them had already been in custody, we are also of the view that it would not be sufficient to instill confidence in the minds of the victims as well as of the public that still the State Police Authorities would be allowed to continue with the investigation when allegations and offences were mostly against them. In the present circumstances and in view of the involvement of the police officials of the State in this crime, we cannot shut our eyes and direct the State Police authorities to continue with the investigation and the charge sheet and for a proper and fair investigation, we also feel that the CBI should be requested to take up the investigation and submit a report in this Court within six months from the date of handing over a copy of this judgment and the records relating to this crime to them. 66. Accordingly, in the facts and circumstances even at this stage the police authorities of the State ..... X X X X Extracts X X X X X X X X Extracts X X X X
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