REPORTABLE    

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 818 OF 2010       (Arising  out of Special Leave Petition(Crl.) No.7305/2009)  

 SHAMIMA  KAUSER …APPELLANT

VERSUS

 UNION OF INDIA & ORS. …RESPONDENTS

WITH

CRIMINAL APPEAL NO_819_OF 2010 (Arising out of Crl.M.P.No.19538/2009 in SLP(Crl.)No.3431/2010)

 M.R. GOPINATH PILLAI …APPELLANT

VERSUS

 STATE OF GUJARAT & ORS. …RESPONDENTS

JUDGMENT

B. SUDERSHAN REDDY, J.

Crl.M.P.No.19538/2009  for  permission  to  file  Special  

Leave Petition is allowed.

2. Leave granted in both the appeals.

3. These appeals are being disposed of by a common order  

since the same impugned order dated 09.09.2009 made in MCRLA No.  

10625/2009 in SCRLA No.822/2004 of the High Court of Gujarat is  

under challenge in both the appeals.  The High Court by the  

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impugned  order  granted  stay  of  the  report  submitted  by  the  

learned  Metropolitan  Magistrate  dated  07.09.2009  in  Crime  

No.8/2004  registered  with  DCB  Police  Station,  Ahmedabad.  The  

impugned  order  is  challenged  by  the  appellants  on  various  

grounds.  In  order  to  consider  the  same  it  may  be  just  and  

necessary to notice few relevant facts:

4. The  appellant  in  Criminal  Appeal  @  

S.L.P.(Crl.)No.7305/2009  is  the  mother  of  the  deceased  Israt  

Jehan who is alleged to have been killed by the Gujarat Police in  

an alleged encounter dated 15.06.2004.  The appellant in Criminal  

Appeal   @   Crl.  M.  P.  No.  19538/2009  is  the  father  of  the  

deceased Javed Gulam Mohammed Sheikh @ Pranesh Kumar Pillai who  

is also alleged to have been killed by the Gujarat Police in a  

fake encounter.  The appellants have been moving from pillar to  

post seeking justice and a proper inquiry into the matter.  They  

have been consistently asserting before all the authorities that  

their children were the victims of a fake encounter staged in the  

year 2004 by the officers of the Gujarat Police.  The appellant  

Shamima Kauser filed a Writ Petition under Article 226 of the  

Constitution  of  India,  being  Special  Criminal  Application  

No.822/2004,  before  the  High  Court  of  Ahmedabad,  seeking  an  

investigation into the death of her daughter, by the Central  

Bureau of Investigation, for the reason that she firmly believed  

that  her  daughter  had  been  wrongfully  done  to  death  by  the  

Gujarat Police in a fake encounter.  The appellant in the other  

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appeal  filed  Writ  Petition  in  this  court  seeking  appropriate  

directions  to  order  investigation  by  the  Central  Bureau  of  

Investigation  into  the  “fake  encounter  killing”  of  his  son  

Javed Gulam Mohammed Sheikh @ Pranesh Kumar Pillai.  The said  

Writ Petition was disposed of by this court granting liberty to  

the petitioner to approach the High Court of Gujarat seeking  

appropriate remedy since a Writ Petition arising out of a similar  

incident was already pending before the High Court.

5. On 07.08.2009 a leaned Single Judge of the High Court  

passed an order adjourning the Special Criminal Application No.  

822/2004 filed by Shamima Kauser  to explore the possibility of  

handing over  the investigation to higher officer/s from the  

cadre of Additional Director General of Police.  The material  

portion of the order reads as under:

“With a view to explore the possibility of handing over  the  investigation  to  higher  officer/s.  i.e.  officer/s  above  the  tank  of  Deputy  Commissioner  of  Police,  more  particularly, from the cadre of Additional D.G., matter is  adjourned to 12.08.2009. To be taken up at 1630 hours.”

6. On  13.08.2009,  the  learned  Single  Judge  having  

considered the list of police officers produced by the State of  

Gujarat  passed  a  detailed  order  constituting  a  Team  of  

Investigation  “for  the  purpose  of  carrying  out  the  

investigation.”    A  team  of  three  senior  most  officers  was  

constituted  for  the  aforesaid  purpose.   The  High  Court  also  

granted permission to Shamima Kauser to make suggestions to the  

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Investigating Team with regard to areas of investigation and to  

inspect the record qua the FSL report and the ballistic report.  

The  High  Court  further  directed  the  Investigating  Team  to  

consider  all  the  aspects  from  every  angle  relevant  for  the  

purpose  of  finding  out  whether  the  incident  was  a  genuine  

encounter or a fake one.  The report was directed to be placed  

before the court on the next date of hearing.  The appellant  

promptly submitted an application before the Investigating Team  

for inspection of documents and a further application suggesting  

some areas of investigation.

7. On  07.09.2009,  the  Metropolitan  Magistrate,  Court  

No.1, Ahmedabad, having made an inquiry  under Section 176 of  

the  Criminal  Procedure  Code  pursuant  to  the  orders  dated  

12.08.2009  of  the  Chief  Metropolitan  Magistrate  submitted  an  

Inquiry  Report  in  respect  of  death  of  (1)  Israt  Jehan,  (2)  

Jishan Johar, (3)Amjad Ali Akbar Ali Rana@ Salim @ Raj Kumar  

and (4) Javed Ghulam Sheikh.  The learned Magistrate having made  

a detailed analysis of the material available on record found  

that they were killed by “the ------ police officers and police  

personnel  with  their  service  revolver  and  unlicenced  and  

illegally held AK-56 rifle and with other weapons fired bullets  

on  body  of  deceased  and  thereby  murdered  ----  in  a  systemic  

manner, cold-bloodedly, mercilessly and cruelly.”

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8. On 09.09.2009, the State of Gujarat and as well as two  

police officers whose names were mentioned in the report filed  

Miscellaneous  Applications   in   Special  Criminal  Application  

No.822/2004  with  a  prayer  to  set  aside  the  report  dated  

07.09.2009  of  the  learned  Magistrate  whereunder  the  alleged  

encounters  were  found  to  be  fake.   The  matter  was  orally  

mentioned for listing and they were taken up on the same day at  

about 4.30 p.m. by the learned Single Judge and disposed of by  

the  impugned  order.   However,  the  Criminal  Miscellaneous  

Applications  filed  by  the  individual  police  officers  were  

withdrawn  and  only  Miscellaneous  Criminal  Application  No.  

10625/2009 filed by the State of Gujarat was heard and disposed  

of.

9. The learned counsel for the appellant – Ms. Kaimini  

Jaiswal,  and  Mr.   Huzefa  Ahmadi  appearing  on  behalf  of  the  

appellant in the other appeal expressed their serious objection  

to the manner in which the learned Single Judge took up the  

application filed by the State of Gujarat and granted stay of  

the report with a further direction to the Registrar General to  

make a detailed inquiry  into the matter which led to holding a  

parallel  inquiry  and  filing  of  the  report  by  the  learned  

Magistrate.   The  learned  Judge  was  of  the  opinion  that  the  

inquiry made by the learned Magistrate was beyond “the provision  

of law.”  It was strenuously contended the very Miscellaneous  

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Application filed by the State of Gujarat in the Writ Petition  

filed by one of the appellants herein was not maintainable.

10. Notwithstanding  various  observations  made  by  the  

Learned Single Judge in the impugned order the fact remains the  

order passed by the learned Single Jude is ad-interim in its  

nature  granting  stay  of  the  operation  of  the  report  as  at  

present.  The learned Single Judge not yet  finally disposed of  

the  Criminal  Miscellaneous  Application  filed  by  the  State  of  

Gujarat.  The effect of the order passed by the learned Single  

Judge is that the operation of the report is kept in abeyance  

and therefore no further action based on the  said report could  

be initiated in whatsoever  manner.  In such view of the matter  

we are not inclined to interfere with such ad-interim order in  

exercise  of  our  jurisdiction  under  Article  136  of  the  

Constitution of  India.   Interest of justice would be met if  

the main Writ Petition itself is heard and disposed of alongwith  

the  Criminal  Miscellaneous  Application  filed  by  the  State  of  

Gujarat.   In  the  meanwhile,  the  Investigating  Team  already  

constituted by the High Court shall not deal with the report of  

the learned Magistrate in any manner whatsoever.  However, the  

observations  made  in  the  impugned  order  with  regard  to  the  

report of the learned Magistrate are set aside which are totally  

unnecessary. The observations so made if allowed to remain may  

result in far reaching consequences.  We fail to appreciate as  

to why and what made the learned Judge to make such observations  

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even  while  the  very  application  filed  by  the  State  is  kept  

pending  for  its  adjudication.   The  directions  issued  to  the  

Registrar General to make a detailed inquiry into the matter  

which  led  to   holding   of  inquiry  by  the  Magistrate  under  

Section 176 of the Code of Criminal Procedure is also set aside.

11. We must express our reservations the manner in which  

the proceedings went on before the High Court resulting in the  

impugned order.  In the circumstances we consider it appropriate  

to request the learned Chief Justice of the High Court to place  

Special  Miscellaneous  Application  No.822/2004  along  with  

Criminal  Miscellaneous  Applications  including  Criminal  

Miscellaneous   Application No. 10625/2009 filed by the State of  

Gujarat  for  their  disposal  in  accordance  with  law  as  

expeditiously  as  possible  preferably  within  six  months  from  

today.  It is needless to observe that the observations made in  

the impugned order shall have no bearing whatsoever upon the  

merits  of  the  case.    The  Division  Bench  is  required  to  

adjudicate the Special Criminal Application on its own merits  

uninfluenced by the previous order passed by the learned Single  

Judge in the matter.  It is also needless to observe that the  

Division Bench shall consider the very maintainability of the  

Criminal  Miscellaneous  Application  filed  by  the  State  of  

Gujarat.

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12. Impleadment  Application  in   Criminal  Appeal  @  

S.L.P.(Crl.)No.7305/2009 : In view of the final orders passed in  

the Criminal Appeals no further order is required to be passed  

in this application.  The application shall accordingly stand  

dismissed with liberty granted to the applicant to avail such  

remedies as may be available in law.

13. The appeals are accordingly disposed of.

................................J. [B.SUDERSHAN REDDY]

................................J.      [SURINDER SINGH NIJJAR]

New Delhi, April 19, 2010

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