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CASE NO.: Writ Petition (crl.)  6 of 2007

PETITIONER: Rubabbuddin Sheikh

RESPONDENT: State of Gujarat and Ors

DATE OF JUDGMENT: 17/05/2007

BENCH: Tarun Chatterjee & P.K. Balasubramanyan

JUDGMENT: JUDGMENT O R D E R

1.      Acting on a letter written by the 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)  Police Gujarat and Rajasthan Special Task Force (STF), this Court  forwarded the letter to the Director General of Police, Gujarat to take  action. This letter of the Registry of this Court was issued on 21st  January, 2007.  After about six months and after reminders the  Director General, Police, Gujarat, directed Mrs. Geetha Johri,  Inspector General, Police (Crime), to inquire about the facts stated in  the letter. A case was registered as Enquiry No. 66/06. Be it  mentioned herein that about 6 months were taken to direct  investigation into the matter. From 1st September, 2006 to 22nd  January, 2007 four Interim Reports were submitted by one V.L.  Solanki, Police Inspector, working under Mrs. Geetha Johri. Out of  these four interim reports, it appears only one report was submitted  initially in this Court. It was only on 16th May 2007 that the other  three reports have been submitted.

2.      In the report of Mrs. Johri dated 12th May, 2007, 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."    

3.      In the same report, Mrs. Johri sought permission to interrogate  one Tulsiram who was at that time in Rajasthan Jail. From the record  it appears that on 27th /28th  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 on for Tulsiram early in the next morning, he, along  with two other persons, was spotted on a highway trying to stop a  matador. 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

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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.

4.      It appears from the records of this case that 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. Mathur, Additional Director General of Police (prison) who  was given an additional charge as Head of CID.

5.      However, Mrs. Geetha Johri was replaced by  Mr. Rajnish 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. We may take note of the fact that this  petition under Article 32 of the Constitution was moved in this Court  on          22nd January, 2007 when notice was issued only to  respondent No.11, Union of India, and Mr. Gopal Subramanium,  learned Additional Solicitor General, who was present in Court was  requested by this Court to take instruction in the matter.

6.      Subsequently, on 19th March, 2007 the matter came up before  this Court and this time a Bench of this Court issued notice to the  State of Gujarat which was made returnable on 23rd of March, 2007.  Later, on   23rd March, 2007 when the matter was placed before this  Court, three weeks’time was granted to the State to file a report in a  sealed cover and on that date a report was submitted by the Addl.  Solicitor General of India which was also kept in a sealed cover. An  interim report was submitted by Mr. K.T.S. Tulsi, learned senior  counsel appearing on behalf of the State of Gujarat, on 27th April,  2007 in which the State made an interim report on the investigation  conducted by them in consonance with the different orders of this  Court. Mr. Tulsi learned senior counsel for the State of Gujarat sought  more time on 3rd May, 2007 so that a comprehensive status report or  Action Taken Report could be submitted before this Court. Status  Report or the Action Taken Report No.4 was thereafter filed in this  Court by the learned senior counsel for the State of Gujarat. Learned  Attorney General for India who appeared for the Union of 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, directions may be given to the Central  Bureau of Investigation (CBI) to take charge of the investigation and  submit a report to this Court. After perusing the interim report and  other materials on record and considering the submission of the  learned senior counsel for the State of Gujarat that the investigation  was at the final stage, we granted some time to the State of Gujarat to  file a final status report within two weeks from that date by order  dated 3rd May, 2007. However, from the order dated 3rd May, 2007 it  appears that Mr. Tulsi submitted that "body of Kausarbi was disposed  of by burning it in Village Illol, Sabarkanta Distt." which fact was  brought on record in the Action Taken Report No.3 submitted on 30th  April, 2007. In view of this statement made by the State of Gujarat  before us and brought on record in the Action Taken Report No.3, we  refrained ourselves from issuing a formal writ of Habeas Corpus  directing the State of Gujarat to produce Kausarbi in Court. We also  sought an explanation from the State of Gujarat as to the reason why  Mrs. Geetha Johri was taken off the investigation relating to the  incident regarding the death of Sohrabuddin and disappearance of his  wife Kausarbi. The matter was placed for hearing again on 15th May,  2007.

7.      Learned Attorney General for India has seriously submitted that  this is a fit case where this Court should pass an order directing  handing over the investigation from the State Investigating Agency to

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CBI as the investigation would not only be made in the State of  Gujarat but also in the State 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 appearing on behalf of the petitioner, drawing our attention to  the factual aspect of the matter, argued that in the facts and  circumstances of the case and in view of the serious nature of the  same this Court may direct the CBI to take over but at the same time  permit Mrs.Geetha Johri and Mr. Rajnish Rai to make the  investigation jointly and submit a report to this Court.

8.      Mr. Gopal Subramanium, learned Addl. Solicitor General for  India also submitted that it was a fit case for handing over the  investigation to CBI from State of Gujarat. Mr. Gopal Subramanium  further submitted that although it has been accepted by the State of  Gujarat that there were four preliminary reports even than only one  interim preliminary report has been filed in this Court. Therefore,  direction may be given to the State of Gujarat to submit the other  three interim reports before this Court. So far as this grievance of Mr.  Gopal Subramanium is concerned, we find from the record that on  16th May, 2007 three interim reports have been submitted. Mr. K.T.S.  Tulsi, learned senior counsel for the State of Gujarat, however,  submitted that the final report would be submitted to this Court within  4 to 6 weeks’ time from today.

9.      From the Action Taken Report No.4 which has been submitted  before this Court on 14th May, 2007 we find 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 has also  been sought for narcoanalysis 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. However, the  Court has fixed the hearing on the application on 28th May, 2007. In  the said Action Taken Report No.4 it has also been stated that efforts  are being made to arrest remaining accused officers and men against  whom there is prima facie evidence. As noted herein earlier, efforts  have been made to trace remains of Kausarbi. A well where reportedly  the remains of Kausarbi have been dispersed has been dug up and  samples collected have been sent to Forensic Science Laboratory,  Gandhinagar for further analysis for comparison with the soil samples  taken from the scene where the body of Kausarbi was allowed to have  been disposed of by burning at Illol, Sabarkanta District. From the  Action Taken Report No.4 it appears the following investigations are  still pending :

a.      AP Police Personnel who helped the ATS, Gujarat in picking  up the accused are yet to be identified. Cooperation of DGP &  IGP, AP has been enlisted in this regard. b.      Apprehension of accused of Rajasthan for which help of DGP  & IGP Rajasthan is been 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 may have died and those involved in  the crime if any.

10.     From the said report, it also appears that the charge sheet shall  be filed as soon as the evidence comes on record.  

11.     Having heard the learned counsel appearing for the parties and  after examining the interim reports as well as Action Taken Reports

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filed by the State, it is difficult for us to come to a conclusion at this  stage that the investigation are not proceeding towards correct  direction.  

12.     Mr. Tulsi learned senior counsel appearing for the state of  Gujarat submitted as noted herein earlier, that the final report shall be  submitted within four to six weeks from 15th May, 2007. In this view  of the matter and in view of our discussions made herein above, we  are of the view that at this stage we do not find any reason to hand  over the investigation to the CBI from the State of Gujarat, nor we  feel it appropriate to direct the State of Gujarat at this stage to include  Mr. Raigar with Mrs. Johri for completing the investigation.  Accordingly we pass the following orders:-

a)      State of Gujarat is directed to submit its final report on       3rd July, 2007.

b)      In the Action Taken Report No.4 it has been stated that  the investigation is still pending in respect of four items which  have been enlisted herein earlier. Accordingly, we direct the  State of Gujarat to submit the final report on such investigation  on or before the next date of hearing.  

c)      We also direct the State of Gujarat to file an appropriate  affidavit stating all facts relating to the investigation which  have been brought to our notice by Status/Action Taken  Reports in this Court.

d)      Considering the fact that the motive for committing the  murder is yet to be known and in order to establish motive,  investigation may have to be conducted also in two other  different States, namely, State of Rajasthan and State of Andhra  Pradesh, we direct the State of Andhra Pradesh and the State of  Rajasthan and their high police officials to cooperate with the  Investigating Agency of the State of Gujarat.

e)      The Investigating Agency shall submit a report on the  investigation to this Court only and there is no necessity for the  Investigating Agency to take permission from the Director  General of Police, Gujarat in the matter of investigation nor the  DGP shall interfere with such investigation to be conducted by  the Investigating Agency.

13.     Before parting with this order, we may keep it in mind that under the  law, there is a presumption that if the dead body is not found or the  person concerned is not found for a period of seven years, only then  the said person can be presumed to be dead. From the record, till  today no proof of death of Kausarbi has been brought on record. We  will take up this issue on the next date of hearing when the reports as  directed shall be placed before us.  

14. Let this matter be placed before us on 16th of July, 2007.