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TMI Blog2022 (7) TMI 1469X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst whom a complaint is filed before a Magistrate for initiating prosecution proceedings. This Court took the view that an opportunity to the would be Accused before the filing of the complaint was not mandatory, and observed that the preliminary inquiry was itself not mandatory. In M.S. SHERIFF VERSUS THE STATE OF MADRAS AND OTHERS [ 1954 (3) TMI 76 - SUPREME COURT ], a Constitution Bench of this Court said that no expression on the guilt or innocence of persons should be made by court while passing an order Under Section 340 of Code of Criminal Procedure. An exercise at that stage is not for finding whether any offence was committed or who committed the same. The scope is confined to see whether the court could then decide on the materials available that the matter requires inquiry by a criminal court and that it is expedient in the interest of justice to have it inquired into. This decision of the Constitution Bench has also been followed in Pritish observing that the court, when decides to make a complaint Under Section 340, is not to record finding of guilt or innocence of person against whom complaint is to be made before a Magistrate. The essential ingredients for invokin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of compensation to the victims and their families for the extra judicial executions, for the looting of their properties, for the burning of their houses and other losses suffered by the victims on account of the unlawful activities of the Respondents and their agents; (c) Pass any such further order or orders, as this Hon'ble Court may deem fit and proper in the facts and circumstances stated herein above. 4. By way of the Criminal M.P. No. 3173 of 2010, further reliefs have been prayed for as under: (a) Order directing the State of Chhattisgarh to constitute and notify a Special Investigation Team (SIT) headed by Shri Sankar Sen (IPS) Dr. K.S. Subramanian, IPS and Mr. Rajneesh Rai, DIG and such other officers as the SIT may deem necessary with additional directions for the proper functioning of the SIT as given by the Supreme Court in the case of NHRC v. State of Gujarat (2009) 6 SCC 342, 767). (b) Order directing the State of Chhattisgarh to produce Petitioners 2-12 at Delhi and hand them over to Dr. Mohini Giri, Chairperson, Guild for Services, 'Shubham', C-25, Qutab Institutional Area, New Delhi; (c) Order permitting the Petitioner No. 1 and the adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , District Dantewada. 13. On 18th March 2008, 3 tribals were killed at Matwada, Salwa Judum Camp, District Bijapur, by the Chhattisgarh Police and SPOs. 14. It has been pointed out that with respect to the aforesaid two incidents, the matter was taken up by the National Human Rights Commission. 15. It is the case of the Petitioner No. 1 that as the Special Forces and the State of Chhattisgarh itself are involved in the alleged brutal massacre of the tribals, the investigation of all the complaints should be at the instance of none other than the CBI. 16. In the memorandum of the writ petition, the information as regards the relationship between the Petitioners Nos. 2 to 13 respectively and the deceased has been furnished as under: Petitioner No. Relation with the deceased Village of the deceased Name of deceased Date of Killings 2 Soyam Rama Paternal Uncle Paternal Aunt Niece Niece Nephew Gompad Gompad Gompad Gompad Gompad Madvi Bajaar Madvi Subi Ku. Madvi Mutti Smt Kartam Kunni Madvi Enka 01.10.09 01.10.09 01.10.09 01.10.09 01.10.09 3 Shri Kunjam Hidma Son Belpocha Kunjam Hurra 01.10.09 4 Shri Madavi Hidma Brother Gachhanpalli Madvi Hadma 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther, there was an EoF of SFs with Maoists, where a dead body of a Maoists was recovered. There after a while 200-300 unknown Naxalites again cordoned the police party and attacked the Security forces, in which Assistant Commandant Shriram Manoranjan, Assistant Commandant Shri Rakesh Kumar Chaurasiya, Sub Inspector Shri Sushil Kumar Varma, Head Constable Lalit Kumar, Constable Manoharlal Chandra and Constable Uday Kumar Yadav of CoBRA company were martyred and four others - Constable Satpal, Constable Harish Thakur, Constable Kamalvoshe and Constable Mohammad Husain Quraishi were of CoBRA company also injured. According to the Investigating Officer, even after a long search, no accused were found and on no possibility of finding the accused in near future, the closure report was forwarded on 20.10.2010 to the learned CJM, Dantewada having jurisdiction. The closure report was accepted on 26.10.2010 by the learned Chief Judicial Magistrate, Dantewada 03 PS-Bhejji Dt. - 25.11.2009 Crime No. 05/2009 Sec.- 147, 148, 149, 307 IPC, 25, 27 Arms Act. Shri Matram Bariha, Head Constable - 156 PS. - Bhejji Unknown Uniformed Naxalites in large numbers. On the information of increased Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e First Class (JMFC) Konta. 06 PS-Bhejji Dt. - 22.02.2010 Crime No. 07/2010 Sec.- 147, 148, 149, 302 IPC, 25, 27 Arms Act. Shri Komram Lachcha Add.- Chintagufa Unknown number of 20- 30 persons holding gun in uniform. Absconding accused - 1-Venktesh s/o Unknown 2-Rajesh alias Joga s/o Unknown 3-Vijay alias Ekanna 4-Savitri Bai w/o Unknown 5-Manila w/o Unknown 6-Bhima s/o Unknown 7-Jayram s/o Unknown 8-Samita w/o Chandrana 9-Bhaskar alias Rajesh s/o Venkteswerlu 10-Kavita d/o Jayram On 21.02.2010 on report of applicant Madvi Hadma resident of Gachchanpalli FIR No.-06/2010 under sections - 147, 148, 149, 302 IPC & 25, 27 Arms Act was registered at PSBhejji against unknown Naxalites for murder of Madvi Hidma, Madvi Joga, Kawasi Ganga, Madkami Chula & Dudhi Muye. Charge sheet filed on 09.09.2010 against 10 named absconding accused u/sec. 147, 148, 149, 302 IPC, 25, 27 Arms Act. Permanent Non-Bailable Warrant has been issued against the accused by the Hon'ble Judicial Magistrate First Class (JMFC) Konta. 19. It is the case of the Petitioners that after the registration of the FIRs referred to above, no action has been taken by the police. No one came to be arrested. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner without revealing the true nature of the incidents on 17.09.2009 and 01.10.2009. RE: INCIDENT OF 17.09.09 [GACHANPALLI]: A team of CoBRA Battalion along with other police officials started off for village Gachanpalli at around 07:45 PM on 16.09.2009, when the police party reached village Gachanpalli and cordoned off the Naxal camp and at around 5.30 AM, the Naxalite opened fire indiscriminately. The police had no option but to retaliate in self defence. However even after ceasefire, 150-200 Naxalites were able to retreat into dense forest. Several arms and ammunitions were recovered from Naxals including Naxal uniforms. At present, it is registered as Crime No. 4/09 Under Section 147, 148, 149, 307 Indian Penal Code and 25/27 Arms Act at P.S. Bhejji of Gachanpalli and the investigation is carried on by the CID. RE: INCIDENT OF 17.09.09 VILLAGE-SINGANPALLI: The Police Force headed by Devnath Sonkunwar started off for Singanmadgu and while patrolling on 16.09.2009, they found a Naxal Camp in the jungle of Singanmadgu in the early hours of morning. There was incessant firing from 200-300 uniformed Naxalites. The police had to opened fire in his self defence. It would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed complaints of Soyam Dula son of late Soyam Dula, Soyam Rama son of late Soyam Kanna, Mrs. Sodi Sambo wife of Sodi Badra, all belonging to Gompad village, all of them desirous of registration of crime against security forces for alleged killing of their relatives. The reason for holding further investigation in the manner is because the complaints are filed after much delay of the alleged crime and secondly, all the complaints are in a fixed format and typed in same manner giving rise to suspicion that those complaints have been engineered by Naxals frontal organizations to derail the investigation. It is also a moot point to note that during the course of investigation, S.D.O.P. Konta and his team had visited the alleged Complainants but those Complainants were untraceable. The State of Chhattisgarh is of the firm belief that those Complainants are only working at the behest of Naxalites and are even under threat of Naxalites. The State of Chhattisgarh thought that since Petitioner No. 1 is in active contact with complainants and has even chosen to file writ petition before this Hon'ble Court, it would be advisable that Petitioner No. 1 himself comes forth with all the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersed the pleadings before the Chhattisgarh High Court. 6. The contents of paragraph No. 6 of the writ petition are denied for want of knowledge. 7. In response to the contents of paragraph No. 7 of the writ petition, it is submitted that incident of 17.01.2009 is already explained in the preceding paragraphs and therefore it requires no further reply. The facts have been completely distorted and are stated in false manner. It has already been stated that Madavi Deva was the uniformed Naxalite whose body found from the site while the incident on 17.09.09 at Singampali. As regards case of burning in hot oil of Muchaki Deva, though no complaint has been made to police. It is only found in a press release dated 30.10.2009 of the fact finding team of PUCL (Chhattisgarh), PUDR (Delhi, Vanvasi Chetna Ashram (Dantewada), Human Rights Law Network (Chhatisgarh), Action Aid (Orissa), Manna Adhikar (Malkangiri) and Zilla Adhivasi Ekta Sangh (Malkangiri), that Muchaki Deva has been taken to Bhadrachalam by members of the fact finding team. However this entire allegation of burning in hot oil is turned out to be a totally concocted story as evident from the Article published in Hindustan Ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he investigation in an effective manner. 9. & Ors. In response to the contents of paragraphs No. 9, 11, 12, 13, 14, 15, 17, 18, 19, 20 and 21 of the writ petition, it is submitted that the complaint are under investigation and the stories are more in the nature of 'make-believe'. The true incident has already been narrated in the preceding paragraph. The Complainants have not been found whenever the places of their residence is visited by the investigating authorities. The S.P., Dantewada, made a request to the Petitioner No. 1 to furnish the details of Complainants or produce the Complainants themselves so that further investigation could take place. However Petitioner No. 1 has taken umbrage, which would be evident from the pleadings before this Hon'ble Court. In fact, the police is not getting any assistance from the Petitioner No. 1 who claims to be representatives of Petitioners No. 2 to 13. 10. In response to the complaint filed by Kunjan Hidma as mentioned in the contents of paragraph No. 10 of the writ petition, an enquiry was instituted and enquiry report has been submitted by S.D.O.P. Konta. It has been stated that nobody was found by the police personnel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it petition are denied and this subject matter is already part of the writ petition filed before Hon'ble High Court of Chhattisgarh. 28.1 The contents of paragraph No. 28.1 of the writ petition are denied and incidents of 17.01.2009 and 01.10.2009 have already been dealt with in the preceding paragraphs. 28.2 & 28.3 The contents of paragraph No. 28.2 of the writ petition are vehemently denied. The FIRs have been registered and an investigation has been transferred to the C.I.D. in accordance with the recommendations of the NHRC in Nandani Sunder's case. It is also settled proposition of law that there may not be more than one FIR regarding the same incident and once an FIR is registered, then the subsequent complaints about the same incident would be termed as statements Under Section 161 of the Code of Criminal Procedure. Even if the second FIR is registered about the same incident, it would have little effect on the overall investigation of the case. The State of Chhattisgarh is cognizant of the complaints and has even stated to the Petitioner No. 1 herein to come forward with the Complainants so that there statements could be recorded and investigation is duly comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent No. 3, duly affirmed by one Shri Dilip Kumar Kotia (201 CoBRA Bn.-SAF). Few relevant averments made in the reply are as under: "7(1) Regarding Gachanpalli murders: No civilian was killed or injured by the CoBRA/SAF troops. The killing of 02 years old child and 01 blind man of 70 years are denied. However, it is the known fact that naxalites often use civilians as human shield. It is further submitted that the CoBRA troops fired on provocation of naxalites in self defence and to defend themselves at Gachanpalli on 17/09/09 when they were ambushed by the naxalites. Hence, the probability of naxalities themselves indulging in these acts of terrorizing the locals to coerce them to join their naxal movement can not be ruled out. (2) Regarding the case of Madvi Deva: The troops of CoBRA 201 Bn did not carry out operation in village Singhanaplli on 17/09/09. It is submitted that one of the naxalites who was wearing a black naxal uniform and carrying a muzzle loaded gun was killed in an encounter with the CoBRA/SAF Bn at the time of unearthing of naxalite gun factory at Singhanmadugu. His dead body was later on brought to PS Chintagufa Distt. Dantewada for post mortem an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duration. Accordingly, CoBRA/SAF troops comprising AC-02, SOs-04, Other Ranks-66, HC/RO-02 under the command of Shri Ravindra Singh Shekhawat, Asstt. Comdt. alongwith one ASI of civil police, 08 constable of civil police and 21 SPOs left from the base camp of PS Bheji on 30/09/09. When CoBRA/SAF troops were about 01 Km short of village Gompad at about 0630 hrs on 01/10/09 naxalites ambushed the troops and opened heavy fire. CoBRA/SAF troops had no other option and were forced to retaliate the fire which lasted for about 20 minutes and naxalites fled away from the ambush site. When the naxalites were fleeing they were seen carrying their injured colleagues. After the naxalites fled away, the area was thoroughly searched by our troops and Hand grenade-02, Tiffin bomb-01, Solar panel-01, fired case of 7.62 x 51 mm carts-03, Detonator-02, Cap-01 were recovered from the ambush site which were left by naxalites in hurry while fleeing the site. Troops moved further and searched village Gompad where no villager was found. Then our troops returned back. However it is submitted that due to strong action against the naxalites by the CoBRA/SAF Bn in the joint operation since 16/09/09 onward in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onnel is totally false and denied. 8. In reply to para-8, it is submitted that no civilian was killed or tortured by the SAF 201 personnel and all the allegations against this Force are false and fabricated. It is the duty of the Paramilitary Force to step in aid of the people and not to harass them or to commit any activity derogatory to the human rights. In fact, the Force is operating at the risk of life of their personnel engaged in protecting life and property of the citizens. 9. In reply to para 9, it is submitted that the allegation is false, hence denied. In fact the troops were ambushed near this village Gompad and after an exchange of fire the troops seized Hand Grenade-02 Nos. Tiffin Bomb-01, Booby trap-1 Solar Panel-01, fired cases of 7.62 x 51 mm cart-03, detonator-02, Cap-01. 10. In reply to para 10, it is submitted that the troops of 201 CoBRA (SAF) Bn. did not carry out any operation at Dhodhra. The allegations are totally false, baseless, hence denied. 11. In reply to para 11, it is submitted that no civilian was either caught or killed by this Unit personnel neither any money was ever looted. However, on 17/09/2009 our troops were ambushed by the naxalites ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peration in village Gachanpalli during which our personnel were ambushed by heavily armed naxalites and the personnel retaliated back in self defence. 20. In reply to para 20, it is submitted that the allegation is false and denied. Although 201 CoBRA (SAF) had carried out operation in village Gompada on 1/10/09 but no such act was committed by SAF personnel. 21. In reply to para 21, it is submitted that one of the naxalites who was wearing a black naxal uniform and carrying a muzzle loading gun was killed in encounter with this Unit personnel at the time of unearthing of naxalites gun factory at Singhanmadugu on 17/09/09. His dead body was later on brought to PS Chintagufa and handed over to Police Station for post mortem and further action. A Copy of the photograph of the said militant is placed at Annexure Rule 12. In this connection FIR No. 10/2009 dated 20/9/2009 was also lodged with PS Chintagufa (Dantewada). It is also mentioned here that while returning back after unearthing the arms factory of naxalities, our troops were ambushed by naxalites in which six commandos of this unit lost their precious lives. 22. In reply to para 22, it is submitted that naxalite cadres h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which will in turn demoralize the Forces fighting naxalites whose duty is to protect the life and property of the people and to safeguard integrity and security of the country. Hence, this prayer of the Petitioners also deserves to be rejected. Hence, Writ Petition deserves to be dismissed with heavy cost on the Petitioners for having urged and alleged baseless, false and unsustainable allegations. 23. We also take notice of one further affidavit-in-reply filed on behalf of the Respondent No. 3, duly affirmed by Shri Barun Kumar Sahu, Director (Personnel), Police-II Division, Ministry of Home Affairs. We quote the averments made therein as under: 2. I say that I have read and understood the contents mentioned in the affidavit dated 22.04.2010 filed by the Petitioner and that the Petitioner has filed the affidavit under reply to prove the existence of No. 9 Smt. Madavi Hurre in the Writ Petition as she could not be produced before the Hon'ble Court by the Petitioner. It is stated that the Petitioner has filed several copies of the pages of the Tehalka magazine on the basis of which he is trying to prove the existence of the Petitioner in question. The magazine or newspaper a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singanpalli/Singanmadgu. The contradiction in name of villages is apparent and hence unbelievable. The magazine has stated in this report that the incident had taken place on October 17, which is wrong and magazine have published it without verifying the facts which clearly shows that the main intention of the Petitioner is to malign the image of the security Forces, CRPF/COBRA (SAF) engaged in anti-naxal operations, it is also pertinent to mention here that the Petitioner has only mentioned names of persons who according to him met the lady and interviewed her but still could not establish her signing the writ petition and hence cannot be relied upon. 4. In reply to the contents of para 9, I say that in almost all the applications/affidavits, the Petitioner No. 1 is seen to be initiating or at times one Shri Pushkar Raj of PUCL is seen to be asking for impleadment on various reasons the same which shows that the other Petitioners i.e. 2 to 13 have been unnecessarily included on the behest whereas 10 Petitioners who were produced before the Hon'ble Court have not blamed the CRPF/COBRA (SAF) personnel for any of the atrocities committed as alleged in the writ petition. A copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation and enquiries have revealed that the Petitioner No. 6 is Madvi Pojja is still in Andhra Pradesh. 6. It is submitted that a sum of Rs. 4,00,000/- has been sanctioned to be paid to the Petitioner No. 2 Soyam Rama vide Collector Dantewada order No. 752 dated 4.03.2010 as compensation for death of four members of his family. 7. It is submitted that a sum of Rs. 1,00,000/- has been sanctioned to be paid to the Petitioner No. 4 Madvi Hidma son of Madvi Podiya vide Collector Dantewada order No. 756 dated 4.03.2010 as compensation for death of his cousin brother of his family. 8. It is submitted that in the 164 statement recorded on 11.03.2010, the Petitioner No. 5 (Madvi Sukda) has stated that his son was killed three years ago whereas in the complaint filed with the writ petition he has stated that his son was killed on 17.09.2009. Since the two statements are different hence further investigation is being conducted to arrive at the truth. For the reasons mentioned above no compensation has been paid to Petitioner No. 5. 9. It is submitted that a sum of Rs. One lakh has been sanctioned to be paid to the family member (Dudhi Bhima) of Petitioner No. 6 vide Collector Dant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he advancement of the security forces against the concerned armed Left Wing Extremists. The purpose and motive of the present writ Petitioners was also to derail the ongoing efforts of the security forces in neutralizing the Left Wing Extremism movement and the armed Left Wing Extremists; to deprive the dignity and credibility of the security forces; to lower the morale of the security agencies by portraying them as demons and national villains, i.e. slayers of innocent tribal people; and to foist false cases on them so that in future such false cases would act as a deterrent. In short, the case of the Respondent is that the entire writ petition is nothing but a fraud played upon with the Court. 27. All the First Information Reports were thoroughly investigated and charge sheets have been filed in the concerned courts for different offences under the Indian Penal Code, 1860 (for short, "the IPC") and other enactments. All the Accused persons named in the charge sheets have been shown as absconding. It is not that the investigation has not been carried out. The filing of the charge sheets is prima facie material to put the Accused persons named therein on trial. The charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce and of giving false and fabricated evidence before this Court with an intention to procure conviction for a capital offence or for life imprisonment against the personnel of security forces with a view to screen off the actual offenders of the Left Wing (Naxal) terrorism. 33. Mr. Mehta would submit that if such palpably false and motivated writ petition at the instance of an NGO is entertained by this Court, then the same may lead to disastrous results as the very morale of the different police and paramilitary forces fighting against the Naxals would be shaken. 34. Mr. Mehta, in the course of his submissions, highlighted a very shocking picture as to how the Naxalites, over a period of time, have brutally killed the members of the police forces. According to Mr. Mehta, the mastermind behind this writ petition is the Petitioner No. 1 claiming to run an NGO for the welfare and interest of the tribals. According to Mr. Mehta, the Petitioners Nos. 2 to 13 are absolutely rustic and illiterate tribals. It is at the instigation of the Petitioner No. 1 that they might have thought fit to join as the Petitioners. 35. Mr. Mehta would submit that this petition is of the year 2009. Alm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with them. We are of the view that their security is a paramount consideration. It is equally important that they should be allowed to express themselves freely without being influenced by any outside agencies or individuals. In the circumstances, we consider it appropriate to request Mr. G.P. Mittal, District Judge-I, Tis Hazari, Delhi to record their statements in the presence of the interpreter, namely, Mohan Sinha, as well as the first Petitioner Mr. Himanshu Kumar, who is stated to be conversant with their language. The District Judge shall first satisfy to himself that the Petitioners, who are required to be examined by him are not under any pressure or threat from any quarter whatsoever. We also request the District Judge to ensure their safety as along as they are in Delhi, for which purpose the Union of India shall comply with such directions as may be issued by the District Judge from time to time. The learned Attorney General for India has stated before us that in terms of the directions to be issued by the District Judge, the Union of India shall ensure their safety and protection. We also permit the learned Counsel for the Petitioner Shri Colin Gonsalves or an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istration: 18/09/2009 Sections: 147, 148, 149, 307 Indian Penal Code; 25, 27 Arms Act. Date of Incident: 17.09.2009. Complainant: Shri Ravindra Singh, Assistant Commdt. 201 Cobra Bn. Accused: Unknown Maoist Cadres and Sangam Members Allegations: On information about the presence of Naxal cadres, an anti-naxal operation was launched on 16.09.2009 from PS Bhejji towards Gachchanpalli, Aitrajpad and Entapad by the Security forces. Naxals made a life threatening attack on security forces near Gachchanpalli and run away putting their shelter on fire. Gist of Final Report: Even after a long search no Accused were found and on no possibility of finding in near future, closure report was filed before the Hon'ble court on 20.10.2010. Present Status: According to the closure report presented by the investigating officer, even after a long search no Accused were found and on no possibility of finding in near future closure report is accepted on 26.10.2010 by the learned chief Judicial Magistrate. Crime No.: 10/2009: Police Station: Chintagufa Date of Registration: 20/09/2009 Sections: 395, 397, 147, 148, 149, 302 Indian Penal Code; 25, 27 Arms Act; 3, 4 Explosive. Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report of applicant Madvi Hadma, resident of Gachchanpalli, FIR No. 06/2010 Under Section 147, 148, 149, 302 Indian Penal Code & 25, 27 Arms Act was registered at Police Station Bhejji against unknown naxalites for murder of Madvi Hidma, Madvi Joga, Kawasi Ganga, Madkami Chula & Dudhi Muye. Gist of Final Report: Chargesheet filed on 09/09/2010 against 10 named absconding Accused Under Section 147, 148, 149, 302 Indian Penal Code; 25, 27 Arms Act. Present Status: Permanent warrant has been issued against the absconding Accused by the Hon'ble Judicial Magistrate First Class Konta. INCIDENT 2: 01.10.2009 (Gompad) 6. In respect of the incident dated 01.10.2010 that took place at Gompad, the State of Chhattisgarh has already registered following FIRs against the offences committed on that day. The details of the FIRs are: Crime No.: 05/2009 Police Station: Bhejji Date of Registration: 25/11/2009 Sections: 147, 148, 149, 307 Indian Penal Code; 25, 27 Arms Act. Date of Incident: 01.10.2009. Complainant: Shri Matram Bariha, Head Constable, PS.-Bhejji Accused: Unknown Uniformed Naxalites in large numbers. Allegations: On the information of increased activities a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g gun and banda. Absconding Accused- 1-Venktesh s/o. Unknown 2-Rajesh alias Joga s/o. Unknown 3-Vijay alias Vijay alias Ekanna 4-Savitri Bhai w/o. Unknown 5-Manila w/o. Unknown 6-Bhima s/o. Unknown 7-Jayram s/o. Unknown 8-Samita w/o. Chandrana 9-Bhaskar alias Rajesh s/o. Venkteshwerlu 10-Kavita D/o. Jayram Allegations: On 22/02/2010 upon report of applicant Komram Lachcha, resident of Chintagufa, FIR No. 07/2010 Under Section 147, 148, 149, 302 Indian Penal Code & 25, 27 Arms Act was registered at PS-Bhejji against unknown naxalites for murder of Komram Mutta. Gist of Final Report: Chargesheet filed on 09/09/2010 against 10 named absconding Accused Under Section 147, 148, 149, 302 Indian Penal Code & 25, 27 Arms Act. Present Status: Permanent warrant has been issued against the absconding Accused by the Hon'ble Judicial Magistrate First Class Konta. 41. Mr. Sodhi also highlighted the following contradictions and anomalies in the case of the Petitioners: 1. Hot oil theory retracted: Petitioner claimed in the Writ Petition at Page E of the Synopsis and Page 9 of the Petition Paper book that one Muchki Deva (60yrs) of Ondhepara was grazing cattle o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner No. 13. 4. Non-corroboration of contents of Writ Petition with statements made by the Petitioners before District Judge appointed by this Court-- Looking at the seriousness of the allegations contained in the Writ Petition, which were vehemently denied by the State, this Court directed that statements of Petitioner Nos. 2-13 be recorded by a District Judge at New Delhi. A bare perusal of the statements made by the Petitioners reveal that none of the Petitioners corroborate the allegations made in the writ petition. Further the Petitioners do not even say that their relatives were killed by uniformed persons.-Ref can be made to the Statements-Page 154 onwards 5. No Affidavit of authorisation of Petitioners No. 2 to 13 It is pertinent to note that the present petition has been filed by the Petitioner No. 1 (Himanshu Kumar) on behalf of Petitioner No. 2 to 13. However, there is no affidavit on record whereby Petitioners No. 2 to 13 have authorised Petitioner No. 1. 42. In such circumstances referred to above, Mr. Sodhi prays that there being no merit in the present writ petition, the same may be rejected with exemplary costs and appropriate actions against each of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court, after considering the material on record, comes to the conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency. 46. In an appropriate case when the Court feels that the investigation by the police authorities is not in a proper direction, and in order to do complete justice in the case and if high police officials are involved in the alleged crime, the Court may be justified in such circumstances to handover the investigation to an independent agency like the CBI. By now it is well-settled that even after the filing of the charge sheet the court is empowered in an appropriate case to handover the investigation to an independent agency like the CBI. 47. The extraordinary power of the Constitutional Courts Under Articles 32 and 226 respectively of the Constitution of India qua the issuance of directions to the CBI to conduct investigation must be exercised with great caution as underlined by this Court in the case of Committee for Protection of Democratic Rights, West Bengal (supra) as adverted to herein above, observing that although no inflexible guidelines can be laid down in this regard, yet i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er independent investigating agency like CBI only in rare and exceptional cases. Such as where high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to instil confidence in the investigation or where the investigation is prima facie found to be tainted/biased. 50. The Court reiterated that an investigation may be transferred to the CBI only in "rare and exceptional cases". One factor that courts may consider is that such transfer is "imperative" to retain "public confidence in the impartial working of the State agencies." This observation must be read with the observations made by the Constitution Bench in the case of Committee for Protection of Democratic Rights, West Bengal (supra), that mere allegations against the police do not constitute a sufficient basis to transfer the investigation. 51. In Romila Thapar v. Union of India, (2018) 10 SCC 753, one of us, A.M. Khanwilkar, J., speaking for a three-Judge Bench of this Court (Dr. D.Y. Chandrachud, J. dissenting) not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been made out. 57. The filing of the charge sheets at the conclusion of the investigation into the various FIRs referred to above would indicate that the alleged massacre was at the end of the Naxalites (Maoists). The materials collected in the form of the charge sheets substantiate the case put up by the Respondents that the villagers were attacked and killed by the Naxalites. There is not an iota of material figuring in the investigation on the basis of which even a finger can be pointed towards the members of the police force. 58. If we go by the tenor of the writ petition, it gives an impression that proper investigation is not being done and, therefore, the same should be handed over to the CBI. However, the fact is that the investigation has already been carried out and charge sheets have been filed. Unfortunately, neither the learned Senior Counsel appearing for the writ Petitioners nor any of the writ Petitioners, more particularly, the writ Petitioner No. 1, the protagonist behind the filing of the present writ petition, running an NGO, has any idea about the charge sheets and the materials collected in the course of the investigation. If the investigation has already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjoining Room No. 302 in Tis Hazari Court. In the first instance, Petitioner No. 2 Shri Soyam Rama has been called. Apart from the abovenamed Counsel for the parties, Petitioner No. 1 Shri Himanshu Kumar and interpreter Shri Mohan Sinha have also been called in room No. 302. Petitioner No. 2 has been made to sit in the middle of the Petitioner No. 1 and Shri Mohan Sinha, the interpreters. Let statement of Sh. Soyam Rama be recorded. Question: What is your name? Ans.: My name is Soyam Rama Question: Where do you stay? Ans. I am resident of village Gompad. Q. Do you have any proof of identity: Ans. I do not have one. Q. Do you know for what purpose you have been brought here? A. The persons from our family have died and therefore, I have come. Q. Has anybody put any pressure upon you to make any particular statement? Has anybody terrorized you? Ans. Nobody has pressurized or terrorized me. Q. Do you want to make a statement of your own free will? A. Yes. (I am satisfied that Shri Soyam Rama is not under any pressure coercion or terror to make the statement.) I feel that the statement being made by him is out of his free will. Let the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... called upon Mr. Gonsalves to make us understand as to why his clients had to make such statements before the Judicial Officer, a very curious reply came from Mr. Gonsalves. According to Mr. Gonsalves, the entire mode and manner in which the statements were recorded by the Judicial Officer of the rank of District and Sessions Judge was absolutely incorrect. According to the learned Senior Counsel, specific questions ought to have been put by the Judicial Officer to each of the writ Petitioners while recording their statements in accordance with the directions issued by this Court vide order dated 15th February 2010 referred to above. 62. We are afraid, we are not in a position to accept such submission after a period of almost 12 years. The statements we are referring to recorded by the Judicial Officer are of the year 2010. Not once in the last 12 years any grievance has been made either orally or in writing before this Court as regards the mode and manner of recording of the statements. It is for the first time in 12 years that such a grievance has been made. Had the writ Petitioners raised such a plea at the appropriate time and contemporaneously as regards the mode and manner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conviction for a capital offence or for life imprisonment against the personnel of security forces and to screen off the actual offenders of Left Wing (Naxal) terrorism; (b) Pass an order directing CBI/NIA or any other central investigating agency or any other monitoring committee, as this Hon'ble Court deems fit and proper, to register an FIR and conduct an in-depth investigation to identify the individuals/organizations, who have been conspiring, abetting and facilitating filing of petitions premised on false and fabricated evidence before this Hon'ble Court as well as before the Hon'ble High Courts with a motive to either deter the security agencies to act against the Left Wing (Naxal) militia by imputing false charges on them or to screen off the Left Wing (Naxal) militia from being brought to justice by creating a false narrative of victimization before the Hon'ble Courts; (c) And direct appropriate action against the Petitioners and other person/s responsible for the aforesaid acts of perjury; (d) Pass any other just and reasonable orders to meet the ends of justice. 68. We have closely looked into the averments made in the Interlocutory Application. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that a bare perusal of the recordings etc. submitted by the Ld. District Judge before this Hon'ble Court reveals that all the averments made by the Petitioner in the petition were ex-facie false and fabricated and it is now clear that all the said deceitful averments were made by the Petitioner with malicious and audacious attempt to mislead this Hon'ble court and to obtain orders from this Court by playing fraud on its conscience and magnanimity. 9. In the respectful submission of the applicant, it is apparent that the said insolent false averments were made with a malafide objective to change the narrative of the incident and with malicious designs i.e. to portray the dreaded Left Wing Extremists (Naxals), who were waging an armed rebellion against the security forces of the country and threatening the sovereignty and integrity of the country, as innocent tribal victims being massacred by the security forces. 10. This was done with a deceitful design to instigate an instantaneous response of outrage by this Hon'ble Court and mislead it to pass adverse orders against security forces under an erroneous assumption of facts causing an adverse and deterrent effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tfits. In the respectful submission of the applicant the present petition is nothing but a subterfuge and a part of the conspiracy to cover the offence committed by the Left Wing Extremists and to facilitate unhindered future operations by weakening the security forces which is the only challenge deterring their intentions and operations. The Petitioners, in the respectful submission of the applicant, by preferring the instant deceitful petition, have not only conspired and abetted the commissioning of the crime but have also conspired and abetted in covering up the crime and screening the offenders/perpetrators of Left Wing (Naxal) terrorism. 14. It is submitted that scurrilous allegations made against the security personnel of the country have nevertheless has brought about a chilling effect of demoralizing the esprit de corps and self-esteem of the members of the forces, which has been since then acted against national interests. 15. In this perspective, when it is manifested that the present petition was nothing but a fraud on this Hon'ble court, where orders were sought to be obtained from this Hon'ble court through deceitful designs/fabricated and false assertions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said to "to fabricate false evidence". Section 193. Punishment for false evidence.-Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine." Code of Criminal Procedure, 1973 Section 195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (4) of Section 195. (3) A complaint made under this Section shall be signed,- (a) where the Court making the complaint is a High Court, by such officer of the Court as the court may appoint; (b) in any other case, by the presiding officer of the court or by such officer of the Court as the Court may authorise in writing in this behalf. (4) In this section, "Court" has the same meaning as in Section 195. 72. Thus, from the above, it follows that there are two conditions, on fulfillment of which, a complaint can be filed against a person who has given a false affidavit or evidence in a proceeding before a court. The first condition being that a person has given a false affidavit in a proceeding before the court and, secondly, in the opinion of the court it is expedient in the interest of justice to make an inquiry against such a person in relation to the offence committed by him. 73. In K. Karunakaran v. T.V. Eachara Warrier and Anr., reported in AIR 1978 SC 290, this Court held in paragraphs 19, 20 and 21 as under: 19. Chapter XXVI of the Code of Criminal Procedure 1973 makes provisions as to offences affecting the administration of justice. Section 340, Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffence Under Section 199, Indian Penal Code or under either Sections 191 or 192, Indian Penal Code? If it comes under the two latter sections, the present prosecution cannot be sustained, Section 199 deals with a declaration and does not state that the declaration must be on oath. The only condition necessary is that the declaration must be capable of being used as evidence and which any Court of justice or any public servant or other person, is bound or authorized by law to receive as evidence. Section 191 deals with evidence on oath and Section 192 with fabricating false evidence. If we consider this matter from the standpoint of Section 191, Indian Penal Code the offence is constituted by swearing falsely when one is bound by oath to state the truth because an affidavit is a declaration made under an oath. The definition of the offence of giving false evidence thus applies to the affidavits. The offence may also fall within Section 192. It lays down inter alia that a person is said to fabricate false evidence if he makes a document containing a false statement intending that such false statement may appear in evidence in a judicial proceeding and so appearing in evidence may cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s evidence in any Court of Justice or before any public servant or other person, the statement alleged to be false has to be set out and its alleged falsity with reference to the truth found in some document has to be referred to pointing out that the two situations cannot co-exist, both being attributable to the same person and, therefore, one to his knowledge must be false. Rival contentions set out in affidavits accepted or rejected by courts with reference to onus probandi do not furnish foundation for a charge Under Section 199, Indian Penal Code To illustrate the point, Appellant-1 Chandrapal Singh alleged that he was in possession of one room forming part of premises No. 385/2. The learned Additional District Judge after scrutinising all rival affidavits did not accept this contention. It thereby does not become false. The only inference is that the statement made by Chandrapal Singh did not inspire confidence looking to other relevant evidence in the case. Acceptance or rejection of evidence by itself is not a sufficient yardstick to dub the one rejected as false. Falsity can be alleged when truth stands out glaringly and to the knowledge of the person who is making the fal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iously which is found to be false as a result of comparing it with unimpeachable evidence, documentary or otherwise. 79. It is true that an affidavit is 'evidence' within the meaning of Section 191 of the Indian Penal Code and a person swearing to a false affidavit is guilty of perjury. But the matter does not rest here. Before initiating the proceedings for perjury, the court concerned has to consider whether it would be expedient in the interest of justice to sanction such prosecution. What the courts have to see at this stage is whether there is evidence in support of the allegations made by the Union of India (Respondent herein) to justify the initiation of proceedings against the writ Petitioners, more particularly, the writ Petitioner No. 1 herein who had filed the affidavit on behalf of himself and the other writ Petitioners and not whether the evidence is sufficient to warrant his conviction. However, this does not mean that the court should not prima facie be of the opinion that there are sufficient and reasonable grounds for setting the machinery of criminal law in motion against the Accused. As noted above, the Court has further to see that the false statement w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t mandatory, and observed that the preliminary inquiry was itself not mandatory. The Court observed thus: 9. Reading of the Sub-section makes it clear that the hub of this provision is formation of an opinion by the court (before which proceedings were to be held) that it is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed. In order to form such opinion the court is empowered to hold a preliminary inquiry. It is not peremptory that such preliminary inquiry should be held. Even without such preliminary inquiry the court can form such an opinion when it appears to the court that an offence has been committed in relation to a proceeding in that court. It is important to notice that even when the court forms such an opinion it is not mandatory that the court should make a complaint. This Sub-section has conferred a power on the court to do so. It does not mean that the court should, as a matter of course, make a complaint. But once the court decides to do so, then the court should make a finding to the effect that on the fact situation it is expedient in the interest of justice that the offence should further be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 40 of the Code says that if the Magistrate is of opinion, in the aforesaid inquiry, that there is ground for presuming that the Accused has committed the offence he has to frame a charge in writing against the Accused. Such charge shall then be read and explained to the Accused and he shall be asked whether he pleads guilty of the offence charged or not. If he pleads not guilty then the Magistrate has to proceed to conduct the trial. Until then the inquiry continues before the Magistrate. 12. Thus, the person against whom the complaint is made has a legal right to be heard whether he should be tried for the offence or not, but such a legal right is envisaged only when the Magistrate calls the Accused to appear before him. The person concerned has then the right to participate in the pre-trial inquiry envisaged in Section 239 of the Code. It is open to him to satisfy the Magistrate that the allegations against him are groundless and that he is entitled to be discharged. 13. The scheme delineated above would clearly show that there is no statutory requirement to afford an opportunity of hearing to the persons against whom that court might file a complaint before the Magistrate fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons should be made by court while passing an order Under Section 340 of Code of Criminal Procedure. An exercise at that stage is not for finding whether any offence was committed or who committed the same. The scope is confined to see whether the court could then decide on the materials available that the matter requires inquiry by a criminal court and that it is expedient in the interest of justice to have it inquired into. This decision of the Constitution Bench has also been followed in Pritish (supra) observing that the court, when decides to make a complaint Under Section 340, is not to record finding of guilt or innocence of person against whom complaint is to be made before a Magistrate. 83. We may also refer and reply upon the decision of this Court in the case of Aarish Asgar Qureshi v. Fareed Ahmed Qureshi and Anr., reported in (2019) 18 SCC 172, wherein this Court discussed and explained the necessary requirements for the purpose of initiation of proceeding Under Section 340 read with Section 195(1)(b) of the Code of Criminal Procedure. This Court laid much emphasis on two words namely "deliberate" and "intentional". This Court talked about the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be relied upon by a two Judges Bench of this Court in Amarsang Nathaji (supra). While dealing with the propriety of the procedure adopted by the court making a complaint Under Section 340 of the Code of Criminal Procedure, the Bench in Amarsang Nathaji observed as follows: 7. In the process of formation of opinion by the court that it is expedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been committed. It is open to the court to hold a preliminary inquiry though it is not mandatory. In case, the court is otherwise in a position to form such an opinion, that it appears to the court that an offence as referred to Under Section 340 Code of Criminal Procedure has been committed, the court may dispense with the preliminary inquiry. Even after forming an opinion as to the offence which appears to have been committed also, it is not mandatory that a complaint should be filed as a matter of course. (See Pritish v. State of Maharashtra [Pritish v. State of Maharashtra, (2002) 1 SCC 253) 86. The conflict between the two decisions of this Court of equal strength, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... death, [imprisonment for life], or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 90. The essential ingredients for invoking Section 211, Indian Penal Code are that the complaint must have falsely charged a person with having committed an offence. The complainant, at the time of giving the complaint must have known that there is no just or lawful ground for making a charge against the person. This complaint must have been given with an intention to cause injury to a person. 91. The Code of Criminal Procedure does not define what constitutes the making of a "charge" of an offence or what amounts to the "institution of criminal proceedings". But, in our opinion, a false "charge" in this Section must not be understood in any restricted or technical sense, but in its ordinary meaning, of a false accusation made to any authority bound by law to investigate it or to take any steps in regard to it, such as giving information of it to the superior authorities with a view to investigation or other proceedings, and the institutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Instituting or causing to institute false criminal proceedings assume false charge but false charge may be preferred even when no criminal proceedings result. It is frankly conceded by Shri Kohli that the Appellant cannot be said to have instituted any criminal proceeding against any person. So that part of Section 211 Indian Penal Code is eliminated. Now, the expression "falsely charges" in this section, in our opinion, cannot mean giving false evidence as a prosecution witness against an Accused person during the course of a criminal trial. To "falsely charge" must refer to the original or initial accusation putting or seeking to put in motion the machinery of criminal investigation and not when speaking to prove the false charge by making deposition in support of the charge framed in that trial. The words "falsely charges" have to be read along with the expression "institution of criminal proceeding". Both these expressions, being susceptible of analogous meaning should be understood to have been used in their cognate sense. They get as it were their colour and content from each other. They seem to have been used in a technical sense as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegations are made. The statement in order to constitute the "charges" should be made with the intention and object of setting criminal law in motion. 95. Thus, we leave it to the State of Chhattisgarh/CBI (Central Bureau of Investigation) to take appropriate steps in accordance with law as discussed above in reference to the assertions made in the interim application. We clarify that it shall not be limited only to the offence Under Section 211 of the Indian Penal Code. A case of criminal conspiracy or any other offence under the Indian Penal Code may also surface. We may not be understood of having expressed any final opinion on such action/proceedings. We leave it to the better discretion of the State of Chhattisgarh/CBI to act accordingly keeping in mind the seriousness of the entire issue. Thus, the relief prayed for in terms of Para 67(b) hereinabove, of the subject interlocutory application is hereby granted. 96. We have not remained oblivious of Section 195 Code of Criminal Procedure while discussing the aforesaid. We make it clear that having regard to the facts of the present case the bar of Section 195 Code of Criminal Procedure would not apply if ultimate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other hand, if there was no proceeding in any court at all in which, or in relation to which, the offence Under Section 211 could have been alleged to have been committed, this provision barring cognizance would not be attracted at all. 12. In this case, as we have already indicated when enumerating the facts, the complaint of which cognizance was taken by the Judicial Magistrate at Chandigarh was filed on April 11, 1959 and at that stage, the only proceeding that was going on was investigation by the police on the basis of the First Information Report lodged by the Appellant before the Inspector-General of Police on December 10, 1958. There is no mention at all that there was, at that stage, any proceeding in any court in respect of that FIR When examining the question whether there is any proceeding in any court, there are three situations that can be envisaged. One is that there may be no proceeding in any court at all. The second is that a proceeding in a court may actually be pending at the point of time when cognizance is sought to be taken of the offence Under Section 211 Indian Penal Code. The third is that, though there may be no proceeding pending in any court in w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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