Rubabbuddin Sheikh Vs State of Gujarat & Ors.

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) NO.6 OF 2007

Rubabbuddin Sheikh …Petitioner

Versus

State of Gujarat & Ors. …Respondents

WITH

WRIT PETITION (CRL.) NO.115 OF 2007

WITH

CONTEMPT PETITION (CRL.)NO.8 OF 2007 IN WRIT PETITION (CRL.) NO.6 of 2007

J U D G M E N T

TARUN CHATTERJEE, J.

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 encounter

and disappearance of his sister-in-law Kausarbi at the hands

of the Anti Terrorist 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

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to take action. This letter of the Registry of this Court was

issued on 21st of January, 2007. After about six months and

after several reminders, the Director General, Police, Gujarat,

directed Ms. Geetha Johri, Inspector General, Police (Crime),

to inquire about the facts stated in the letter. A case was

registered as Enquiry No. 66 of 2006. From 11th of September,

2006 to 22nd of January, 2007 four Interim Reports were

submitted 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.

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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 witnesses and subsequent identification of the photographs of Sohrabuddin and Kausarbi taken by Inquiry Team of CID Crime there appears to be some discrepancy regarding the presence of Sohrabuddin and Kausarbi at Hyderabad and Ahmedabad which needs to be further enquired into. Further enquiry also needs to be conducted with regards (1) who were the persons who claimed to be police who picked up the three passengers namely Sohrabuddin, Kausarbi and third unknown person. (2) what happened to Kausarbi after 22.11.2005 when the so-called police personnel took her off the bus.”

5. In the same report, Ms. Johri sought permission to

interrogate one Tulsiram who was at that time in Rajasthan

Jail. From the record, it appears that on 27th/28th of

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December, 2006, an FIR was lodged in which it was stated

that when Tulsiram was sent on transit remand from

Rajasthan to Gujarat, two armed persons rescued him at gun

point and fled with Tulsiram. In the said FIR, it has been

alleged that while search was launched to locate Tulsiram

early in the next morning, he, along with two other persons,

was spotted on a highway trying to stop a matador van. It has

also been alleged, that one of the police officers who was

following the matador in which Tulsiram was traveling,

accosted him, upon which Tulsiram was said to have fired at

the Police officer and the bullet was said to have hit the

mudguard of the vehicle. The Police Officers were said to have

fired at Tulsiram in self-defence, killing him. However, the

other two persons somehow managed to escape in the

darkness.

6. One Mr. Raigar, Additional Director General of Police and

Head of CID Gujarat Police who was in-charge of the

investigation on the incident of death of Sohrabuddin and

disappearance of Kausarbi was replaced by one Mr. O.P.

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Mathur, Additional Director General of Police (prison) who was

given an additional charge as Head of CID.

7. Ms. Johri was replaced by Mr. Rajneesh Rai, Deputy

Inspector General, as an Investigating Officer in respect of the

fake encounter relating to the incident of Sohrabuddin's case

and disappearance of Kausarbi.

8. The Writ Petitioner had, on an earlier occasion, filed a

petition under Article 32 of the Constitution of India, praying

for a direction to the Gujarat police to produce Kausarbi and

for a fair and impartial investigation in both the episodes by

the CBI so that the matter goes beyond 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

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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 in a sealed cover. In the meantime, the

report submitted by the Additional Solicitor General for India,

(as he then was), was perused and placed on record. The

matter came up again on 20th of April 2007 for consideration

before this Court. A week's time was granted to enable the

State of Gujarat to make submissions on the report submitted

by Additional Solicitor General for India (as he then was), a

copy of which was ordered to be supplied to the learned

Counsel for the State of Gujarat and other parties.

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10. On 27th of April 2007, the State of Gujarat submitted an

interim report on the investigation conducted by them in

pursuance of the orders of this Court dated 22nd of January,

2007, 19th of March 2007, 20th of March, 2007 and 23rd of

April 2007.

11. At that point of time, it was submitted by the learned

counsel for the State of Gujarat before this Court that if some

more time was granted, a comprehensive status report or

Action Taken Report could be submitted before this Court. The

learned Attorney General for India submitted that in view of

the serious nature of the offence in which some highly placed

police officials of the State of Gujarat were alleged to have been

involved, orders may be immediately passed directing the CBI

to take charge of the investigation and report to this Court.

12. This Court, by an order dated 3rd of May, 2007 ordered

that some more time may be granted to the State of Gujarat

before any further action was taken in the matter. However,

after going through the Interim Report of the Additional

Solicitor General and also the Interim Status Report filed by

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the State of Gujarat, this Court held the view that a prima

facie case was made out for issuance of a Rule Nisi calling

upon the Union of India and the State of Gujarat to show

cause why the order prayed for should not be granted and also

as to why a writ of Habeas Corpus should not be issued to

produce Kausarbi in Court. At that stage, learned senior

counsel appearing for the State of Gujarat brought to the

notice of the court that the body of Kausarbi was disposed of

by burning it in village Illol, Sabarkantha District', which fact

was brought on record in the Action Taken Report No. 3

submitted on 30th of April, 2007. In that view of the matter at

that stage, this Court restrained itself from issuing a formal

writ. The State of Gujarat was directed to submit the final

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

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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 Mr. Rajneesh Rai to

make the investigation jointly and submit a report to this

Court. Mr. Gopal Subramanium, learned Addl. Solicitor

General for India (as he then was) also agreed with the

submissions of Mr.Ahmadi that it was a fit case for handing

over the investigation to CBI from the State of Gujarat.

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14. From the Action Taken Report No. 4 submitted before

this Court on 14th of May, 2007, it was found that the

assistance of Directorate of Forensic Science, Gujarat State,

and BJ Medical College, Ahmedabad has been sought to

obtain advice on the exhibits collected from the scene of

offence. Permission of the Court was also sought for

microanalysis and other related tests in case of the accused

namely, (1) Shri D.B. Vanzara, IPS, Ex-DIG of Police, Border

Range, Kutch-Bhuj, (2) Shri Rajkumar Pandyan, Ex-SP, CID,

IB and (3) Shri Dinesh MN, IPS, SP, Alwar, Rajasthan. The

application was pending then. In Action Taken Report No. 4, it

was also stated that efforts were being made to arrest the

remaining accused officers and men against whom there was

prima facie evidence. Efforts were being made to trace the

remains of Kausarbi. A well where reportedly the remains of

Kausarbi were disposed of was dug up and samples collected

were sent to Forensic Science Laboratory, Gandhinagar for

further analysis and for comparison with the soil samples

taken from the scene where the body of Kausarbi was alleged

to have been disposed of by burning at Illol Village,

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Sabarkanta District, in the State of Gujarat. From the Action

Taken Report No. 4 it appeared that the following

investigations were still awaited:

a. Andhra Pradesh Police Personnel who helped the

ATS, Gujarat in picking up the accused was yet to be

identified. Cooperation of DGP & IGP, Andhra Pradesh

was enlisted in this regard.

b. Apprehension of accused of Rajasthan for which

help of DGP & IGP Rajasthan was enlisted.

c. Reports from Directorate of Forensic Science,

Gujarat State.

d. Identification of the farm house to which Kausarbi

was shifted and method by which she might have died

and those involved in the crime, if any.

15. From the aforesaid report, it also appeared that the

charge sheet shall be filed as soon as the evidence came on

record. It was observed by this Court at that point of time that

on a perusal of the materials already brought on record, it was

11

difficult to conclude at that stage that the 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.

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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 remains of a human body. As

per FSI dated 28th of May, 2007, nothing incriminating was

found.

19. The investigation was pending with respect to i) Arrest of

two police personnel ii) To establish the identity of Andhra

Pradesh Police personnel who might have unofficially helped

ATS officials.

20. Charge sheet was proposed to be filed within prescribed

time frame against the accused who was arrested.

21. On 16th of July, 2007, this Court directed that a copy of

the charge sheet must be supplied to the Addl. Solicitor

General for India (as he then was) after taking note of the fact

that the 6th Action Taken Report dated 14th of July, 2007 was

filed in court. This Report reiterated the stand that no official

assistance was rendered by Andhra Pradesh Police to ATS

Gujarat. Charge sheet had been filed in the Court of Chief

Metropolitan Magistrate against 13 accused for Criminal

13

Conspiracy, abduction, wrongful confinement, murder etc. 13

have been arrested. One of the 13 accused whose names had

been listed is one Mr. N.V. Chauhan, PSI who, in the previous

ATR, had been mentioned as yet to be arrested. However, the

name of one Mr. Jadeja, Driver PC who was also supposed to

be arrested as per previous ATR, did not appear among the

names of the accused who were arrested. Evidently, he had

not been charge sheeted.

22. The motives for killings was attributed as “name, fame

and promotion”, in case of Sohrabuddin’s death and

“destruction of evidence”, in Kausarbi’s case.

23. The report expressly states that no link of Tulsiram

Prajapati had been established in this case. The third person

who was abducted was not to be said Tulsiram Prajapati.

24. Ms.Johri also stated that the investigation had been

carried on in a fair and impartial manner under her direct

supervision.

25. It was stated that the writ petitioner did not cooperate

with the investigation. It is also stated that copies of ATR

cannot be supplied as the same would help the accused.

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26. On 2nd of August, 2007, the Seventh Action Taken Report

was filed, which stated that the third person who was picked

up was one Kalimuddin, who was suspected to be an informer

of Police. He could be hiding somewhere, unharmed. It again

detailed the efforts of the State CID (Crime) to make sure that

none of the accused goes scot-free. Accused Police Officers,

irrespective of their rank, had been arrested. They were

suspended 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.

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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.

30. The details of communication between the witnesses and

the owner of the Crane which was sent to pull out the tempo

which got bogged while carrying firewood for the cremation of

Kausarbi’s body were revealed. The call details revealed the

movements of the accused, their connection between each

other, and the wrongful confinement of Kausarbi and

Sohrabbuddin in Disha farm.

31. In order to establish motive as mentioned in the charge

sheet, details of 15 criminal cases in which Sohrabbuddin was

involved were collected. Efforts were still made to trace

Kalimuddin and to identify the Police officers and men of

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Andhra Pradesh who had allegedly helped the accused though

no involvement of the Police Personnel of Andhra Pradesh was

suspected. On the question of NARCO Analysis, the matter

was heard by this Court and the judgment was kept reserved.

FSL Gujarat had stated that NARCO Analysis would be

conducted only with the consent of the accused. The

Investigating Officer was asked to move the High Court in the

matter.

32. After eight Action Taken Reports were submitted and

objections thereto were also filed by the parties, the writ

petition came up for final hearing for the purpose of deciding

whether in the facts and circumstances of the present case, it

would be just and proper to transfer the case to the CBI

Authorities for the purpose of investigation into the allegations

made on behalf of the writ petitioner. On this aspect of the

matter, we have heard Mr.Dushyant Dave, learned senior

counsel for the writ petitioner and Mr.Gopal Subramanium,

learned Solicitor General for India, who appeared as Amicus

Curiae and Mr.Mukul Rohtagi, learned senior counsel for the

State of Gujarat and other learned counsel appearing for the

17

parties. After hearing the learned senior counsel and after

going through the eight Action Taken Reports and other

materials on record, two questions were articulated by the

learned counsel for the parties - one is whether after the

charge sheet was submitted by the police and the trial was

going on, under that circumstances whether the investigation

can be transferred to the CBI Authorities. Secondly, it was

argued that in respect of the fact that eight Action Taken

Reports were submitted but from the said reports, it would be

clear that the Police Authorities of the State of Gujarat were

not taking proper action in the matter although 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

18

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 investigation from the

police authorities. The learned counsel for the writ petitioner

also placed strong reliance on a decision of this Court in the

case of Gudalure M.J.Cherian & Ors. vs. Union of India

[1992 (1) SCC 397] from which it also appears that although

the charge sheet was filed in that case, this Court directed the

CBI to hold further investigation in respect of the offence so

committed. Similar is the question raised in P & H High

Court Bar Association vs. State of Punjab & Ors. [AIR 1994

SC 1023] in which case also the investigation was handed over

19

to the CBI Authorities after the charge sheet was submitted in

the court. While making such order, this Court observed :

“The High Court was wholly unjustified in closing its eyes and ears to the controversy which had shocked the lawyer fraternity in the Region. For the reasons best known to it, the High Court became wholly oblivious to the patent facts on the record and failed to perform the duty entrusted to it under the Constitution. After giving our thoughtful consideration to the facts and circumstances of this case, we are of the view that the least the High Court could have done in this case was to have directed an independent investigation/enquiry into the mysterious and most tragic abduction and alleged murder of Kulwant Singh, Advocate and his family.

We are conscious that the investigation having been completed by the police and charge-sheet submitted to the court, it is not for this Court, ordinarily, to reopen the investigation. Nevertheless, in the facts and circumstances of the present case, to do complete justice in the matter and to instill confidence in the public mind it is necessary, in our view, to have fresh investigation in this case through a specialised agency like the Central Bureau of Investigation (CBI).”

33. Accordingly, the learned senior counsel appearing for the

writ petitioner submitted that even if the charge sheet was

submitted it was still open to the court to direct investigation

to be made by the CBI Authorities and accordingly in view of

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the above position in law, this Court, considering the facts and

circumstances of the present case, should direct the CBI

Authorities to investigate the offences alleged to have been

committed by some of the police authorities of the State of

Gujarat and submit a report if this Court is of the view that

the State Police Authorities 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:

21

“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 authorities concerned have not failed to perform their legal obligations and have reasonably come to such conclusion. No such report having been submitted by the CBI or any other agency till now in this Court, action on such report by this Court would be considered, if and when that occasion arises.”

35. Subsequent to the aforesaid decision of this Court,

another decision of this Court, namely, Union of India vs.

Sushil Kumar Modi [1998 (8) SCC 661] was relied on by

Mr.Rohatgi, learned senior counsel in which this Court

observed after considering and following the decision in Vineet

Narayan’s case that once a charge sheet is filed, the

adequacy or otherwise of the charge sheet and the

investigation cannot be gone into by this Court under Article

32 of the Constitution of India and the only remedy which can

be pursued if any aggrieved party feels that in some areas the

22

investigation is inadequate is an application under Section

173 (8) of the Code of Criminal Procedure. This Court observed

as follows:

“This position is so obvious that no discussion of the point is necessary. However, we may add that this position has never been doubted in similar cases dealt with by this Court. It was made clear by this Court in the very first case, namely, Vineet Narain v. Union of India that once a chargesheet is filed in the competent court after completion of the investigation, the process of monitoring by this Court for the purpose of making the 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) of the Code of Criminal Procedure. We make this observation only to reiterate this clear position in law so that no doubts in any quarter may survive. It is therefore clear that the impugned order of the High Court dealing primarily with this aspect cannot be sustained.”

36. Another decision of this Court which was strongly relied

on by Mr.Mukul Rohatgi, learned senior counsel appearing for

the State of Gujarat is the decision in Rajiv Ranjan Singh

‘Lalan’ (VIII) and Anr. Vs. Union of India & Ors. [2006 (6)

23

SCC 613]. In this decision referring to the case of Sushil

Kumar Modi (supra) and Vineet Narayan (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 Procedure,

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1973, the CBI Authorities cannot be directed to investigate

into the matter.

38. Before we take up the decisions cited at the Bar from the

side of the writ petitioner, we may deal with the decisions cited

by Mr.Rohatgi, learned senior counsel appearing for the State

of Gujarat. The first decision is Vineet Narayan (supra). In

that case, it was alleged that the CBI and the Revenue

Authorities had failed to perform their duties and legal

obligations inasmuch as the investigation into “Jain Diaries”

seized in raids conducted by the CBI is concerned.

39. From a careful examination of this decision of this Court

relied on by the learned senior counsel appearing for the

respondent, we are not in a position to say that the said

decision has clearly held that after the charge sheet is

submitted, the question of handing over the investigation of

the criminal case to the CBI cannot arise at all. From that

decision, it is clear that the CBI and the Revenue Authority

had failed to perform their duties and legal obligations

inasmuch as the investigation into ‘Jain Diaries’ seized in

raids conducted by the CBI was concerned. Therefore, we are

25

unable to accept the contention of Mr.Rohatgi that this

decision can at all help the State of Gujarat to substantiate

their argument that after the charge sheet is filed in court,

there was no question that the investigation cannot be handed

over to the CBI authorities. So far as the decision cited by

Mr.Rohatgi in Union of India vs. Sushil Kumar Modi (supra)

is concerned, it is clear that the said decision was rendered

following the decision in the case of Vineet Narayan (supra).

In view of our discussions made in respect of the Vineet

Narayan’s case, we do not think that any advantage could be

taken by the State of Gujarat to hold that after the charge

sheet is submitted it was not open for the court to hand over

the investigation to an independent agency.

40. In Vineet Narayan’s case (supra), the fact was that the

investigation was already with the CBI Authorities and in that

investigation charge sheet was submitted. In that context, this

Court observed that once the charge sheet has been

submitted, the CBI Authorities cannot approach the High

Court for issuance of directions in such investigation where

the charge sheet was already submitted.

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41. In Sushil Kumar Modi (supra), we find that the

investigation was 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

27

State of Gujarat, is concerned, we find that this decision was

also rendered relying on Sushil Kumar Modi’s case (supra)

and Vineet Narayan’s case (supra) as noted herein earlier. In

that case also, the process of monitoring by this Court for the

purpose of making the CBI investigating agency perform their

functions and investigate into the offence would come to an

end but it is repeated that in the present case the question is

whether an investigation can be handed over to the CBI

authorities even if the charge sheet is submitted. The question

of monitoring investigation by the CBI Authorities in all the

three cases cited by Mr.Rohatgi in the facts and circumstances

of the present case cannot arise at all.

43. It was next contended by Mr.Rohatgi, learned senior

counsel for the State of Gujarat that it was not open for this

court under Article 32 of the Constitution to direct the CBI

Authorities or any other independent agency to investigate into

the matter when the police authorities are proceeding with the

trial and charge sheet has already been submitted. Therefore,

according to Mr.Rohatgi when there is specific remedy

provided under the Code of Criminal Procedure, 1973, this

28

Court cannot again direct the CBI to investigate into the

offence alleged by allowing a writ petition under Article 32 of

the Constitution.

44. In support of this contention, reliance was also placed in

the case of Aleque Padamsee & Ors. vs. Union of India &

Ors. [2007 (6) SCC 171].

45. Reliance was also placed in a decision of this Court in

M.C.Mehta vs. Union of India & Ors. [2008 (1) SCC 407]

where this Court held that once the court is satisfied itself that

a proper investigation has been carried out, it would not

venture to take over the functions of the Magistrate or pass

any order which would interfere with its judicial functions.

Accordingly, Mr.Mukul Rohatgi submitted that in the absence

of any error being committed by the police authorities in

conducting the investigation, it would not be proper for this

Court to exercise its power under Article 32 of the Constitution

and direct that the CBI authorities or any other independent

agency should be given the charge of investigating the offence

alleged in this writ petition.

29

46. Accordingly, Mr.Mukul Rohatgi, learned senior counsel

submitted that in view of the decisions of this Court, it would

not be proper for this Court at this stage, when the

investigation has been carried out by the police without any

blemish, 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

30

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. State of U.P. (AIR 1994 SC 38) on

which reliance was placed by the learned senior counsel

appearing for the writ petitioner, this Court observed :

“We have perused the events that have taken place since the incidents but we are refraining from entering upon the details thereof lest it may prejudice any party but we think that since the accusations are directed against the local police personnel it would be desirable to entrust the investigation to an independent agency like the Central Bureau of Investigation so that all concerned including the relatives of the deceased may feel assured that an independent agency is looking into the matter and that would lend the final outcome of the investigation credibility. However, faithfully the local police may carry out the investigation, the same will lack credibility since the allegations are against them. It is only with that in mind that we having thought it both advisable and desirable as well as in the interest of justice, to entrust the investigation to the Central Bureau of Investigation.”

(Emphasis supplied)

49. This decision clearly helps the writ petitioner for handing

over the investigation to the CBI Authorities or any other

31

independent agency. It is an admitted position in the present

case that the accusations are directed against the local police

personnel in which High Police officials of the State of Gujarat

have been made the accused. Therefore, it would be proper for

the writ petitioner or even the public to come forward to say

that if the investigation carried out by the police personnel of

the State of Gujarat is done, the writ petitioner and their

family members would be highly prejudiced and the

investigation would also not come to an end with proper

finding and if investigation is allowed to be carried out by the

local police authorities, we feel that all concerned including

the relatives of the deceased may feel that investigation was

not proper and in that circumstances it would be fit and

proper that the writ petitioner and the relatives of the

deceased should be assured that an independent agency

should look into the matter and that would lend the final

outcome of the investigation credibility, however, faithfully the

local police may carry out the investigation, particularly when

the gross allegations have been made against the high police

officials of the State of Gujarat and for which some high police

32

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

33

allegations made against the high police officials of the State in

respect of which some of them have already been in custody,

we feel it proper and appropriate and in the interest of justice

even at this stage, that is, when the charge sheet has already

been submitted, the investigation shall be transferred to the

CBI Authorities for proper and thorough investigation of the

case. In Kashmeri Devi (supra), this Court also observed as

follows : -

“Since according to the respondent charge-sheet has already been submitted to the Magistrate we direct the trial court before whom the charge sheet has been submitted to exercise his powers under Section 173(8) Cr. P.C. to direct the Central Bureau of Investigation for proper and thorough investigation of the case. On issue of such direction the Central Bureau of Investigation will investigate the case in an independent and objective manner and it will further submit additional charge sheet, if any, in accordance with law.”

52. In Gudalure M.J.Cherian (supra), in that case also the

charge sheet was submitted but inspite of that, in view of the

peculiar facts of that case, the investigation was transferred

from the file of the Sessions Judge, Moradabad to Sessions

Judge, Delhi. Inspite of such fact that the charge sheet was

34

filed in that case, this Court directed the CBI to hold further

investigation inspite of the offences committed. In this case at

Page 400 this court observed :

“…………………….The investigation having been completed by the police and the charge sheet submitted to the court, it is not for this court ordinarily to reopen the investigation specially by entrusting the same to a specialized agency like CBI. We are also conscious that of late the demand for CBI investigation even in police cases is on the increase. Nevertheless – in a given situation, to do justice between the parties and to instill confidence in the public mind – it may become necessary to ask the CBI to investigate a crime. It only shows the efficiency and the independence of the agency.”

53. In this connection, we may reiterate the decision of this

Court in the case of P & H High Court Bar Association

(supra) strongly relied on by the learned senior counsel

appearing for the writ petitioner. A reference of the paragraph

of the said decision on which reliance could be placed has

already been made in Para No.32 from which it would be

evident that in order to do complete justice in the matter and

to instill confidence in the public mind, this court felt it

35

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 discussion in mind, that is to say, in an

appropriate case, the court is empowered to hand over the

36

investigation to an independent agency like the CBI even when

the charge sheet has been submitted, we now deal with the

facts of this case whether such investigation should be

transferred to the CBI Authorities or any other independent

agency in spite of the fact that the charge sheet has been

submitted in court. On this ground, we have carefully

examined eight Action Taken Reports submitted by the State

Police Authorities before us and also the various materials

produced and the submissions of the learned counsel for both

the parties. From a careful examination of the materials on

record including the eight Action Taken Reports submitted by

the State Police Authorities and considering the respective

submissions of the learned senior counsel for the parties, we

are of the view that there are large and various discrepancies

in such reports and the investigation conducted by the police

authorities of the State of Gujarat and also the charge sheet

filed by the State Investigating Agency cannot be said to have

run in a proper direction. It appears from the charge sheet

itself that it does not reveal the identity of police personnel of

Andhra Pradesh even when it states that Sohrabbuddin and

37

two others were picked up by Gujarat Police Personnel,

accompanied by seven personnel of Hyderabad Police. It also

appears from the Chargesheet that Kausarbi was taken into

one of the two Tata Sumo Jeeps in which these police

personnel accompanied the accused. They were not even

among the people who were listed as accused. Mr.Gopal

Subramanium, Addl. Solicitor General for India (as he then

was) was justified in making the comment that an honest

investigating agency cannot plead their inability to identify

seven personnel of the Police Force of the State.

56. From the charge sheet, it also appears that the third

person was ‘sent somewhere’. However, it appears that the

literal translation of the Chargesheet in Gujarati would mean

that he was ‘anyhow made to disappear’. From this, we are

also satisfied that an attempt was made by the investigating

agency of the State of Gujarat to mislead the Court. Also there

had been no mention of Accused No. 12 (Dr.N.K.Amin) as a

part of the criminal conspiracy in the charge sheet, who

otherwise finds mention in the original charge sheet.

38

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

39

that it was not Tulsiram. In our view, the facts surrounding

his death evokes strong suspicion that a deliberate attempt

was made to destroy a human witness.

59. So far as the call records are concerned, it would be

evident from the same that they had not been analyzed

properly, particularly the call data relating to three senior

police officers either in relation to Sohrabbuddin’s case or in

Prajapati’s case. It also appears from the charge sheet as well

as from the eight Action Taken Reports that the motive, which

is very important in the investigation reports was not properly

investigated into as to the reasons of their killing. The motive

of conspiracy cannot be merely fame and name. No

justification can be found for the investigating officer Ms. Johri

walking out the investigation with respect to Tulsiram

Prajapati’s death without even informing this Court. That

apart, the charge sheet was filed in the court of Chief

Metropolitan Magistrate, Ahmedabad against 13 persons who

were charge sheeted for criminal conspiracy, abduction,

wrongful confinement and murder etc. 13 were arrested. One

of the 13 accused whose names had been listed is one

40

Mr.N.V.Chauhan, PSI who in the previous Action Taken

Report, was mentioned as yet to be arrested. However, in the

5th Action Taken Report, the name of Mr.Jadeja, driver (Police

Constable) who was also supposed to be arrested as per

previous Action Taken Report was not appearing among the

names of the accused who were arrested. Evidently, he had

not been charge sheeted. From the above factual discrepancies

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. 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 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

41

was not forwarded to this Court. Therefore, 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

42

further submitted that the investigation and charge sheet were

silent on the motive behind the ‘killings’. The only motive stated

is fame. In the cases of Babu Lodhi v. State of UP (1987) 2

SCC 352 and Prem Kumar and Anr. v. State of Bihar,

(1995) 3 SCC 228 , it was held that motive assumes greater

significance in case where the case rests on circumstantial

evidence, as in the present case. That apart, from the Action

Taken Reports submitted by the State Police Authorities, we

also find that the State Police Authorities of the Gujarat had to

take help from the other police officials of other States, namely,

Andhra Pradesh and Rajasthan. If the investigation is

transferred to the CBI Authorities it would be fair and proper

that the other State police officials should also help the CBI

Authorities in coming to a final conclusion on the allegations

made by the writ petitioner and also on the offences alleged to

have committed by some of them.

61. Mr.Rohatgi, learned senior counsel appearing for the

State of Gujarat sought to argue that when the State of

Gujarat had completed free and professional investigation, and

also had filed periodical Action Taken Reports and since the

43

elaborate charge sheet had also been filed by the State

including all documentary, oral and scientific evidence, along

with the papers pertaining to the preliminary inquiry including

the periodical interim reports submitted by the Inquiry officer

to the Supervisory officer during such inquiry, it would not be

proper for this Court to transfer the investigation to any other

agency. According to Mr.Rohatgi, if this Court finds that the

investigation is incomplete in respect of lacunae in respect of

which other remedies are available, in that case it would be

open to this court to direct further investigation in respect of

lacunae to be filled up by further investigation. This was not

the position in the present case. According to Mr.Rohatgi, a

detailed charge sheet has been filed and subsequent to the

filing of the said detailed charge sheet, a supplementary

charge sheet has also been filed on 10th of December, 2007

with complete evidence including oral, documentary and

scientific evidence to bring home the guilt of the accused

before the Competent Court. Mr.Rohatgi further submitted

that the findings in the Charge-sheet have already been

summarized in the affidavit and the Investigating Agency has

44

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

45

investigation by the State Police Authorities, Mr.Rohatgi

submitted that the enquiry was conducted in an independent

and impartial manner and the investigating team has been

given complete independence with respect to such an enquiry.

64. It was further contended by Mr.Rohatgi that the writ

petitioner approached the competent court under Section

173(8) of the Cr.P.C. in accordance with whose directions,

further investigation was also conducted. The report on such

investigation could not be submitted before this Court because

this Court had stayed the proceedings before the Competent

Court and the report is kept sealed with the Registrar General

of the High Court of Gujarat. The lacunae that the writ

petitioner raised during the oral submissions do not find place

in the application that he filed before the Competent

Authority. Under these circumstances and in view of the

submissions made by Mr.Rohatgi, as noted herein earlier, the

jurisdiction of this Court under Article 32 of the Constitution

would come to an end as soon as a charge sheet is filed after

conducting an investigation under the supervision and

monitoring of this Court.

46

65. In view of our discussions made herein earlier and the

submissions of the learned senior counsel for the parties and

the Amicus Curiae and keeping in mind the earlier various

directions given by this Court to the Police Authorities of the

State of Gujarat and the materials on record, we are of the

view that although the charge sheet was submitted but

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, the investigation concluded in the

present case cannot be said to be satisfactorily held. We have

already discussed the decisions cited from the Bar on the

question that after the charge sheet being filed whether the

investigation could be handed over to the CBI Authorities or to

any other independent agency from the State police

authorities. We have already distinguished the decisions cited

by the State that they related to the power of the court to

monitor the investigation after the charge sheet was filed. The

scope of this order, however, cannot deal with the power of

this Court to monitor the investigation, but on the other hand

in order to make sure that justice is not only done, but also is

47

seen to be done and considering the involvement 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.

48

66. Accordingly, in the facts and circumstances even at this

stage the police authorities of the State are directed to hand

over the records of the present case to the CBI Authorities

within a fortnight from this date and thereafter the CBI

Authorities shall take up the investigation and complete the

same within six months from the date of taking over the

investigation from the State police authorities. The CBI

Authorities shall investigate all aspects of the case relating to

the killing of Sohrabuddin and his wife Kausarbi including the

alleged possibility of a larger conspiracy. The report of the CBI

Authorities shall be filed in this Court when this court will

pass further necessary orders in accordance with the said

report, if necessary.

67. We expect that the police authorities of Gujarat, Andhra

Pradesh and Rajasthan shall co-operate with the CBI

authorities in conducting the investigation properly and in an

appropriate manner.

68. The Registry shall send copies of this judgment forthwith

to the Director, CBI, the Secretary, Ministry of Home

49

Affairs, Government of India, and the Secretary, Home

Ministry, State of Gujarat.

Writ Petition (Crl.) No.115 of 2007 :–

So far as W.P.(Crl.) No.115 of 2007 is concerned, let this

matter be listed after eight weeks before an appropriate Bench.

Contempt Petition (Crl.) No. 8 of 2007 in Writ Petition (Crl.) No.6/2007 :-

So far as contempt petition being Contempt Petition (Crl.)

No.8 of 2007 is concerned, we are of the view that in view of

our final order passed in the main writ petition being

W.P.(Crl.)No.6 of 2007, we do not find any reason to proceed

with this contempt application any further. Accordingly, the

contempt petition is disposed of. Notice, if there be any, stands

discharged.

……………………….J. [Tarun Chatterjee]

New Delhi; ………………………..J. January 12, 2010. [Aftab Alam]

50

51

RUBABBUDDIN SHEIKH Vs STATE OF GUJARAT & ORS.

RUBABBUDDIN SHEIKH Vs STATE OF GUJARAT & ORS.