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

PETITIONER: RUBABBUDDIN SHEIKH

RESPONDENT: STATE OF GUJARAT & ORS

DATE OF JUDGMENT: 03/05/2007

BENCH: Tarun Chatterjee & P.K. Balasubramanyan

JUDGMENT: JUDGMENT

O R D E R

1.      The writ petitioner wrote a letter in the month of December  2005 to the Chief Justice of India complaining about the killing of  his brother, Sohrabuddin, 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).  Taking notice of this letter of the writ petitioner, this Court  forwarded it to the Director General of Police, Gujarat to take further  action. The CID (Crime) conducted an enquiry and the statements of  a number of witnesses, including the petitioner, were recorded.   2.      The writ petitioner came to know that pursuant to preliminary  inquiry of the CID, an interim report about the encounter of the  brother of the writ petitioner and disappearance of his sister-in-law  had been sent to the Court. The said inquiry was conducted by a  team headed by Ms. Geetha Johri, IGP, CID, Crime. Accordingly, it  has been submitted that a concerted effort to scuttle the inquiry and  destroy the material evidence had started- resulting in another fake  encounter with one Tulsiram who was a key link in the alleged  murder of Sohrabuddin and was used by the team of ATS and  Rajasthan STF to trace his whereabouts. The writ petitioner is  apprehensive of the safety of his brother, Nayabuddin who is one of  the witnesses in the present case and is named in the FIR in which  Tulsiram was arrested.  

3.      Under the aforesaid circumstances, the writ petitioner, by  filing the petition under Article 32 of the Constitution of India, has  prayed 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.

4.      On the said application under Article 32, while issuing a  notice to the Union of India, this Court on 22ndJanuary 2007 made  the following order: "Issue notice to the respondent No 11- Union of  India returnable in two weeks.

Ms. Sushma Suri, learned counsel appearing  for the Union of India accepts notice. We request Mr.  Gopal Subramanium, learned Addl. Saolicitor  General, who is present in this Court, to take  instructions in the matter, in the meantime."

5.      Subsequently, by another order dated 19thMarch 2007, this  Court issued a notice to the State of Gujarat which was made

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returnable on     23rd March 2007. It is evident from the said order  that the State of Gujarat was asked to produce the relevant records  on 23rd March 2007. The Court passed the following order when the  matter came up before it on 23rdMarch 2007.

"Learned senior counsel for the respondent  State submits that as regards some of the police  officers who were involved in the alleged acts, some of  the details have been collected by the State and after  the full details are available further action will be  taken in the matter. Learned counsel also submits that  the State will be writing to the Government of Madhya  Pradesh for giving protection to the petitioners herein,  who are residing at Village Jharnia Sheikh, Dist  Ujjain, M.P. Three weeks time is granted to the State  to file a report in a sealed cover.

The report submitted by the learned Additional  Solicitor General of India in the sealed cover may be  taken on record."

6.      In the meantime, the report submitted by the Additional  Solicitor General for India was perused and placed on record. The  matter came up again on 20th 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 of India, a copy of which was ordered to be supplied to the  learned counsel for the State of Gujarat and other parties.

7.      However, Mr. K.T.S. Tulsi submitted an interim report from  the side of the State of Gujarat on 27th April 2007 in which the State  made an interim report on the investigation conducted by them in  pursuance of the orders of this Court dated 22nd January, 2007, 19th  March 2007, 20th March, 2007 and 23rd April 2007.

8.      Mr. Tulsi has submitted that the State of Gujarat would not  spare any person who is connected with the incident and needs some  more time to investigate the disappearance of Kausarbi. It has been  further submitted by Mr. Tulsi that if some more time is granted, a  comprehensive status report or Action Taken Report could be  submitted before this Court. This was seriously objected to by the  learned Attorney General for India and the learned counsel Mr.  Huzefa Ahmadi.

9.      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 are alleged to have been  involved, orders may be immediately passed directing the CBI to  take charge of the investigation and report to this Court.   

10.     Having heard the learned counsel for the parties and after  considering the fact that the investigation is now at the final stage,  we feel that some more time may be granted to the State of Gujarat  before any further action is taken in the matter. However, after going  through the Interim Report placed before us by the Additional  Solicitor General and also the Interim Status Report filed by  Mr.Tulsi on behalf of the State of Gujarat, we are of the view that a  prima facie case has been 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 asked for should not be granted and also as to  why a writ of Habeas Corpus should not be issued to produce  Kausarbi in Court. While this was being contemplated, it was,  however, submitted by Mr. Tulsi, senior counsel appearing on behalf  of the State of Gujarat that ’body of Kausarbi was disposed off by

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burning it in village Illol, Sabarkantha Disttrict’, which fact has been  brought on record in the Action Taken Report 3 submitted on     30th  April, 2007. Hence, we desist from issuing a formal writ. Report No.  3 may be kept on record. The State of Gujarat is directed to submit  the final status report within two weeks from this date.

11.     It appears from the records submitted before us that Ms.  Geetha Johri has already submitted interim reports. Now, an  allegation has been made that she has been taken off the  investigation for some reasons. The State of Gujarat is directed to  submit a report in this regard also.

12.     Let this matter be placed in the list for further orders on           15th of May, 2007.