Gujarat HC judgment 1/12/2011 on SIT Report

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Gujarat HC judgment 1/12/2011 on SIT Report Powered By Docstoc
					               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              CRIMINAL MISC.APPLICATION No. 15981 of 2010
                                   In
               CRIMINAL MISC.APPLICATION No. 9832 of 2010
                                   In
             SPECIAL CRIMINAL APPLICATION No. 1850 of 2009

=========================================================
             SIT - THRO' KARNAL SINGH - IPS - Applicant(s)
                                  Versus
      SAMIMA KAUSAR WD/O MOHMMED SHAMIM RAZA & 4 - Respondent(s)
=========================================================
Appearance :
MR YOGESH S LAKHANI for Applicant(s) : 1,
MR IH SAYED FOR petitioner
MR MUKUL SINHA FOR ORI. petitioner OF SP. CRI. APPLN. NO.1850/2009

MR KAMAL TRIVEDI, LD. ADVOCATE GENERAL AND MR. PK JANI, LD. PUBLIC
PROSECUTOR ASSISTED BY MS. SANGEETA VISHEN, APP for STATE Respondent(s) :
3,
MR PS CHAMPANERI for Respondent(s) : 4,

                              Date : 01/12/2011



  1.In    order    to   see     that    the   points,   which     arise    for

     consideration can finally be put to an end in view of

     development        of    the      investigation     and      change   in

     circumstances, it would be relevant to refer to some

     important factual aspects arising by the judgement of

     this    Court      dated       12.8.2010      in   Special      Criminal

     Application No.822 of 2004 and allied matters and the

     subsequent development in the matter.


  2.This     Court,     in    its      judgement    dated   12.8.2010      at
paragraphs     2   to    4,    had    narrated        the   incident,        as

under:-

    “2.   On 15.6.2004, vide C.R. No.8/2004 of Crime Branch Police Station,
    a complaint was filed by Shri J.G. Parmar, P.I. (Crime Branch),
    Ahmedabad informing that on 14.6.2004 at about 23.00 hrs., an
    information was received by Joint Commissioner of Police Shri P. P.
    Pandey through his personal sources that in Blue Colour Indica Car
    bearing   Registration    No.MH-02-JA-4786,       one   Javed    and    two
    Pakistani Fidayeens, with arms and ammunition, have left Mumbai for
    reaching Ahmedabad and they were to enter Ahmedabad early morning
    at any time. As the said information was supported by Intelligence
    S ources, Additional Commissioner of Police (Crime Branch), Mr.D.G.
    Vanzara called AC P and PI and under his direct guidance, strong
    checking was ordered and it was planned to catch hold of the car and
    necessary teams were constituted; one team at Narol Chokdi Four-
    Roads, one team at CTM Four-Roads, one team at Naroda S.T.
    Workshop Three-Roads; one team at Naroda-Himatnagar Railway
    Crossing; one team at Indira Bridge Circle; and one team at Vishala
    Circle were deployed and they were comprising of Shri Amin - AC P, P SI
    Shri P.G. Waghela, P SI Shri C.J.Goswami, PI Shri B.D. Vanar, AC P Shri
    Singal and PI Shri Agrawat. The teams had started watch since 1.30 am
    in the morning and when there was watch of the team of Shri Amin - AC P,
    at about 4 am in the morning, at Narol, the above Indica Car with
    Registration No.MH-02-JA-4786 came from Mumbai and took a right
    turn towards   Naroda, therefore, they      had    followed   the car. The
    informations were supplied to other teams on phone and it was informed
    on mobile to Shri Singal that the car had taken turn from Naroda-
    Himatnagar Railway Crossing to Airport Road and it might run away,
    therefore, the car is required to be intercepted. Hence, over Indira Bridge,
the members of the team comprising of AC P Shri Singal, PI Shri Tarun
Barot, PI Shri RI Patel, PI Shri K.M. Waghela, PI Shri D.H. Goswami, P SI
Shri I.K. Chauhan and other staff in their vehicle proceeded towards
Airport Road and near Kotarpur Workshop took a sharp turn and their
vehicles were kept close to the divider and other members of the team
had taken different position. At that time, when the Indica Car reduced its
speed because of the turning at Kotarpur Water Works, Commando
Mr.Mohan Nanjibhai (Buckle No.1898), who was sitting in the Police
Vehicle, under the direction of Shri Amin, fired at the rear tyre of Indica
Car and as a result thereof, the car had come to a halt, close to the
divider. At that time, from the left side, one terrorist came out with AK 56,
got down and took his position behind the divider and started firing to the
Police Vehicle. The other terrorists, who were sitting in the car had also
started firing, but Shri Amin, the informant/complainant himself and
Commando Mr.P.C. Mohanbhai and driver of the car Mr.Bhalabhai and
P SI Mr.K.M. Desai got down from the vehicle and took their position on
the back side of the vehicle, therefore, they saved themselves and the
Commando, under the orders of Shri Amin, started firing in his self-
defence with Government weapon AK 47 Rifle. About 10 rounds were
fired and during the same, it was learnt that, as per the information, they
were dangerous terrorists, therefore, AC P Shri Singal had ordered for
firing. The member of his team, Commando Mr.P.C. Mohanbhai (Buckle
No.2211) and Commando Mr.A. Chaudhari (Buckle No.842) started firing
towards the persons sitting in the Indica Car. Therefore, both the
Commandos, by taking their position with their weapons of AK47 fired 32
rounds and 10 rounds with the Sten-gun in response to the firing of the
terrorists. Simultaneously, the informant/complainant with his service
revolver fired four rounds, Shri Amin fired five rounds, Shri Barot fired six
rounds and Shri I.K. Chauhan fired three rounds towards terrorists. The
cross firing continued for some time and thereafter when the firing was
stopped, they went near to Indica Car and it was found that on the rear-
seat one terrorist, one terrorist on the driving seat, one female terrorist
sitting next to driver and one terrorist near the divider, total four terrorists
died on the spot.
3.     It was stated in the complaint that all the deceased were terrorist
- Fidayeens of prohibited Lashkar-e-Taiba had the conspiracy to kill the
Chief Minister of Gujarat, Shri Narendra Modi with suicidal attempt,
therefore, they had procured arms and ammunition and wanted to create
terrorist activities in India. The other aspects were also referred in the
complaints of having possession of arms and ammunition of foreign
automatic weapons without licence, without passports, etc., and also
for entering India from Pakistan without there being proper visa. The
alleged offences in the complaint were under S ection 3(2)(a) & (c), 13, 14
of the Foreigners' Act, S ection 120B, 121, 121A, 122, 123, 307, 553, 186
of IPC, S ection 27, 29 of the Arms Act and S ection 3(1)(a)(b) and 3(2),
3(3), 20 and 21 of the Prevention of Terrorism
Act and S ection 135(1) of the Bombay Police Act. The accused shown in
the complaint were (1) Jishan Johar @ Jaanbaaz @ Abhas Abdul Gani,
resident of Pakistan and the addressed shown was Nar Nanak Kalerbadi,
District Gujranwala, Punjab, Pakistan, (2) Amjad Ali @ S alim @ Chandu
@ Raj Kumar; (3) Javed resident of Poona and (4) a lady terrorist, whose
name and address was not known. It may be recorded that thereafter, it
has come out that accused No.3 was Javed @ Praneshkumar Pillai and
the lady was Ishrat Jahan Raza.
     4. The investigation of the said complaint was assigned to Ms.Parixita
        Gurjar, A.C.P. Mahila, Crime Branch, Ahmedabad City. Further, on
        14.7.2004, an application was made to the designated Judge, Pota
        Court by the said investigating officer for addition of the
        chargeunder S ections 4 and 5 of Explosive Substances Act and for
        the offence under S ection 4 and 53 of the Prevention of Terrorism
           Act (hereinafter referred to as 'POTA”). It appears that when the
           substantial investigation was completed and investigation in part
           was yet to be completed, at that stage, the mother of deceased
           Ishrat Jahan named Mrs.Shamima Kausar Mohammed preferred
           Special Criminal Application No.822 of 2004, challenging the action
           by the police contending that her daughter has been killed in the
           fake encounter, therefore, prayed to direct Central Bureau of
           Investigation (hereinafter referred to 'CBI' for the sake of
           convenience) to carry out the investigation of the complaint
           registered with D C P, Ahmedabad City by registering the case with
           them. The prayer is also made in the said petition to direct the
           State to provide adequate compensation to the petitioner but, of
           course, no arguments whatsoever were made by the learned
           Counsel appearing for the petitioner on the said aspect at all at the
           time of final hearing of the matter. Therefore, it can be said that
           the petitioner restricted the case to direct the investigation by C BI
           as per above referred prayer only.”


3.Thereafter, there was magisterial inquiry under Section

  176 of Cr. P.C., by Mr. Tamang, the then Metropolitan

  Magistrate   and     the    learned       Magistrate       recorded       the

  findings, which were taken note of by this Court in the

  above referred judgement at paragraph 41, the relevant

  of which reads as under:-



      “41 …    But the matter does not end there on the aspects of

      other findings recorded by the learned Magistrate based on; (1)
      the presence of well developed rigor mortis on the body of the

      deceased at the time of postmortem; (2) the ballistic report for

      the use of the bullet; (3) non-availability of the signs of gun-

      powder in the hand-wash report; (4) the entry and exit wounds of

      the bullet marks on the body of the person concerned; (5) the

      bullet marks on the vehicles, …”



4.    The learned Magistrate thereafter had opined that

the    encounter         was    not    genuine     and      there    was   a

conspiracy by the police officers concerned to earn

benefits      in       service.       The    report   of     the    learned

Magistrate also came to be considered in the aforesaid

judgement with the challenge made to it and this Court

at paragraph 78 deduced the conclusion, the                         relevant

of    which      for     the   purpose      of   deciding    the    present

controversy is at paragraphs 78(5) to 78(11), which

reads as under:-

           “78. In view of the aforesaid observations and discussions,

           the following conclusion can be deduced :-

           (1)     xxx

           (2)     xxx
(3)   xxx

(4)   xxx

(5) There is no material on record before us of malice or

malafide on the part of the State police officials, which may

lead us to transfer the investigation to CBI only.

(6) The investigation so far cannot be said as fully

satisfactory by the I.O., and/or Additional DGP as observed

in the judgement.

(7) There is a report of the Metropolitan Magistrate under

Section 176 of Cr. P.C., which expresses the view/finding, if

considered would make the encounter non-genuine or fake

one. The views of the learned Magistrate on the other

aspects are without material on record as observed in the

judgement.

(8) In view of two contradictory findings of I.O., and

Additional DGP vis-a-vis the findings of the Metropolitan

Magistrate in the report under Section 176 of Cr.P.C., on the

aspects of genuineness of the encounter, the incident

deserves further investigation.

(9) In order to instill confidence and to provide credibility to

the   investigation   and   to    do   complete   justice,   the
            investigation deserves to be made by Special Investigation

            Team, as constituted by this Court, as observed in the

            judgement        herein     above   under       Article   226    of   the

            Constitution of India. The              concerned     Government       or

            the establishment is bound to comply with the directions of

            this Court and to provide all necessary infrastructure.

            (10) The members of SIT or SIT work under the orders of

            this    Court.    Hence,     alteration    in   the   composition      or

            constitution of new SIT, if this Court finds it proper, cannot

            have demoralizing effect, but can be termed as a transfer

            of work/assignment simplicitor.

            (11) As one SIT is already functioning for sensitive riot cases

            as per the orders passed by the Apex Court, same SIT,

            subject to the change, if any, made by the Apex Court,

            deserves to be entrusted the work of investigation in

            order     to     instill   confidence     and     credibility   to    the

            investigation.”

5.   This     Court        further       passed       the    order          issuing

directions, the relevant of which is at paragraph 79(b)

as under :-
     “79. In the result, the following orders :-

     (a)   xxx

     (b) Special Criminal Application No.822 of 2004 and Special

     Criminal Application No.1850 of 2009 shall stand allowed to the

     extent of constitution and assignment and transfer of the

     investigation to the SIT as observed herein above in the present

     judgement for investigation in connection with C.R. No.8 of 2004

     dated 15.6.2009 registered with DCB Police Station, Ahmedabad

     City. It is further observed that SIT shall be at liberty to take all

     the steps in accordance with law for investigation transferred to

     it and it shall also have the power to take action in furtherance

     thereto in accordance with law.

     The State Government is directed to issue necessary orders in

     this regard within two weeks from the date of receipt of the order

     and the said SIT shall submit the report within three months

     thereafter to this Court. The other prayers made by the

     petitioner, including to transfer the investigation to CBI are

     not granted.”

6.   It    appears    that,     thereafter         in   Criminal   Misc.

Application No.9832 of 2010 preferred by one of the

original petitioners, Gopinath Pillai, Father of the
deceased       Praneshkumar      Pillai     @   Javed    Gulammohammad

Shaikh of Special Criminal Application No.1850 of 2009,

this     Court    observed     vide    order    dated    24.9.2010      at

paragraph 8 to 14 as under:-



       “8.   However, the second ground for review and recalling of the

       order for constitution of SIT and to assign the investigation to the

       SIT for Riot cases, may call for consideration. The said ground

       would get strengthened by the inability expressed by the SIT for

       Riot cases itself, as reflected from its letter dated 30.08.2010, on

       the basis of which the proceedings of Criminal Misc. Application

       No.10621 of 2010 have been initiated.


       9.The situation, as it emerges from the record, is that on the

       date when this Court passed the judgment and the order on

       12.08.2010, this Court had assigned the work for investigation of

       the present case to the members of the SIT constituted by the

       Apex Court because they were already functioning in the State

       with all infrastructure available with them, for investigation of

       crimes, may be of specified cases marked to that SIT by the

       Apex Court. But, it appears that if the very SIT for Riot cases is

       unable to take up the investigation, the consequences may arise

       that either no result may come out for which the directions have
been issued by this Court or in the alternative, it would not serve

any purpose whatsoever. In normal circumstances, when this

Court has exercised power under Article 226 of the Constitution,

the provisions of CPC for review of an order would not

automatically    apply   but    the   principles   analogous    to   the

provisions of CPC can be made applicable to the proceedings of

this Court under Article 226 of the Constitution. Further, if any

situation has emerged on account of any unwillingness shown by

the SIT for Riot cases to take up the investigation as ordered by

this Court, the same can be considered as a valid ground for

review and/or recalling the order to the extent of constitution of

the said SIT. It appears to us that considering the facts and

circumstances, and more particularly, in view of the contents of

the letter dated 30.08.2010 addressed by SIT for Riot cases,

coupled with the observations made by the Apex Court in the

proceedings of Special Leave to Appeal (Crl.) No.7132 of 2010

vide order dated 06.09.2010, there would be valid ground for

review and recalling of the order to the extent of constitution of a

new SIT. At this stage, we may refer to the observations made by

the Apex Court in the above referred order, the relevant extract

of which reads as under:


“....In the meanwhile, the High Court shall be at liberty to consider the
application stated to have been filed on behalf of SIT expressing its

inability to undertake the investigation in terms of the directions issued by

the High Court. The High Court shall also be at liberty to pass an

appropriate order constituting a proper agency for investigation of the

crime in question.”


10.   Under these circumstances, we find that inability expressed

by the SIT constituted by the Apex Court to undertake the

investigation in the present case could be termed as a valid

ground for review and to recall the order for assigning the

investigation of the present case to that SIT for Riot cases.


11.   The aforesaid would lead us to consider the question for

constituting another SIT. In order to consider the aforesaid

aspects, we may refer to the relevant observations of this Court

made in Paragraph-74 of the above referred judgment about the

SIT which deserves to be constituted, the relevant portion of

which reads as under:


“Therefore, we find that if a broad based SIT is constituted, which would

be in a position to investigate into the incident by collecting data from

various States, which are concerned and through the Police of various

States, it would be not only more convenient, but would be more

practicable and would help to trace the truth for the alleged incident.”
... ... ...

“Under these circumstances, we find that it would be just and proper to

include the officers from outside the State as well as one, who was or is

holding very high position in the Central Bureau of Investigation.”

12.      It may also be observed that at Paragraph-75, it was

interalia observed as under:


“....We may observe that when the Apex Court in such highly sensitive

matters in the riot cases in the State of Gujarat, which include the Police

Officers of the State, has found it proper to assign the work of

investigation to the aforesaid SIT, the same team can be entrusted the

work of the investigation of the present case and such would instill

confidence and credibility to the investigation to do complete justice to the

parties and thereby protecting the fundamental rights of the citizens.”

13.      Keeping the aforesaid observations in mind, if a broad-

based SIT is constituted, it would serve the purpose and would

be in furtherance of the cause for which the investigation is so

ordered by this Court.


14.      In order to consider the officers who can be included in SIT,

we had called for the names from the applicant Mr.Pillai, State of

Gujarat, as well as the Union of India, through their respective

counsel and we had also given opportunity to Ms.Shamima
     Kauser, petitioner of Special Criminal Application No.1850 of

     2009.”


7.   Thereafter,      this     Court    further     considered      the

matter to deal with the arguments and the contentions

raised by the State, including that of assigning the

work to the Special Task Force and induction of any

officer other than that of State Cadre in the Special

Investigation      Team      (‘SIT’    for   short)     and      further

proceeded to constitute a new SIT. The relevant aspects

of   the   said    order     (dated    24.9.2010      in   Cr.    Misc.

Application No.9832/2010) reads from paragraph 20 to 25

as under:-



     “20. It is hardly required to be stated that a judgment or order of

     the High Court in exercise of the power under Article 226 of the

     Constitution cannot be nullified by any executive action of the

     Government, be it a policy matter or constitution of a Special

     Task Force or the constitution of the Monitoring Authority, or

     otherwise. Therefore, once this Court having recorded the

     findings for constitution of a SIT having a particular character

     and composition, such decision on the part of the State can
hardly be considered as a valid ground to recall the observations

made for constitution of SIT, thereby instilling confidence and

credibility to the investigation. Under these circumstances,

based on the Notification, such suggestion cannot be accepted.

Further, when this Court has already ruled for inclusion of certain

officers in the SIT, unwillingness on the part of the State for

induction of any officer of IPS cadre from outside the State can

neither be countenanced nor endorsed. We may record that the

Constitution provides the competence of any State or the Union

or any constitutional authority, including the judiciary, for

protection of the rights of citizens and controls the exercise of

power by any executive. In a Federal structure which prevails in

our nation, once this Court has exercised the power under Article

226 of the Constitution, and has ruled for assigning the

investigation to a broad-based SIT, such reservations expressed

on behalf of the State cannot be countenanced by this Court.

The aforesaid is coupled with the circumstance that State has

not filed any review application for recalling of the order. Further,

even if the State, for the reasons best known to it, is desirous of

constituting the Special Task Force or a Monitoring Authority, it

may be made applicable to other cases, namely, encounter

cases other than the one considered and examined by this Court
in exercise of the power under Article 226 of the Constitution.

Further, if such aspect is considered, it may also indirectly dilute

the observations made by this Court in the judgment and also by

the Apex Court, permitting the High Court to constitute a new

SIT. Hence, we find that such ground should not operate as a bar

or by way of a second thought for non-constitution of the SIT and

the assignment of investigation to it. (Emphasis supplied)


21.   Having considered the above, and after taking into

consideration the names of the officers given by different

parties, we find that the new SIT for the present case shall

comprise of the following officers:


      1. Shri Karnail Singh – IPS 1984 Batch – One of the officers

           nominated by the Union of India out of the list of 5

           officers.


      2. Shri Mohan Jha – IPS 1985 Batch – at present posted in

           Gujarat State – Nominated as one of the officers by

           the Gujarat State out of list of 11 officers.


      3. Shri Satish Varma – IPS 1986 Batch – posted in Gujarat

           State – one of the officers nominated from the list of 4

           officers given on behalf of the applicant - Shri

           Gopinath Pillai.
22.   The State Government is directed to issue necessary

orders, including Notification, in this regard, within a period of

two weeks from the date of receipt of the order.


23.   The investigation of I-C.R.No.8/2004 dated 15.06.2004

registered with DCB Police Station, Ahmedabad City, shall be

transferred to the SIT constituted by this order. It is further

observed that the said SIT shall be at liberty to take all steps in

accordance with law for investigation transferred to it and it shall

also have power to take action in furtherance thereof, in

accordance    with    law.    The   State   shall   provide   necessary

infrastructure to the said SIT.


24.   It is further observed and clarified that the SIT so

constituted   by     the     present   order   shall   not    take   any

assistance, directly or indirectly, of the officers of any rank of the

State Police, if they are involved directly or indirectly in

connection with the present incident of encounter, which is to be

investigated by them.


25.   The other directions for investigation and submission of the

report issued vide judgment and order dated 12.08.2010 shall

remain the same.” (Emphasis supplied)
8.     It is only after the constitution of the aforesaid

SIT (hereinafter referred to as the ‘First SIT’ for the

sake        of      convenience),       the    implementation       of    the

directions, issued vide judgement dated 12.8.2010, for

transferring            and    assigning       of   the    investigation,

actually started.


9.In the present application on 28.1.2011, this Court

found that there were differences of opinion amongst

the Members of the SIT; mainly Mr.Satish Verma and,

therefore, this Court passed the further order, the

relevant          of   which    reads   from    paragraphs     3   to    5 as

under:-

       “3.       It prima facie appears that because of certain difference of

       opinion amongst the members of SIT, the prayer is made to

       appoint any lawyer as amicus curiae for giving opinion on the

       legal issues involved in it while in the course of investigation or

       may be thereafter.

       4.        It also appears from the counter affidavit filed by Mr.Satish

       Verma, one of the member of SIT that there are differences of

       opinion amongst the members of SIT, may be on account of no

       hierarchy formed in the order passed by this Court or mode
expressly not provided for resolving the difference of opinion. It

also appears that as per one of the member of SIT, Mr. Satish

Verma, when he wanted to investigate certain aspects, the view

was expressed by the other members that unless the issue is

discussed and unanimously resolved, the investigation may not

be made in this regard. Such has resulted into the present

matter.

5.    In order to see that the spirit of the order passed by us for

unearthing the truth on the aspects as to whether it is a genuine

encounter or a fake encounter and in order to see that the SIT so

constituted can work with discipline and may be in a position to

resolve the issues, may be on the aspects of investigation or on

legal issues, we find that the following directions deserves to be

issued -

(1)   Mr.Yogesh S.Lakhani, Senior Advocate, is appointed as

amicus curiae for rendering all legal assistance to the SIT. Office

shall communicate the present order to Mr.Lakhani. As regards

the professional fees of Mr.Lakhani for the service which may be

rendered, the State Government will have to bear the fees and

the expenses but the quantification shall be made as and when

the bills are received or the report is so submitted. Provisionally,

the State shall deposit the amount of Rs.20,000/- with the SIT
towards legal expenses and in turn, the said amount as and

when required or so instructed by the amicus curiae, shall be

disbursed by SIT to Mr.Lakhani, subject to further orders which

may be passed by this Court for quantification of expenses upon

the legal advice or legal proceedings etc., if any.

(2)    The SIT shall have the following discipline amongst it :



A)          Mr.Karnal Singh, IPS, shall be the Chairman of SIT - Mr.

Mohan Jha, IPS and Mr.Satish Verma, IPS shall be the members of

SIT.

B)     Generally, the decision shall be taken by SIT after

discussion with all the members and if there is unanimity, the

said decision shall be acted upon without any hesitation. If any

member of the SIT expresses a dissenting view, it would be open

to the SIT to proceed in accordance with the majority view. But at

the same time, the dissenting view shall be taken note of. The

aforesaid is with the express observation that in the mode and

manner of investigation, such would apply.

C)     So far as the field of investigation is concerned, SIT shall be

guided by the observations made in the judgment dated

12.08.2010. We may broadly state that SIT has to keep in mind

three aspects; one would be the FIR already registered, another
would be the area or the points over which the view has been

expressed by the learned Magistrate in the inquiry made under

section 176 of the Cr.P.C. and the third would be as to whether it

is a genuine or fake encounter. No compromise on any point on

the aforesaid three aspects shall be made while undertaking the

investigation by the SIT, be it a majority view or a minority view.

D)    In the field of investigation, SIT shall be at the liberty to

take decision. If any legal issue arises which the majority of the

members of SIT finds to be resolved, it would be open to the SIT

to seek legal assistance of the amicus curiae by way of opinion

or otherwise.

E)    We express the view that all members of the SIT shall work

with a team spirit in order to realise faith which has been

reposed by the Court for investigation and all sincere attempts

shall be made, of course within the bounds of law, to reach the

truth of the subject matter for which the investigation has been

so ordered. All clues directly or indirectly touching to the spirit of

the order shall be investigated so as to bring it to its logical end.

(3)   As we find that certain incidental matter may arise while

the SIT is investigating into the matter, it would be just and

proper to direct the SIT to submit the progress report every two

months.
    (4)   It will be open to the SIT to intimate the names of any

    officer or witnesses who are to be interrogated or who may be

    the witness in connection with the incident to post them at a

    place where they are not required to work under the higher

    officers who are also directly or indirectly involved in the incident

    and the State shall act accordingly upon intimation so received

    from SIT.

    (5)   S.O. to 08.04.2011 for reporting progress and further

    order.”

10. The pertinent aspect is that this Court observed that

certain   incidental     matters    might    arise    while     SIT   is

investigating into the matter and, therefore, this Court

found that it would be just and proper to direct the SIT to

submit a progress report every two months.


11. The matter further came to be considered on 8.4.2011

and having found that in spite of the requisition made by

SIT the concerned Police Officers were not transferred by

the State Government, this Court passed the further order

as under :-

    “1.   The report submitted by Mr.Mohan Jha, one of the Members

    of the SIT is considered. The pertinent aspect is that in spite of

    the earlier direction given by this Court in the order dated
28.1.2011 at paragraph 4 of the said order, requisition was made

by SIT for transfer of certain police officers and as per the said

report, Mr.P.P. Pandey, Mr.G.L. Singhal and Mr.Tarun Barot have

not been transferred so far.

2.   We may record as per the order dated 28.1.2011 at para 4,

it was ordered thus:-

“4.It also appears from the counter affidavit filed by Mr.Satish

Verma, one of the member of SIT that there are differences of

opinion amongst the members of SIT, may be on account of no

hierarchy formed in the order passed by this Court or mode

expressly not provided for resolving the difference of opinion. It

also appears that as per one of the member of SIT, Mr. Satish

Verma, when he wanted to investigate certain aspects, the view

was expressed by the other members that unless the issue is

discussed and unanimously resolved, the investigation may not

be made in this regard. Such has resulted into the present

matter. “

3.   Under these circumstances, the aforesaid officers as

requisitioned by SIT shall be posted at different places by way of

transfer so as to have the smooth functioning of SIT and the

aforesaid directions shall be complied with within one week.

4.   It further appears from the report that the investigation by
the SIT is not very satisfactory. The Chairman of SIT, Mr.Karnal

Singh appears to be available only on few days, may be on

account of his assignment at different places. Similarly for Mr.Jha

and Mr.Satish Verma, there is no separate reports prepared for

the action taken by each of them. If the progress is to be

considered in toto, we find that it is not up to the expectation of

the Court of the investigation well in time.

5.   Hence, with a view to ensure that the investigation is

geared up and properly channelized so as to unearth the truth at

the earliest, we direct that each Member of SIT shall submit

separate report about the contribution made by him in the

functioning of SIT. Such report shall be submitted in the sealed

cover. In addition to the above, as the present report is not found

to be satisfactory, a fresh report shall be submitted by

incorporating the gist of the investigation, if any, made,

including after referring to the statement of the key-witnesses on

the aspects about the genuineness of the encounter or

otherwise.

6.   It was reported that some complaints were filed against

one of the Members of the SIT, Mr.Satish Verma, who in

furtherance to the investigation, had seized certain records of

FSL and others. As such when the Members of the SIT are acting
under the directions of this Court any complaint against the

functioning of any Member in the course of such investigation is

required to be reported to this Court and no attempt should be

made    for   creating   any   hindrance   or   obstruction   in   the

investigation, may be by way of the decision of the majority of

the Members of SIT or even minority view through any single

Member of SIT.

7.    It is hardly required to be stated that the complaint being

C.R. No.8/2004 dated 15.6.2009 is already registered with DCB

Police Station, Ahmedabad City and, therefore, when the

Investigation is transferred to SIT, including the Members of SIT,

they would be for all purpose functioning in connection with the

said FIR for further investigation as per the provisions of Code of

Criminal Procedure read with the orders of this Court.

8.    Hence, no impediment or obstruction shall be created by

anyone in the investigation to be made by SIT or its Members,

may be minority view or majority view, if the attempt is to get all

clues investigated for reach the truth.

9.    All the aforesaid reports shall be submitted on or before

20.4.2011 at 2.30 p.m. S.O. to 21.4.2011 at 4 p.m.

10.   The aforesaid direction qua transfer of the officials shall be

communicated by the learned Advocate General.
    11.   Office to supply copy of the petition and the order as

    required by Mr.Lakhani, who has been appointed as Amicus

    Curiae.” (Emphasis supplied)

12. The pertinent aspect is that this Court found that

the investigation by SIT was not satisfactory and in

order to gear up the functioning of the SIT and to

channelize the functioning to unearth the truth at the

earliest, each member of the SIT was directed to submit

separate report about the contribution made by him in

the functioning of SIT and it was also observed that

attempt should be made not to create any hindrance or

obstruction in the investigation, might be by way of

decision by the Members of the SIT, or even made by any

single member of the SIT.           It was also observed that

all attempts should be made to get all clues including,

might be by minority or majority, so as to reach the

truth     and   the    direction      was     also   given      for

communication    of   the   order   for     transferring   of   the

State Police Officers through Advocate General.


13. The matter further came to be considered by this

Court on 21.4.2011 and it was found that Mr.Karnal
Singh, Chairman of SIT was posted at Mizoram and he had

shown      his   inability      to    continue    with     the   present

assignment.        Therefore, Mr.Karnal Singh was allowed to

be   relieved      as   Chairman      of   SIT,   but    since   it   was

noticed that there were differences of opinion in the

mode and manner of investigation, the duties amongst

the Members were demarcated.               Further, as the transfer

was not affected in spite of the requisition made by

the SIT, this Court also found that there was non-

compliance of the order passed by this Court by the

State      Government      and,      therefore,     called    upon    the

concerned        Officer   to     submit    reply    and     explanation

before concluding on the aspect whether action should

be initiated under the Contempt of Courts Act or not.

The matter was considered and the following order was

passed on 21.4.2011:-


     “1.    As per the order dated 08.04.2011 passed by this Court, all

     the reports have been submitted. We have gone through the

     reports and have considered the contents thereof. Since the

     investigation is at a crucial stage, we find that the contents of

     the reports are not required to be recorded since to do so would
prejudice the investigation.

2.   However, three pertinent aspects are required to be

recorded qua each member of SIT. One is that Mr. Karnail Singh,

Chairman of the SIT, who has been posted at Mizoram, has

shown his inability to continue with the present assignment. We

have gone through his report and we find that the difficulty being

faced by him appears to be genuine. Of course, he has also

stated other aspects in the report which, if required, shall be

considered at a later stage. Under these circumstances, we allow

Mr.Karnail Singh to be relieved as Chairman of SIT. Since we may

be required to induct another member as SIT who may be the

Chairman, or otherwise, as per his seniority in the IPS cadre, we

keep that aspect open. It is directed that the Union of India,

through    Mr.P.S.   Champaneri,   on   the   next   date,   shall

communicate names of other officers who may be spared for

inclusion in the present SIT.

3.   The second aspect is that on account of the non-

availability of the Chairman, SIT shall now comprise of two

members, namely, Mr.Mohan Jha and Mr. Satish Verma.

4.   We have seen the individual report of both the members

and we find that there are various differences of opinion in the

mode and manner of investigation. Further, we have seen from
the report that if there is no separate demarcation of duties, it

may hamper the smooth investigation. Therefore, we find it

proper to demarcate the duties of both the members of SIT.

However, it is clarified that the demarcation of duties by this

Court may not be taken to mean that there is a perception that

any officer is either working properly or not working properly.

However, demarcation of duties is essential with a view to

streamline the investigation without any impediment therein.

5.    We have heard both the members of the SIT. Considering

the facts and circumstances and having gone through the

reports submitted by the members of SIT including Chairman, Mr.

Karnail Singh, we find that the investigation through SIT shall be

looked after in the following manner:

(1)   Mr.Mohan Jha shall look after the administrative work being

member of SIT.

(2)   Mr.Satish Verma shall look after the actual and further

investigation of the case which is already stated vide order dated

08.04.2011 at paragraph no.7, i.e., pertaining to complaint being

C.R.No.8/04 dated 05.06.2004 registered with DCB Police Station,

Ahmedabad.

6.    Hence, SIT shall work accordingly.

7.    It was submitted by Mr.Lakhani, amicus curiae on behalf of
SIT that since no officer of the rank of SP/DIG level is available, it

would help the member of SIT to further investigate the matter if

such an officer is spared by the State Police Department. We

leave it to the discretion and decision of the member of SIT who

has been assigned with the work of investigation. If he finds it

proper, he may requisition the officer of his choice who is not

connected with the incident directly or indirectly. Upon the

requisition being made by him, the State Government shall spare

that officer for assisting the member of SIT for investigation.

8.   It has been further stated that the report of the Central

Forensic Laboratory as well as AIIMS may take some time,

approximately four weeks. An attempt shall be made by

requisitioning both the authorities to submit the reports earlier,

preferably within a period of two weeks, if possible. The order of

this Court shall be communicated to the Central Forensic

Laboratory as well as AIIMS.

9.   Another aspect which we need to record is that when we

passed the order dated 08.04.2011, it was already mentioned

that SIT had requisitioned transfer of certain officers including

Mr.P.P. Pandey, Mr.G.L. Singhal and Mr.Tarun Barot pursuant to

our order dated 28.01.2011. In spite of the requisition made by

SIT, the said officers were not transferred by the State
Government. There are certain materials which, prima facie,

suggest that this has affected the investigation. Not only that,

after the order dated 08.04.2011 was passed by this Court, the

State Government was required to take immediate action. In

spite of the same, the said officers have been transferred on

19.04.2011, just one day prior to the date on which the reports

were to be submitted. The pertinent aspect is that at para 3 of

the order dated 08.04.2011, it is clearly stated that the

directions were to be complied with within one week. However, it

prima facie appears that until the visit of the members of the

Central Forensic Laboratory and team of AIIMS, the transfer

orders were not passed. Prima facie, the said action on the part

of the State, in spite of the specific direction by this Court, can

be said to be in breach and non-compliance of the direction of

this Court. However, upon the inquiry further made by the Court,

it has been reported by the learned Advocate General that

Mr.Balwant Singh, Additional Chief Secretary, Home Department,

is the authority who had to comply with the direction. Hence,

before we prima facie conclude on the aspect as to whether it is

a case for initiation of action under the Contempt of Courts Act

for breach and non-compliance to the order of this Court, an

opportunity may be given to the said officer to submit his reply
and explanation, if any, and thereafter, appropriate action may

be initiated, if required. Hence, we direct Mr.Balwant Singh,

Additional Chief Secretary, Home Department to submit a reply

and explanation, if any, as to why proceedings under the

Contempt of Courts Act should not be initiated for committing

alleged breach and non-compliance of the directions issued by

this Court for transferring certain police officers as requisitioned

by SIT, pursuant to the order passed by this Court. Such

explanation shall be submitted on, or before, 11.05.2011.

10.    It has been submitted on behalf of the SIT that NIA has

been requested to supply certain details which, in spite of

reminders, have not been supplied to the SIT.

11.    Hence, we direct that NIA shall supply the requisite details

as desired by SIT within two weeks. Mr.Champaneri, learned

Assistant Solicitor General has agreed to communicate the order

to    the   NIA.   Mr.Champaneri   has   submitted   that   whatever

information is available will be supplied if there is no legal

impediment, and if there is any legal impediment, the same shall

be reported to this Court, on the next date.

12.    Mr.Saiyed appearing on behalf of Shamima Kausar wanted

to tender an affidavit claiming to contain certain factual

narrations of events that transpired at the office of SIT, when the
      complaint was tendered by Shamima Kausar.

      13.   We find that the said aspect need not be looked into at this

      stage. If she is so desirous, the same may be submitted to the

      SIT who shall look into the matter, in accordance with law.

      14.   S.O. to 12.05.2011 at 2.30 p.m. Mr.Champaneri shall submit

      the names of the suggested officers on that day.

      15.   Before parting with this order, we may observe that the

      work which has been undertaken by Mr.Karnail Singh as

      Chairman of SIT, as transpires from his individual report, is found

      to be satisfactory by us and we record a sense of appreciation.

      16.   The reports submitted by the members of SIT shall be kept

      in a sealed cover, in the safe custody of the Registrar General.”

      (Emphasis supplied)



14. It      appears    that      thereafter     on   12.5.2011,      the

matter once again came up for consideration and upon

the   name    suggested     by    the   Union   of   India    for    the

Chairman of SIT in place of Mr.Karnal Singh, this Court

reconstituted the SIT and passed the following order,

the relevant of which reads from paragraph 4 onwards:-

      “4.   Mr.Sinha has left the matter to the Court, whereas on

      behalf of the State of Gujarat, some reservation was shown for
officer at Sr. No.3, Shri Rajesh Ranjan. As the choice and options

are available, we find that we need not go into the aspects of

reservation expressed on behalf of the State. Dr. Satyapal Singh,

even amongst the officers nominated is the Senior Most Officer

and he is, in any case, senior to the remaining both the members

of SIT. Hence, we find that Dr. Satyapal Singh, IPS (MH:80) can be

nominated as the Chairman of SIT. Consequently, SIT now shall

comprising of the members as under:-

(a) Dr. Satyapal Singh, IPS (MH:80) shall be the Chairman of SIT

(b) Mr.Mohan Jha, IPS – Member of SIT

(c) Mr.Satish Verma, IPS – Member of SIT

5.   In   view   of   the   full-fledged   constitution   of   SIT,   the

functioning of SIT shall now be as per the order dated 28.1.2011,

vide paragraph 5 and the detailed direction given therein, save

and except that in place of Mr.Karnal Singh, IPS as the Chairman,

Dr. Satyapal Singh, IPS shall be the Chairman. Hence, ordered

accordingly. It is observed that in view of the aforesaid direction

now bifurcation of the work as specified vide order dated

21.4.2011 as per para 5 and 6 would no more survive. The State

shall issue necessary Notification for such purpose within one

week. SIT shall further investigate into the matter and submit
the report on or before 23.6.011 in a sealed cover. The report

shall be submitted to the Registrar (Judicial), High Court of

Gujarat.

6.   As per the above referred order dated 21.4.2011, it appears

that the affidavit has been filed by Mr.Balwant Singh, IAS,

Additional Chief Secretary, Home Department. We may observe

that the affidavit is not with the details about the role played at

every level by the concerned officer from the date on which the

requisition was received from SIT until the sanction for transfer

order was granted by the State Government. We may record that

unless and until date-wise details with the role played by the

officer concerned for pursuing the matter or not pursuing the

matter with the name of the officer concerned is given, it may be

difficult for the Court to hold the responsibility, if such question

arises in future under the Contempt of Courts Act. Further in

absence thereof it cannot be termed as sufficient explanation.

We would have directed the said Officer to file the affidavit,

however, on his behalf Mr.Trivedi, learned Advocate General has

stated that such affidavit shall be filed on or before 23.6.2011.

Hence, we direct that the said affidavit with the aforesaid shall

accordingly be filed before this Court on or before 23.6.2011.

7.   It was next contended by the learned Advocate General on
behalf of the State by tendering the affidavit of Shri Rahul Gupta,

IAS working as the Deputy Secretary, Home Department, stating

that the State has formed the monitoring authority to be looked

after for the functioning of the Special Task Force in all encounter

matters and it was submitted that as now SIT could not function

effectively, the investigation be handed over to Special Task

Force working under the monitoring authority by this Court for

the alleged incident of encounter in question.

8.   We are unable to appreciate such a stand on the part of the

State, more particularly when the said aspect was already

considered by us in the order dated 24.9.2010 in Criminal Misc.

Application No.9832 of 2010, which has been disposed of and

the SIT was constituted vide the said order. We may record that

similar arguments and contentions were raised when we

considered the aspects of reconstitution of SIT vide order dated

24.9.2010 in Criminal Misc. Application No.9832 of 2010. It was

observed by the Court at para 17 to 20, which reads as under:-

“17. After the aforesaid exercise was completed but before this

Court proceeded to pass the order for constitution of new SIT by

including the names of the officers which this Court may find

proper, the learned Advocate General pressed into service, the

affidavit dated 20th September, 2010, filed by Mr.Rahul Gupta,
Deputy Secretary of the Home Department, contending that the

State Government has issued a Notification dated 16.09.2010 for

constitution of Monitoring Authority and Special Task Force for

investigation of the police encounter deaths and it was also

submitted that the Chairman of the Monitoring Authority may be

a retired Honourable Judge of the Supreme Court of India or a

retired Honourable Judge of the High Court of Gujarat.


18. It may also be recorded that in Paragraph-8 of the affidavit, it

has been stated on behalf of the State Government as under:


“8. I respectfully say and submit that under the circumstances, while

respectfully reserving my liberty to press for the reliefs prayed for in the

Special Criminal Application filed by the State of Gujarat and reiterating

the prayer that in view of the changed circumstances, that is to say, SIT of

riot cases having expressed its inability, this Honourable Court may be

pleased to permit the Special Investigation Team, constituted by this

Honourable Court earlier, to complete the investigation under the

monitoring authority, as contemplated vide notification dated 16/9/2010 or

the investigation in question may be ordered to be completed by the

Special Task Force contemplated vide same notification dated 16/9/2010

under the monitoring of the said Monitoring Authority. In the respectful

submission of the State, the said course of action would not only instill

confidence and credibility in the investigation, but would result into a
complete justice to all the parties rather than constituting an agency

having officers of different police forces since such a course of action has

an inbuilt risk of inevitable confusion in the investigation for various

reasons.”

19. When the learned Advocate General Mr.Trivedi was called

upon to clarify the stand of the State Government on the aspects

of constitution of new SIT by this Court, it was declared by the

learned Advocate General that the attempt on the part of the

State   Government       is   by   way   of   a   suggestion     that   the

investigation may be assigned to the Special Task Force who is to

work under the Monitoring Authority instead of new SIT

comprising of the other officers who, in the submission of the

learned Advocate General, could be officers from outside Gujarat

State. It was submitted that there is no attempt on the part of

the State to nullify the effect of the judgment of this Court but

the Notification for constitution of Special Task Force may be

considered as one of the options available to the Court instead of

constituting a new SIT. He also submitted that prior to the

Notification dated 16th September, 2010, for constitution of

Special Task Force and Monitoring Authority, the Government has

already given the names of the officers reserving its rights and

contentions in the SLP pending before the Apex Court. Therefore,
it was submitted that the said aspects may be considered before

passing further order.


20. It is hardly required to be stated that a judgment or order of

the High Court in exercise of the power under Article 226 of the

Constitution cannot be nullified by any executive action of the

Government, be it a policy matter or constitution of a Special

Task Force or the constitution of the Monitoring Authority, or

otherwise. Therefore, once this Court having recorded the

findings for constitution of a SIT having a particular character

and composition, such decision on the part of the State can

hardly be considered as a valid ground to recall the observations

made for constitution of SIT, thereby instilling confidence and

credibility to the investigation. Under these circumstances,

based on the Notification, such suggestion cannot be accepted.

Further, when this Court has already ruled for inclusion of certain

officers in the SIT, unwillingness on the part of the State for

induction of any officer of IPS cadre from outside the State can

neither be countenanced nor endorsed. We may record that the

Constitution provides the competence of any State or the Union

or any constitutional authority, including the judiciary, for

protection of the rights of citizens and controls the exercise of

power by any executive. In a Federal structure which prevails in
our nation, once this Court has exercised the power under Article

226 of the Constitution, and has ruled for assigning the

investigation to a broad-based SIT, such reservations expressed

on behalf of the State cannot be countenanced by this Court.

The aforesaid is coupled with the circumstance that State has

not filed any review application for recalling of the order. Further,

even if the State, for the reasons best known to it, is desirous of

constituting the Special Task Force or a Monitoring Authority, it

may be made applicable to other cases, namely, encounter

cases other than the one considered and examined by this Court

in exercise of the power under Article 226 of the Constitution.

Further, if such aspect is considered, it may also indirectly dilute

the observations made by this Court in the judgment and also by

the Apex Court, permitting the High Court to constitute a new

SIT. Hence, we find that such ground should not operate as a bar

or by way of a second thought for non-constitution of the SIT and

the assignment of investigation to it.”

9.   The pertinent aspect is that when this Court expressly ruled

that by executive action the judgement or the order of the High

Court in exercise of the power under Article 226 of the

Constitution of India cannot be nullified, be it policy matter or be

it constitution of Special Task Force or constitution of monitoring
authority or otherwise and when it was further observed that

even if the State for the reasons best known to it, is desirous to

constitute Special Task Force or monitoring authority, it may be

made applicable to other cases namely; the encounter cases

other than the one considered and examined by this Court in

exercise of the power under Article 226 of the Constitution of

India, there was absolutely no necessity on the part of the State

or its Officer to file such an affidavit. The another aspect is that

the aforesaid order dated 24.9.2010, whereby the aforesaid

contentions were negatived and SIT was constituted, was carried

before the Apex Court and no interference has been made.

Under these circumstances, the approach on the part of the

State to re-agitate the question of transferring the investigation

to the Special Task Force can hardly be canvassed and we

deprecate the same. In all fairness, it was expected for the State

to wait till induction of the Chairman of SIT, who may be officer

from the Central Government and the submission could have

been made thereafter, but it appears that the stand of the State

as was earlier, which has been negated, is to see that the

investigation may be assigned to the Special Task Force. We

leave the matter at that stage, without observing further but the

fact remains that as per the above referred direction issued by
    us, full-fledged SIT has been constituted and, therefore, in any

    case, there is no reason to take a different view as sought to be

    canvassed.

    10.    We may only record that the SIT, which is constituted shall

    be given all assistance by the State Officers and any impediment

    in the function of the SIT in any manner, shall be reported to this

    Court.

    11.    We may also record that Shri Girish Laxman Singhal and

    others have preferred SLP (Cr.) No.9489 of 2011 before the Apex

    Court, but vide order dated 11.5.2011, the Apex Court has

    clarified that its earlier order dated 3.5.2011 shall not preclude

    the High Court from hearing the matter and to pass appropriate

    orders. However, it is clarified that the present order, in any

    case, shall be subject to the order that may be passed by the

    Apex Court in the aforesaid SLP.” (Emphasis supplied)

15. The matter came to be considered once again on

24.6.2011 and at that stage Dr. Satyapal Singh, the

Chairman     of   SIT     (hereinafter     referred     to   as    the

‘Second SIT’ for the same of convenience) tendered a

letter expressing certain difficulties and prayed that

he might be relieved as the Chairman of SIT and the

Court had passed the following orders:-
“1.The sealed cover report is considered. As per the report we

find that, there was some delay on account of the non-relieving

of the officer Dr.Satyapal Singh by Maharashtra Government and

he could not take over the charge, but it appears that thereafter,

investigation is in progress. The report also shows that the

further investigation including the team of expert is to be

consulted and the report is to be received.

2.   Hence, the matter could be considered for granting time for

submitting the progress report. However, we may record that

Dr.Satyapal Singh, Chairman who is personally present has

tendered letter dated 24.06.2011 through private advocate Mr.

Mihir Thakor with M/s. Singhi & Co., and has expressed certain

difficulties about the language and also for interrogation of one

of the batch mate of him, viz., Mr.P.P. Pandey. He has also shown

reservation about difference of opinion between other two

members of SIT and therefore, he has prayed that he may be

relieved as Chairman of SIT.

3.   As such, it was required for the Chairman of SIT to make

such request including the letter to the amicus curiae Mr. Yogesh

Lakhani who is already appointed by the Court to assist SIT as

and when required including in the proceeding of this Court. That

apart, we may also record that when this Court considered the
matter for appointment of the Chairman vide order dated

12.05.2011, the view of the Central Government was taken into

consideration and at para 2, it was observed as under:

     “Pursuant to the earlier order, Mr.P.S. Champaneri, learned

     Assistant S olicitor General on behalf of the Central Government has

     tendered the names of three officers; (1) Dr. S atyapal Singh, IP S

     (MH:80), (2) Shri J.V. Ramudu, IP S (AP:81), and (3) Shri Rajesh

     Ranjan, IP S (BH:84) and he declared before the Court that as per

     the instructions received by him from the Ministry of Home Affairs,

     Government of India, any officer so nominated by this Court will

     devote full time for ensuring that the investigation is completed at

     the earliest.”

  4. Thereafter, having taken into consideration the assurance

     of the Central Government and also the view of the learned

     Assistant        Solicitor   General,   Dr.   Satyapal   Singh   was

     appointed as Chairman. It is hardly required to be stated

     that the officer so nominated by the Central Government

     working in the cadre of IPS though their services might

     have been allocated to the State, it is within the power of

     the Central Government to make them to discharge the

     duty which the Court may assign after concurrence or after

     considering the views of the Central Government. In all
  fairness, the said officer could have moved the Central

  Government in this regard or through the Assistant Solicitor

  General also. Be as it may, when the aforesaid is put to

  Mr.Champaneri, learned Assistant Solicitor General, he

  stated that at the relevant point of time, his instructions

  were that Dr.Satyapal Singh would be the proper officer to

  ensure that the investigation is completed at the earliest

  and that is why, he made submission accordingly before

  the Court. He also submitted that in view of the aforesaid

  reservation shown by Dr.Satyapal Singh, he would like to

  have the views of the Central Government in this regard

  and he seeks one week time.

5. Considering the progress report, we find that as the team

  of experts is to visit and in any case further investigation

  by SIT should not be put on the grinding halt. Central

  Government shall clearly report to this Court about the

  continuation    of   Dr.Satyapal   Singh   or   otherwise    for

  nomination of any other officer if it is of the view that the

  said officer should be permitted to be relieved.

6. The progress report shall be submitted in sealed cover on

  14.07.2011. S.O. to 15.07.2011.

7. It is further directed that the investigation shall continue in
           the meantime.

        8. The sealed cover report shall be kept in the safe custody of the

           Registrar (Judicial).” (Emphasis supplied)


16. Thereafter, on 15.7.2011, on behalf of the union

of India, it was prayed to exempt Dr. Satyapal Singh

from the SIT and the names of other officers, including

Mr.Ramdu were offered.           This Court passed the following

order     for   reconstituting        SIT     by   appointing     Mr.J.V.

Ramudu as the Chairman of SIT (hereinafter referred to

as the ‘Third SIT’ for the same of convenience) and the

following order was passed :-


    “1.    As per the last order dated 24-06-2011 SIT has submitted

    the Progress Report of the Investigation. The said Report be kept

    in the safe custody of the Registrar (Judicial).


    2. This court in the aforesaid order at para 5 had observed:


           “Considering the progress report, we find that as the team

           of experts is to visit and in any case further investigation by

           SIT should not be put on the grinding halt. Central

           Government shall clearly report to this Court about the

           continuation    of   Dr.Satyapal    Singh    or   otherwise   for
     nomination of any other officer if it is of the view that the

     said officer should be permitted to be relieved.”

3. Today, Mr.P.S.Champaneri, learned Assistant Solicitor General

has tendered the communication dated 14-07-2011 received by

him from the Government of India, Ministry of Home Affairs,

conveying that Dr.Satyapal Singh, IPS, may be exempted from

the membership of SIT, Gujarat, and in his place, the Ministry has

identified three Officers, as below:

(1) Shri J.V.Ramudu, IPS (AP: 81)

(2) Shri Rajesh Ranjan, IPS (BH: 84)

(3) Shri R.C.Arora, IPS (MP: 79)

4. We have heard the learned counsel appearing for the original

petitioner as well as learned Advocate General. Considering the

facts and circumstances, Dr.Satyapal Singh, IPS, is relieved as

the Chairman of SIT, in view of the aforesaid communication

from the Central Government.

5. The next aspect to be considered is to make appointment of

another Chairman in his place. The name of Shri J.V.Ramudu, IPS

(AP: 81) was already there in the earlier list and he was the

person next to Dr.Satyapal Singh in the said list.

6. Mr.Champaneri, learned Assistant Solicitor General has

categorically made a statement, upon telephonic instructions
from the Joint Secretary, who is signatory of the letter dated 14-

07-2011, that the consent of the concerned State Government is

taken by the Central Government and even Officer concerned

has   also   been   conveyed    for   that    purpose.   The   Central

Government assures the Court that if the appointment is made

by this Court, the said Officer shall take up the duty immediately

and   will   complete   the   investigation    as   assigned   to   SIT.

Mr.Champaneri, learned Assistant Solicitor General, has also

stated that so is the case of Shri Rajesh Ranjan, IPS (BH: 84), but

for Shri R.C.Arora, IPS (MP: 79), consent of the concerned State is

yet to be received since the correspondence is on.

7. Under the circumstances, we find that Shri J.V.Ramudu, IPS

(AP: 81) be appointed as the Chairman of SIT, Gujarat. Hence,

ordered accordingly.

8. The State Government shall issue necessary Notification in

this regard on or before 19-07-2011. The said officer shall join

the duty immediately upon the publication of the Notification

and continue with the investigation in light of the earlier orders

passed by this Court.

9. As it has been stated on behalf of SIT, that the Report from

FSL, New Delhi, may take some time, we find that the matter can

be posted after some time. In the meantime, let the Reports be
    received from the experts of FSL, New Delhi, as well as AIIMS,

    New Delhi, and the investigation be also continued further. The

    progress Report shall be submitted in the sealed cover, on or

    before 04-08-2011.

    10. S.O. to 05-08-2011 at 2:30 p.m.

    11. It is observed that SIT shall ensure that appropriate

    protection is extended to the witnesses and if any requisition is

    made by SIT to the State for providing extra protection to the

    witnesses, the same shall be made available by the State

    Government.”

17. Thereafter, Union of India filed an application

being     Criminal    Misc.   Application     No.10244    of   2011,

contending     that     Mr.Ramudu,     who    was   appointed     as

Chairman of SIT, would not be in a position to take up

the assignment because of his ailment and, therefore,

the prayer was made to consider the name of another

officer to be the part of SIT.               The said application

came to be considered by this Court on 19.7.2011 and

the following order was passed :-


    “1.    Leave to correct the name of Mr.J.V.Ramudu in place of Dr.

    Satyapal Singh on page 6 para 4 as well as leave to correct the
description of Mr.R.R. Verma, IPS as (BH:81) and Mr.R.C.Arora, IPS

as (MP : 79).

2.   Rule. Mr.Lakhani for opponent No.1, Mr.Mukul Sinha for

opponent No.2 and Ms.Sangeeta Vishen, learned APP for

opponent No.3 waive notice of Rule.

3.   The present application is preferred by the Union of India

with a prayer to vary and/or to modify the order dated

15.07.2011 passed by this Court in Criminal Misc. Application No.

15981/10 so as to consider the name of other officer to be a part

of the Special Investigation Team (“SIT” for short).

4.   We have heard Mr.Champaneri, learned Assistant Solicitor

General for the applicant, Mr.Lakhani for SIT, Mr.Sinha for

opponent No.2 and Mr. Kamal Trivedi, learned Advocate General

with Mr.Prakash Jani, learned PP with Ms.Sangeeta Vishen,

learned APP for the State.

5.   It appears that the assurance on behalf of the Central

Government was recorded by this Court and this Court acted

upon the same, and thereafter order dated 15.07.2011 came to

be passed whereby Mr. J.V. Ramudu, IPS (AP: 81) was appointed

as the Chairman of SIT. When the application is moved, the

learned Advocate General has also tendered the copy of the

notification dated 18.07.2011 for reconstitution of SIT as it was
so directed by this Court to issue the notification on or before

19.07.2011.

6.   The circumstances as narrated in the application at

paragraph 4 reads as under:

     “4. The applicant states and submits that the applicant-Union of

     India is compelled to bring certain developments to the notice of the

     Hon'ble Court with regard to the nomination of a member of the SIT.

     The applicant states and submits that the Chief S ecretary, State of

     Andhra Pradesh, on 18.07.2011 has conveyed to the applicant-

     Union of India to the effect that, “Shri J.V.Ramudu, IP S (AP: 81),

     M.O.S. (Member of S ervice) has underwent a rare and complex

     surgery for cardio-maxilo facial surgery of the right mandible at

     Naryana Hrudayalaya, Bangalore on 12 th May, 2011 and in view of

     the serious nature of the surgery and regular post operative

     checkups, he was in Bangalore till 30th May, 2011. Two such post-

     operative reviews have been held during Mid-June and early July,

     2011 and there is a severe limitation and his food intake as well as

     speech due to resurrection of the right mandible and that he is still

     under severe pain. The D G P has, therefore, requested to inform

     about the inability of the Mo S to serve on the SIT on genuine

     medical grounds”.

     In view of the aforesaid facts and circumstances, the applicant-

     Union of India regrets the inconvenience caused to this Hon'ble
     Court in selection of a member of the SIT as new facts have now

     come to the knowledge of the Government which were not known

     earlier. The applicant also states and submits that in light of the

     delicate medical condition of the nominated Officer Dr.Satyapal

     Singh, IP S (AP: 80), the applicant-Union of India submits that under

     the given circumstances, the said Officer may not be available to be

     a part of SIT.”

7.   We find that the officer Mr. J.V. Ramudu because of physical

ailment of cardio-maxilo facial surgery, he is required to undergo

regular medical checkup and therefore, the desire has been

shown by the Union of India to the effect that he will not be in a

position to take up the assignment because he has limitation for

food intake as well as in speech and he undergoes severe pain

also for the said injury. Even otherwise also, if the officer

concerned has no inclination or zeal to work as the Chairman of

SIT, he will not be able to bring about the result as expected by

the Court while ordering investigation through SIT.

8.   Under the circumstances, we find that it would be a case to

change the Chairman of SIT, but subject to taking serious note of

the conduct and approach on the part of Union of India as may

be stated hereinafter.

9.   Concerning to the appointment of the new officer, the
details have been given in the application at para 5 (after

correction as permitted) as under:

      (a) Shri R.R. Verma, IPS (BH : 78). The Officer is on Central

      deputation since 10.02.2009 and currently posted as ADG,

      CISF. He has expressed his willingness to work as a member

      of SIT.

      (b) Shri R.C. Arora, IPS (MP : 79). Written concurrence of the

      officer and from the DGP, Madhya Pradesh is available.

      Formal concurrence of the State Government is awaited.

      (c) Shri Vivek Dubey, IPS (AP: 81). DGP, Andhra Pradesh,

      has telephonically conveyed his concurrence for deputation

      of the officer for this assignment. The officer has also

      expressed his willingness. A proposal is being sent by DGP,

      AP to State Govt. in this regard.”

10.   We find that in past when the officer of the IPS Cadre

working in the respective State Government was appointed, it

has created problem in functioning of SIT, may be on account of

non-availability of concurrence of the State Government or for

the personal circumstances of the officer concerned through

which possibly Central Government or the State Government

concerned are not in a position to prevail over so as to enforce

the duty cast upon him/them.
11.   In our view, such is also a very unhappy state of affairs. If

the Union Government is unable to command the officer when a

mandate has been given by this Court, it will never bring about

the truth for which the direction were issued by this Court. We

leave it at that stage on the said aspect, but it appears to us to

appoint an officer who is directly working under the Central

Government not concerned with the State Government so as to

ensure that he takes up the duty at the earliest and he

undertakes the work with full zeal and with spirit with which he

has to work as Chairman of the SIT. It appears that out of the

aforesaid three officers, Mr.R.R. Verma, IPS (BH : 78) has

expressed his willingness to work as member of SIT and the

Central Government has also shown willingness to nominate him

for the duty to be performed as Chairman/member in the SIT.

12.   Further, it appears that he is working as an Additional D.G.

under CISF, which is a paramilitary force of the Union of India,

expected with more degree of discipline.

13.   Hence, Mr.R.R. Verma, IPS (BH : 78) is appointed as the

Chairman of the SIT in place of Mr.J.V.Ramudu, IPS (AP: 81). The

necessary notification shall be issued by the State Government

on or before 22.07.2011. The said officer shall immediately take

over the duties within one week thereafter and proceed with the
investigation as per the order passed earlier.

14.   The      earlier   order   dated     15.07.2011   in   Criminal

Misc.Application No.15981/10 shall stand modified accordingly.

15.   However, before parting with, we find it proper to take

serious note of the way in which the officers were earlier

nominated by the Union of India and more particularly the last

nomination of Mr.J.V.Ramudu, IPS (AP : 81). We need not

reproduce the assurance given on behalf of the Central

Government as the same is already a part of the record of the

order dated 15.07.2011. But prima facie, it appears that Mr.

Champaneri, learned Assistant Solicitor General, acted on the

instructions     received   by   him     vide   communication   dated

14.07.2011 which was tendered to the Court at the relevant

point of time addressed by Joint Secretary to the Government of

India to Mr.Champaneri and as recorded in paragraph 6 of the

earlier order dated 15.07.2011, before making statement, the

instructions were conveyed to Mr.Champaneri telephonically by

the Joint Secretary, the very officer who is signatory of the said

communication Mr.Diptivilasa. The another pertinent aspect is

that in the very communication dated 14.07.2011, at paragraph

3, there is a note that the communication has the approval of the

competent authority in this Ministry which normally may be the
Secretary, Ministry of Home Affairs, Union of India.

16.   If there is a casual approach ultimately found by this Court

or any attempt to mislead this Court, it would attract further

serious action in this regard. We hardly need to record that the

sanctity of the proceedings and orders of this Court are required

to be respected by one and all and the first it should come from

the Union of India which is a Union Government. If the sanctity of

the proceedings before a constitutional court is not maintained

by the Union of India, it would stake democratic structure itself of

the nation. In our prima facie view, in order to see that nobody is

allowed to have foul play with the Court proceedings or any

callous or casual approach in the matter, this Court will have no

option but to maintain the authority of the Court and stern action

may be called for.

17.   However, before taking further decision in this regard, we

find it proper to give opportunity to the Secretary, Ministry of

Home Affairs as well as the Joint Secretary, Mr. Diptivilasa to

submit    their   written   explanation     separately    with   the

documentary proof thereof about the process of file stagewise

and the vacuum if any during the period in the said movement of

the file and the communications thereof. The Secretary, Ministry

of Home Affairs shall also in the said affidavit report to this Court
    about any remedial measure if the Government of India is

    desirous to take.

    18.    Such       explanations     shall     be    submitted        on    or    before

    05.08.2011.

    19.    S.O. to 05.08.2011 for further order.”

18. The        relevant           aspect        is     that,       in        place     of

Mr.Ramudu, Mr.R.R. Verma was appointed as the Chairman

of the SIT and a new SIT was constituted (hereinafter

referred       to     as    the    ‘Fourth            SIT’   for    the       same     of

convenience).               Further        on    account       of       the        casual

approach       on     the     part    of        the    Union       of    India,        an

explanation was ordered to be submitted, before this

Court     to    enable       the     Court      to     further      consider          the

matter, maintain the authority of the Court and take

stern action in this regard.

19. Gopinath Pillai – original petitioner of Special

Criminal Application No.1850 of 2010 had preferred the

application being Criminal Misc. Application No.10011

of 2011 for the reliefs, inter alia, to remove Dr.

Satyapal Singh as Chairman of SIT and further to hold

an inquiry as to how the witnesses were influenced to

retract        from        their     statements          and     other         reliefs
regarding the progress of the investigation, etc.               The

said application came to be considered by this Court

and the following order was passed on 5.8.2011:-

    1. The present application has been preferred by the application

      – original petitioner of Special Cri. Application No.1850 of

      2009 for seeking appropriate directions, which shall be

      referred to hereinafter.

    2. We have hard Mr.Mukul Sinha, learned Counsel appearing for

      the applicant, Mr.Kamal Trivedi, learned Advocate General

      with Mr.P.K. Jani, learned Government Pleader for the State

      and Mr.Lakhani, learned Counsel for SIT. The presence of CBI

      is not required at this stage.

    3. It appears that the first prayer for removal of Dr. Satyapal

      Singh as Chairman of SIT would no more survive on account

      of the subsequent development vide order passed by us in

      Criminal Misc. Application No.15981 of 2010, whereby Dr.

      Satyapal Singh has been relieved as Chairman of SIT and

      Mr.R.R. Verma has been appointed as the Chairman and he

      has also taken over as the Chairman of SIT.

    4. The second aspect, which has been pressed in service is to

      direct the inquiry as to how the witnesses were influenced to

      retract their statements and the appropriate action against
the person(s) concerned, who is responsible for retracting of

the statement of the witnesses. The learned Counsel in

support of the said submission, has relied upon the statement

made in the application at paragraph 1.k and 1.l, which has

been stated as under:-

  “(1.k) It is submitted that Shri Satish Verma, IPS had filed a

  detailed affidavit on 27.1.2011 in Criminal Misc. Application

  No.15981 of 2010 pointing out several acts and omissions

  on the part of the Chairman Shri Karnail Singh as well as

  the other Member Shri Mohan Jha, which were not assisting

  him in the proper investigation of the case. In paragraph

  14.2, Shri Satish Verma has clearly pointed out that one

  Motibhai Taljabhai Desai had given statement that would be

  severally damaging the FIR version of the incident. In

  paragraph    16,    it    is   pointed     out    that   there    were

  circumstances      to    indicate   that   Shri    Mohan    Jha   was

  connected with the retraction statement by Motibhai

  Taljabhai Desai and also the filing of the complaint against

  Shri Satish Verma. Similarly, it is learnt that the statements

  of other witnesses, including one Police Driver, Shri Shiv

  Singh, which were recorded by SIT, have also been

  retracted later on. In a news item published by the Times of
India dated 12.7.2011, it has been stated that several

witnesses have retracted their statements. It would thus,

appear that taking advantage of the inaction on the part of

the Chairman, Shri Satyapal Singh, the proposed accused

have been active in influencing and coercing the witnesses

to retract their statements, which were implicated.

(1.l)     In   the   aforesaid   facts   and   circumstances,   an

impression is created in the mind of the applicant that the

investigation being conducted by SIT till now has yielded no

concrete result and on the contrary, the conduct of the two

Chairmen have led to the deliberate delay in taking action.

It      also   appears    that    the    investigation   is   being

systematically sabotaged by the persons, who want to

scuttle the investigation. The systematic retraction of

statements of the witnesses that would implicate the police

officers is being carried out by the interested persons. In

the facts and circumstances, therefore, the applicant has

moved the present application for reviewing the order

dated 12.5.2011 and modifying the same to remove the

Chairman Shri Satyapal Singh from the Chairmanship of SIT

and appoint Shri Ramudu or any other Police Officer, who

can effectively conduct the investigation.”
4. We find that there is considerable substance in the aforesaid

  submissions inasmuch as in the affidavit filed by Mr.Satish

  Verma, one of the Members of the SIT dated 27.1.2011 in

  Criminal Misc. Application No.15981 of 2010, it has been

  stated at paragraph 5.3 as under:-

     “5.3 I state that Shri Mohan Jha had mentioned what he

     did(as quoted in para 10 of my note reproduced above) on

     25th December, 2010 afternoon after he had received a

     phone call. It is not known to me who called him with that

     input. The complaint of shri Moti Talja Desai, Head

     Constable, was received later in the evening by the

     applicant. So it is clear that somebody who knew about the

     complaint even before it was given to the applicant had

     informed Shri Mohan Jha about it. Earlier also, when a

     subordinate officer, Shri FS Pathan, DySP, was recording the

     statement   of   Shri   Raju   Jeerawal   at   Mehsana   on

     18thDecember, 2010, Shri Mohan Jha had come to know

     about it from somebody who was interested in watching the

     investigation, and had called up Shri Pathan to ask on

     whose instructions Raju Jeerawala had been called.”

5. We may also record that at paragraph 5.4 he stated, thus, the

  relevant of which reads as under:-
     “5.4 I must elaborate that Shri Moti Talji Desai, Head

     Constable, was examined by all the three officers of the SIT

     in the Senior Police officers Mess, Duffnala, Shahibaug on

     22nd December, 2010 from approximately 2210 to 2250 hrs.

     This witness was specifically told by the applicant that he is

     not being promised anything, and that whatever he says

     may also make him liable. Thereafter, the witness had

     made all the disclosures. A Police Inspector of Delhi named

     Shri Sunil Mittal, who was brought along by the applicant,

     was also present. Then the applicant and Shri Mohan Jha

     had left after telling me that his statement may be

     recorded. I had done that from 2300 hrs to 0150 hrs of

     23rd December, 2010 and then video recorded the witness

     reading his statement and confirming it to be a true record

     of what he stated. I specifically add that the gist of that

     statement is nothing but what the witness had said in the

     presence of the applicant and Shri Mohan Jha. ...”

6. The other part may not be relevant at this stage.

7. We take serious note that two important aspects; one is the

  statement made by the witnesses Mr.Moti Talji Desai and

  Shivsingh and others, who are the important witnesses for the

  issue involved in the matter. It is hardly required to be stated
that once the statement is made by any person before a

police officer in the investigation and thereafter if the

retraction is to be made in normal course, it is to be in the

Court. If subsequent statement is made before the very police

officer or an officer successor in office, at least one statement

goes wrong or rather would be false and can be stated as

misleading to a Government Officer and also to some extent,

it can also be said to assist or help the accused to get away

from the clutches of law. In such circumstances, it would also

be an offence under IPC and other relevant provisions. As we

can notice that two Members of SIT namely; Shri Satish

Verma, had recorded the statement and thereafter an

allegation has been made against Shri Mohan Jha for playing

role in helping the retraction of the statement or at least

helping the witnesses to back out from the statement, we find

that the Chairman of SIT, Mr.R.R. Verma himself should

investigate the said aspect. During the course of the

investigation, it will be for the Chairman of SIT to find out

whether any person has played any role in maneuvering the

witness or helped him to get the statement retracted and

thereby to frustrate a valuable piece of evidence of the

investigation or not. While undertaking the said investigation,
  the Chairman of SIT will be at liberty to interrogate, including,

  if required, after arrest, custodial interrogation of the person

  concerned. He will be at liberty to take help of the officer of

  his choice for investigation and be it mentioned that none of

  the other Members of SIT shall be involved in such

  investigation, but with a note of caution, that if he finds any

  serious material against any of the Members of the SIT having

  played any role in the aforesaid episode, he shall not take any

  action against the said member, but shall submit a report in

  sealed cover to this Court for such purpose.

8. As we have recorded earlier, there was a rift between the two

  Members of SIT namely; Shri Mohan Jha and Shri Satish

  Verma. We have in our earlier order with a view to see that

  SIT functions with all discipline as expected for a Police Force,

  stated that the functioning and discipline of the SIT shall be in

  the manner as stated in sub-paragraph (2) of paragraph 5 of

  the order dated 28.1.2011 in Criminal Misc. Application

  No.15981 of 2010, save and except that the Chairman of SIT

  now is different. We have also considered the subsequent

  report tendered in sealed cover of individual members of SIT

  and the Chairman of SIT when SIT was comprising of Shri

  Karnal Singh being the Chairman, Mr.Mohan Jha and Mr.Satish
Verma being Members. In those reports also, we find that

there   was   substantial   disagreement   between    the   two

Members of SIT namely; Shri Mohan Jha and Shri Satish

Verma. We may not deal with the contents in detail, since the

conclusion on the aspects as to whether the encounter was

genuine or fake is yet to be arrived at, but the aforesaid facts

at least lead us to assign more power and duties upon the

Chairman of SIT, who is an Officer of the Central Government

from a Paramilitary Force. Hence, we modify the earlier order

and direct the functioning of the SIT as under:-

  (a) The Chairman of SIT will be the sole officer to finally

  decide about the investigation to be carried out either by

  himself or through an officer whom he may find it proper to

  get the issue investigated. The other members of SIT will

  have right to express the opinion, but it will be for the

  Chairman to ultimately take final decision in the matter. We

  may clarify that such investigation shall be on the aspects

  other than referred to herein above for the episode of

  recording the statements of aforesaid witnesses and

  retraction thereof by them.

  (b) The Chairman of SIT will have right to decide the mode

  and manner of investigation, the mode and manner for
    taking   help   of   the   State   machinery   or   any   other

    Governmental Authority, but as observed earlier, the

    Members shall be at liberty to express the views but the

    final decision shall be taken by the Chairman.

    (c) The Chairman of SIT shall submit report in a sealed

    cover of the further investigation. He may record different

    views, if any, of the other members on the aspects, if

    touching to the issue(s) involved.

    (d) The Chairman of SIT shall be at liberty to take help of

    Amicus Curiae in the event of any complication in law or

    guidance on the legal aspect is required.

9. The aforesaid shall be the manner and method of further

  functioning by SIT. As the report of the experts namely; AIMS

  and Central Forensic Laboratory is yet to be received and as

  new Chairman has taken over recently, we find that the

  investigation on the above referred aspect would take some

  time, we, therefore, find it proper to give time up to

  7th September, 2011. By this time, sincere and full efforts shall

  be made by SIT to complete the investigation and the report

  shall be submitted in a sealed cover on 8 thSeptember, 2011

  about the progress and, the conclusion of the investigation, if

  any.
    10. We may record for the purpose of clarification that during

       the course of investigation, if the officer so finds it proper, he

       shall have all powers as available with the Investigating

       Officer under Cr.P.C., including for of making search, seizure,

       arrest etc., in accordance with law.

    11. It appears that in view of the aforesaid direction, the prayer

       D of the application for submission of separate report is not

       called for at this stage. Further, as the aspects of genuineness

       of the encounter or fake is yet to be finalized, the prayer for

       filing of separate and independent FIR is not granted at this

       stage.

    12. The application is disposed of accordingly. The copy of this

       order shall be kept in the proceedings of Criminal Misc.

       Application No.15981 of 2010.”



20. The present matter thereafter once again came to

be considered on 9.9.2011 and this Court after pursuing

the report of SIT in a sealed cover found it proper to

issue following directions, the relevant of which reads

as under:-

    “2.   Considering the contents of the Reports, we find it proper

    to issue the following directions:
(I) The State Police officers who are directly or indirectly

connected with the functioning of SIT shall not be transferred

outside Ahmedabad until the work of SIT is completed. One

officer Shri Mistri, who is stated to have been transferred outside

Ahmedabad, shall be re-posted in Ahmedabad and shall not be

transferred thereafter until the work of SIT is completed. The

State shall carry out the aforesaid direction.

(II)   The   Central   Government    officers,   who   have   been

requisitioned by the Chairman of SIT, shall join the duty at the

earliest and all cooperation shall be rendered by the Central

Government as and when it is so desired by the Chairman of SIT.

(III) The Board of Experts, to whom the queries have been raised

after receipt of the Report by the Chairman of SIT shall, at the

earliest, reply and forward their responses to the SIT within a

period of two weeks. It will be open to the Chairman of SIT to

communicate the order to the Board of Experts.

(IV) Further action, if any required, shall also be undertaken by

the Chairman of SIT and the same shall be completed preferably

within two weeks thereafter.

3.     Attempt shall be made to submit Report on the aspect of

genuineness of the encounter, or otherwise, so as to order

further action, and the Report shall be submitted on or before
    05.10.2011.

    4.    S.O. to 07.10.2011 at 2:30 p.m. for further orders.”



21. Again     the    progress      report        was   submitted         on

7.10.2011 and this Court passed the following order:-

    “1.   The progress report of investigation is submitted by SIT. As

    per the report, certain further queries are put to the Board of

    Experts and there is likelihood of discussion before the end of

    this month. It further appears that 'psycho analysis' test is also

    to be conducted on the witnesses, who have retracted from their

    statements.

    2.    Under   these   circumstances,    we    direct   that   all   such

    procedures be completed on or before 11.11.2011. Thereafter, all

    material will be considered by the SIT and the report shall be

    submitted on or before 18.11.2011. S. O. to 21.11.2011 at 2.30 p.m.

    The report submitted by the SIT be kept in a sealed cover in the

    safe custody by the Registrar (Judicial), Gujarat High Court.”



22.Thereafter, the said report (8th) has been submitted

on 18.11.2011 by the SIT and the unanimous conclusion

of SIT is as under:-

    (I)   The materials on record do not support the facts and
              circumstances mentioned in the FIR.

       (II)   Analyses of the circumstances and the scientific evidence

              as detailed in the foregoing chapters, indicate that the

              incident as projected to have had happened on 15.6.2004,

              does not conform to the ingredients of a real police

              encounter, in order to justify the killings while exercising

              the right of self-defense and, therefore, the genuineness of

              the police encounter as tried to be brought out in the FIR, is

              quite suspect and lacks credibility, suggesting that the

              encounter was not a genuine one.”



23. We may state that the final report, which is the

eighth        progress     report,      concluding      the    aforesaid

comprises of 63 pages and 11 annexures, but as the

disclosure of the material therein at this stage may

affect the investigation thereafter, to be undertaken

in accordance with law, we have found it proper not to

reproduce or refer to the findings on each point by the

SIT.      We only state that the detailed investigation and

the report as submitted by the SIT in its final (8th)

progress report goes to suggest that the encounter was

not genuine.
24. In view of the aforesaid facts and circumstances,

as further directions in this regard are called for to

the SIT and further to put the law into motion, so as

to reach its logical end, we have heard the learned

Counsel appearing for the parties on the aspect of

registration       of   another/fresh     FIR     and   also    on   the

aspect of which Agency should be entrusted with the

investigation       thereof,     namely;      whether     (a)     State

Agency; or (b) SIT itself; or (c) NIA; or (d) CBI.

25. We have heard Mr.I.H. Sayed, learned Counsel for

Samima    Kausar    –   the    petitioner    of   Special      Criminal

Application     No.822    of    2004,    Mr.Mukul   Sinha,      learned

Counsel for Gopinath Pillai – original petitioner of

Special Criminal Application No.1850 of 2009, Mr.Yogesh

Lakhani, learned Amicus Curiae appointed by the Court

for    SIT,   Mr.Kamal    Trivedi,      learned   Advocate      General

with     Mr.Prakash      Jani,    learned       Public    Prosecutor

assisted by Ms.Sangeeta Vishen, learned APP and Mr.P.S.

Champaneri,     learned       Assistant     Solicitor    General      on

behalf of the Union of India.


ANOTHER/FRESH FIR
26. The first aspect that deserves to be considered is

that of the registration of another/fresh FIR in view

of the conclusion arrived at by the SIT unanimously, in

its final (8th) report.

27. Before we proceed to examine the factual aspects,

we may first refer to the law on the subject.              In case

of Upkar Singh vs. reported in 2004(13) SCC, 292, the

Apex Court had an occasion to consider the aspect for

registration/filing      of    another/fresh        FIR   and    at

paragraph 17, it was observed as under:-

        “17. It is clear from the words emphasized hereinabove in

        the above quotation, this Court in the case of T.T. Antony

        vs. State of Kerala & Ors. has not excluded the registration

        of   a complaint in the nature of a counter case from the

        purview of the Code. In our opinion, this Court in that case

        only held any further complaint by the same complainant

        or others against the same accused, subsequent to the

        registration   of a case, is prohibited under the Code

        because an investigation in this regard would have already

        started and further   complaint against the same accused

        will amount    an improvement     on the facts mentioned in

        the original   complaint, hence   will be   prohibited under
             Section 162 of the Code. This prohibition noticed by this

             Court, in our opinion, does not apply to counter complaint

             by the accused in the 1st complaint       or on his        behalf

             alleging a different version of the said incident.”

28. Thereafter, in the case of Nirmal Singh Kahlon v

State of Punjab and Anr., reported in (2009) 1 SCC,

441, the second FIR was lodged by the CBI on a wider

canvas based on the primary inquiry conducted by the

CBI   and      after    having       collected      large     number       of

materials and recording of the statements.                  The earlier

FIR contained certain misdeeds of the individuals and

there was no clear reference to the commission of the

crime by the office-bearers of the Panchayat in the

selection        process     and     the    aspect     came        up     for

consideration before the Apex Court incidentally was

for examining the maintainability of the second FIR.

It was observed by the Apex Court at paragraph 67 as

under:-

      “67.    The second FIR, in our opinion, would be maintainable not

      only because there were different versions but when new

      discovery is made on factual foundations. Discoveries may be

      made by the police authorities at a subsequent stage. Discovery
       about    a     larger    conspiracy      can     also   surface      in   another

       proceeding, as for example, in a case of this nature. If the police

       authorities did not make a fair investigation and left out

       conspiracy aspect of the matter from the purview of its

       investigation, in our opinion, as and when the same surfaced, it

       was open to the State and/ or the High Court to direct

       investigation in respect of an offence which is distinct and

       separate from the one for which the FIR had already been

       lodged.”



29. The question once again came up for consideration

before the Apex Court in the case of Rubabbuddin Sheikh

v. State of Gujarat and Others, reported in (2010) 2

SCC,     200,       wherein         the   facts    could       now    be     said    as

similar to the facts in the present case , as may be

stated by us hereinafter and the same can be traced at

paragraph         1    of      the    said     decision,        which       reads    as

under:-

       “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 to take

    action. This letter of the Registry of this Court was issued on

    21.1.2007 (sic 21.1.2006).    After about six months and after

    several reminders, the Director General of Police, Gujarat,

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

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

    registered as Enquiry No.66 of 206.           From 11.9.2006 to

    22.1.2007 four interim reports were submitted by one V.L.

    Solanki, Police Inspector, working under Ms. Johri.”



30. The     Apex     Court,      after     having      taken     into

consideration the Eight Action Taken Reports and having

found that the police authorities in the State had

failed to carry out a fair and impartial investigation

as envisaged by the Apex Court, and as no fresh FIR was

filed     despite   the    preliminary      investigation,       made

observations at paragraphs 68 to 71 as under:-

    “68. 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.



69.   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 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.



70.   In our view , the investigation of crime was carried out

dehors 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.
     71.   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.”



31. The aforesaid shows that if the FIR was filed for

an   alleged       encounter       and    subsequently       in     the

investigation,      the    truth    is   found   to   be   otherwise,

including the encounter not being genuine, it may call

for filing of another/fresh FIR for commission of other

crimes, resulting in the death of the persons, which

may further be required to be investigated.

32.In case of Babubhai v. State of Gujarat, reported in

2010 (12) SCC, 254, on the aspect of filing of two

FIRs, the Apex Court has elaborately dealt with the

case law from paragraph 13 onwards, after considering
its earlier decisions in cases of Ram Lal Narang v.

State     (Delhi   Admn.)   (1979)    2    SCC    (Cri)   479;      T.T.

Antony v. State of Kerala, (2001) 6 SCC 181; Upkar

Singh v. Ved Prakash, (2004) 13 SCC 292, Rameshchandra

Nandlal Parikh v. State of Gujarat, (2006) 1 SCC 732,

Nirmal Singh Kahlon v. State of Punjab, (2009) 1 SCC

441, and further observed at paragraphs 20 and 21 as

under:-

    “20.        Thus, in view of the above, the law on the subject

    emerges to the effect that an FIR under Section 154 Cr.P.C. isa

    very important document.              It is the first information of a

    cognizable offence recorded by the Officer In-Charge of thePolice

    Station. It sets the machinery of criminal law in motion and

    marks the commencement of the investigation which ends with

    the formation of an opinion under Section 169 or 170 Cr.P.C., as

    the case may be, and forwarding of a police report under Section

    173 Cr.P.C. Thus, it is quite possible that more than one piece of

    information be given to the Police Officer In-charge of the Police

    Station in respect of the same incident involving one or more

    than one cognizable offences.

    21.    In such a case, he need not enter each piece of information

    in the Diary. All other information given orally or in writing after
       the commencement of the investigation into the facts mentioned

       in the First Information Report will be statements falling under

       Section 162 Cr.P.C. In such a case the court has to examine the

       facts and circumstances giving rise to both the FIRs and the test

       of sameness is to be applied to find out whether both the FIRs

       relate to the same incident in respect of the same occurrence or

       are in regard to the incidents which are two or more parts of the

       same transaction. If the answer is affirmative, the second FIR is

       liable to be quashed. However, in case, the contrary is proved,

       where the version in the second FIR is different and they are in

       respect of the two different incidents/crimes, the second FIR is

       permissible. In case in respect of the same incident the accused

       in the first FIR comes forward with a different version or counter

       claim, investigation on both the FIRs has to be conducted.”

       Emphasis supplied



33.The aforesaid makes it clear that if the version of

the first FIR or the allegation made in the first FIR

about the encounter having taken place and life having

been     lost   by     the    person    concerned   in   such   alleged

encounter       that     is    not     found   to   be   genuine,    the

resultant effect would be that the death of the victims
could have occurred at a different place, different

time and, may be, in a different manner.                     But it is

undisputed position that the concerned police officers

have entrusted the dead-body of the deceased for the

postmortem report and other inquest panchnama, etc.                  If

the investigation already made in connection with the

FIR for the lives lost in the encounter reveals that

lives were not lost in a genuine encounter, and if the

ingredients     of   a   genuine    police       encounter    are   not

satisfied to justify the killings, and the credibility

of the encounter itself is suspect suggesting that it

was   not   genuine,      then     it    would     be   a    case   for

registration of another/fresh FIR, for commission of

the   alleged    crime    based     on   the     findings     and   the

conclusion so recorded by the SIT as referred to herein

above.

34. It is hardly required to be stated that if the

deceased have not lost their lives in an encounter, in

any case, it would make it a case for the death of the

deceased through any action by the culprit other than

that of so-called encounter.             It may also result into
causing death of the person concerned through any mode

or action of conspiracy or commission of crime, which

will   have       to     be   investigated           by     the       team    of

investigating          officers    or    the     agency          as    may    be

considered proper by this Court.                     It is also hardly

required to be stated that if the action or the crime

is for taking life of somebody or for causing death of

somebody, it would be an offence under Section 302 of

IPC and may also attract other offences of IPC or any

other relevant provisions of law.                    We do not wish to

express any concrete or conclusive observations on the

said aspect since the fresh/another FIR is yet to be

registered and the investigation thereof is yet to take

place, and any observation made by this Court on the

aspects of commission of crime at a place or in a mode

or the manner other than that of an encounter, may also

prejudice     the       rights    of    the     alleged          accused      at

different stages, including that of trial, if any such

circumstances arise.              We may also clarify that the

aforesaid     observations        are   made    only        to    record     the

reasons     for        requirement      of     the        registration        of
fresh/another       FIR   based      on    the    premise   that    the

encounter was not genuine.                 Hence, it appears that

appropriate directions will be required to be given to

the Chairman, SIT for registration of another/fresh FIR

of the incident in accordance with law at a police

station of the concerned area within whose jurisdiction

alleged offence could be said to have been committed as

per the investigation papers of SIT.                 The Chairman of

SIT even if is not sure about the exact place, the time

and the date on which the deaths of the deceased have

been caused, would be required to lodge the complaint

in   a    manner,     which        would   enable     the   concerned

investigating   agency        to    further      investigate   in   the

matter.

35. The learned Advocate General by relying upon the

decision of the Apex Court in the case of Jakia Nasim

Ahesan & Anr. v. State of Gujarat & Ors., in Criminal Appeal

No.1765 of 2011 (decided on 12.9.2011) made an attempt

to contend that in the said decision, the Apex Court

did not permit the registration of another/fresh FIR,

but only directed the submission of the report to the
concerned Court, leaving the concerned Court to take

further action in this regard and, therefore, it was

submitted   that    when   the   FIR    is    already   registered

regarding the incident being C.R. No.8/2004, with the

Crime Branch Police Station, even if it has transpired

in the investigation that the encounter is not genuine,

such report can be filed in the concerned criminal

court and the concerned Criminal Court may take action

in accordance with law and this Court may not direct

the registration of another/fresh FIR.

36. It    appears    to    us    that        the   contention   is

misconceived and the reliance is ill-founded, inasmuch

as in the case before the Apex Court in the case of

Jakia Nasim Ahesan & Anr. v. State of Gujarat & Ors. (supra), FIR

for the alleged crime regarding Section 302 of IPC and

other offences was already registered with Meghaninagar

Police Station, Ahmedabad and after investigation, the

charge-sheet was also filed against certain accused.

Not only that, but the case was already committed to

the Court of Sessions, Ahmedabad.              Thereafter, during

the course of the trial, the appellant before the Apex
Court was desirous of lodging another complaint against

certain persons for the very offences.                 Such is not the

fact situation in the present case.                 Had it been a case

where the encounter was found to be genuine, which may

involve other persons in addition to those, who are

already shown in the complaint, it might stand on a

different     footing       and    different       consideration       would

have    applied.           In    the    present     case,    the      entire

allegations in the FIR regarding loss of lives of the

deceased in a police encounter are not found to be

genuine.      Therefore, once a conclusion is drawn that

the    encounter     is    not     genuine,    a    case    is   made    out

regarding commission of other offences under the IPC,

which may involve those police officers, who are stated

to    have   taken    the       lives   of   the    deceased     in    self-

defence,     in      the    police      encounter.          Under     these

circumstances, the reliance placed upon the decision

referred to by the learned Advocate General is ill-

founded.      Further, as already observed by us after

having taken into consideration the case law prevailing

for registration of another/fresh FIR, we find that
since the nature of the incident and the alleged crime

has   come    out   to   be   different   on   account   of   the

encounter     having     been   found     to   be   non-genuine,

registration of a fresh/another FIR would facilitate

the investigating machinery to locate the crime and the

persons involved therein.         Apart from the aspect that

in the event the charge-sheet is filed, there would be

a proper base for the conduct of the trial.          Therefore,

the contention of the learned Advocate General does not

deserve to be accepted.

INVESTIGATION AGENCY

37. The next aspect is regarding which agency should

conduct      the    investigation   after      registration    of

another/fresh FIR as observed herein above.

38. Mr.Sayed and Mr.Sinha, learned Counsel on behalf

of the original petitioners have prayed that when SIT

is already constituted, this Court may continue the

investigation of another/fresh FIR also with the SIT.

They have contended that though it was earlier prayed

by the petitioners for the investigation through CBI,

now they are not desirous to see that the investigation
of another FIR be made by CBI.              Therefore, they submit

that the same SIT be continued.

39. Whereas, Mr.Yogesh Lakhani, Amicus Curiae at the

first    instance   submitted        that    he   had    no    specific

instructions through SIT or its Chairman on the aspects

of investigation by it. However, at a later point of

time, Mr.Lakhani made submissions so as to assist the

Court and contended that the same SIT can be continued

with the task of investigation after the registration

of another/fresh FIR.

40. At    this   stage   we    may    also    state     that    Mr.R.R.

Verma, Chairman of SIT and Mr.Mohan Jha, another Member

of SIT, declared before the Court during the course of

hearing, that they are desirous of being relieved from

the SIT because of various personal circumstances.                   As

per the Chairman of SIT, since his task of finding out

the   genuineness   of   the    encounter,        or    otherwise,   is

complete he may be relieved.           Whereas, Mr.Satish Verma,

the remaining Member of the SIT is not desirous to be

relieved as a Member of SIT.            It may be recorded that

Mr.R.R.Verma has given in writing vide letter dated
18.11.2011 addressed to the Registrar (Judicial) that

he wants to be relieved.      Further he has also given in

writing vide letter dated 21.11.2011 that this Court

may consider the closing of the Special Cell of SIT,

since   on    the   aspects    regarding    retraction   of

statements,   custodial    interrogation,   etc.   may   be

required to be carried out.

41. Mr.Lakhani also clarified that he is not making

submissions upon instructions received from the Members

of the SIT to continue with the investigation by the

SIT after registration of another/fresh FIR, but has

made submissions only with a view to assist the Court.

42. Whereas the learned Advocate General appearing for

the State submitted that the first choice on the part

of the State is the investigation of another/fresh FIR

through the State Agency.       He has submitted that if

this Court finds it proper to give the investigation

to an agency other than that of the State, then in his

submission, it may be given to NIA or CIB.         However,

the State has various reservations and objections for

the investigation to be carried out through the SIT,
more particularly when one of the Members of the SIT

namely; Mr.Satish Verma, is facing other charges in

connection with another incident.

43. Whereas          on     behalf     of    the   Union     of     India,

Mr.Champaneri,            learned    Assistant     Solicitor       General

submitted that NIA will have jurisdiction only if the

allegations          of   conspiracy    to     commit    terrorist      acts

continue, and it does not result into only offences

under IPC.           It was submitted that the NIA would be

willing     to       take    over    the     investigation,       but   its

jurisdiction is limited to the scheduled offences.                       He

submitted that CBI is already over-burdened with many

cases and its resources are already spread too thin.

Moreover,        a    number    of     posts    are     vacant    in    the

organization of CBI.            It was further submitted that in

case the investigation is not entrusted to NIA, an

officer can be spared, who has atleast 4 to 5 years'

remaining period of service and who may be given powers

of an SHO, who can be free to choose his own team for

the   investigation,           prosecution      and     trial,    and    the

Government of India can identify such an officer of the
rank of a DIG, for this purpose.

STATE AGENCY

44. As the first choice as per the State is the State

agency, we find that the said aspect deserves to be

considered first.

45. In the judgement of this Court dated 12.8.2010 in

Special     Criminal     Application     No.822     of    2004,    vide

paragraph    78   of   the   said    judgement      (reproduced     at

paragraph 5 herein above) it was observed that the

investigation by the I.O. and the Additional DGP was

not   satisfactory     and   it   was    also     observed   that   to

instill     confidence     and    provide   credibility       to    the

investigation, is a must.               It is true that at the

relevant point of time, there was no material on record

before the Court regarding any malice or mala fide on

the part of the officers of the State, therefore, the

Court declined the transfer the investigation to CBI as

was prayed by the petitioner therein.                    However, the

subsequent    circumstances       can    better    be    narrated    as

under:-

(1) In spite of the constitution of SIT by this Court
vide above referred judgement dated 12.8.2010, for the

purpose of investigation, an attempt was made by the

State to assign the investigation to the Special Task

Force    and   this     Court     in   its   order    dated       24.9.2010

(reproduced at paragraph 6 herein above) had observed

that such decision on the part of the State or attempt

can hardly be considered as a valid ground to recall

the observations made for constitution of SIT.

(2) In the aforesaid very order when the reservation

was    shown     by    the   State       against   the     inclusion      or

induction of any officer of IPS Rank from outside the

State, this Court had observed that such reservation

cannot be countenanced and thereafter, this Court did

constitute the first SIT headed by Mr.Karnal Singh as

Chairman.

(3) In the report of Mr.Karnal Singh dated 20.4.2011

vide    paragraph      58,   it     was    suggested       that   judicial

inquiry or some other inquiry be conducted to unearth

the forces acting within the State, who are trying to

hamper   the     impartial        investigation      and    it    was   also

stated    that    he    is   of    the    considered       view    that   an
impartial         and     fair    inquiry       is     not     possible      by

appointing         the    officers       from   the     State      Police    to

investigate the case.             It was proposed that either the

three SIT Officers should be from outside the State or

the investigation may be handed over to an independent

agency.       In the very report at paragraph 63 it was

prayed by him that an               inquiry be ordered to unearth

the forces acting within the State, who are trying to

derail      the    investigation         and    are    obstructing          the

impartial and fair investigation.                     It had been stated

that   he    is     of    the    view    that   a     fair   and   impartial

investigation requires that either investigation to be

conducted by SIT Members from outside the State or by

an independent agency.

(4) This          Court    in      its     order       dated       28.01.2011

(reproduced at paragraph 9 herein above) had to observe

that it would be open to the SIT to intimate the names

of the officers or the witnesses to be interrogated or

those who may be the witnesses to the incident, and

such officials shall be posted in a manner that they

are not required to work under the higher officers, who
are directly or indirectly involved in the incident and

the State was further directed to act accordingly upon

the information so received from SIT.

(5) This     Court,     in   its     order    dated     8.4.2011

(reproduced at paragraph 11 herein above) had taken

note of the fact that in spite of the direction issued

earlier    and   the   requisition   made    by   the   SIT   for

transfer of certain police officers, namely; Mr.P.P.

Pandey, Mr.G.S. Singhal, and Mr.Tarun Barot, they were

not transferred and, therefore, a specific time-bound

direction was given to comply with the earlier order

with one week.

(6) When certain record of FSL was seized by Mr. Stish

Verma, one of the members of the SIT, during the course

of investigation, a complaint was filed against him

without it having been brought to the notice of this

Court, and without the permission of this Court.              In

the aforesaid very order dated 8.4.2011, this Court had

to observe that no attempt should be made for creating

any hindrance or obstruction in the investigation.

(7) In spite of the aforesaid direction to transfer
certain police officers within a particular time limit,

the compliance was not made until the Board of experts

visited and reconstructed the scene at the site of the

incident and one of the officers Mr.G.S. Singhal who

played major role at that stage was otherwise supposed

to be transferred prior thereto was not transferred.

The aforesaid aspect of major role played by the said

officer has also transpired in the 8th report of SIT.

(8) The aforesaid (except the reference in 8th report

of SIT) is taken note in the order dated 21.4.2011

(reproduced at paragraph 13 herein above).                     This Court

thereafter     in     the       very   order       had    to   call     for

explanation of the Secretary of the home Department of

the State Government before concluding on the aspects

whether     action    be    initiated       under    the    Contempt    of

Courts Act, or not.

(9) Once again when the matter came to be considered

by   this     Court       on     12.5.2011     (reproduced        at    14

hereinabove), an attempt was made on the part of the

State     Government       by    way   of     suggestion       that     the

investigation       may    be    assigned     to    the    Special     Task
Force, which is to work under the monitoring authority

instead of constitution of a new SIT and this Court had

to decline such prayer in order to instill confidence

and credibility in the investigation by observing that

the approach on the part of the State to re-agitate

such questions deserves to be deprecated.

(10)       Again    on   9.9.2011   this    Court   had     to   issue

direction to State vide order (reproduced at paragraph

20 herein above) that the State shall not transfer the

officers     connected    with   the     functioning   of    the   SIT

until the work of the SIT is over and one Mr.Mistry,

who has already been transferred shall be reposted in

Ahmedabad and shall be continued until the work of SIT

is over.

(11)       The     investigation     report    of   State        Police

Officer namely; Ms.Parixita Gurjar is found to be not

correct as per the investigation made by the SIT.

(12)       Further, all top, high officials of the State

up to the rank of the then DGP may fall within the

ambit   of       investigation      in    connection      with     the

registration of another/fresh FIR.
45. The     aforesaid      facts        and      circumstances,        if

considered, cumulatively, keeping in view the paramount

consideration      of     instilling          confidence       in     the

investigation and for maintaining the credibility of

investigation with the aim to book the real offenders,

it appears to us that now it would not be a case to

assign the investigation to the State agency.

SIT

46. On    the   aspects    of    investigation      to    be   made   of

another/fresh     FIR     by    SIT,    following        aspects     have

transpired:-

(1) It    was    already        ruled     vide     judgement        dated

12.8.2010   in   Special       Criminal   Application       No.822     of

2010 paragraph 78.10(reproduced at paragraph 4 herein

above) that the Members of SIT or the SIT works under

the control of this Court and hence alteration in the

composition or constitution of new SIT, cannot have

demoralizing effect, but can be termed as a transfer of

work or assignment simplicite.

(2) This Court had taken note of the aspects in its

order dated 24.9.2010 (reproduced at paragraph 7 herein
above) that if the very SIT for riot cases is unable to

take up the investigation, the consequence may arise

that   either    no    result       may     come    out,    for   which the

direction      has     been        issued    by      this   Court    or    in

alternative it would not serve any purpose whatsoever.

(3) This       Court      in        the      order     dated      28.1.2011

(reproduced at paragraph 9 herein above)                          had found

that   there    were    differences          of    opinion     between    the

Members of SIT and the same was also reflected in the

affidavit of Mr.Satish Verma and, therefore, this Court

had to lay down the discipline amongst the Members of

the SIT themselves and Mr.Karnal Singh was appointed as

the Chairman of SIT and the other two police officers

were appointed as the Members of the SIT.

(4) In order dated 8.4.2011 (reproduced at paragraph

11   herein    above)     this       Court    had     recorded    that    the

investigation of SIT was not satisfactory on account of

the non-availability of its Chairman Mr.Karnal Singh.

(5) This       Court      in        its      order     dated      21.4.2011

(reproduced at paragraph 13 herein above) had noted the

fact   that     because       of    non-availability         of   Chairman,
Mr.Karnal    Singh          was   permitted         to     be    relieved,       the

duties were required to be demarcated amongst other two

Members     of        the    SIT,        since       there        were     various

differences       of    opinion         in    the    mode        and   manner     of

investigation.

(6) In the report of Mr.Karnal Singh dated 20.4.2011

he also opined and prayed for investigation by SIT

Members from outside the State or by an independent

agency.

(7) After Dr. Satyapal Singh having been appointed as

Chairman     of       SIT,    this       Court       in    its     order     dated

24.6.2011 (reproduced at paragraph 15 herein above) had

recorded     that       Dr.       Satyapal          Singh        had     expressed

difficulties about the language and interrogation of

Mr.P.P. Pandey, who is his batch mate and had shown

difference       of    opinion      between         two    SIT     members      and,

therefore, he had prayed for relieving him as Chairman

of SIT.

(8)        Thereafter,            this       Court        vide     order     dated

15.7.2011    (reproduced           at     paragraph        16     herein    above)

relieved    Dr.       Satyapal       as      the    Chairman        of    SIT    and
appointed Mr.Ramudu in his place.

(9)        The      Union   of    India      thereafter      once     again

prayed to substitute Mr.Ramudu by another officer and

this Court vide its order dated 19.7.2011 in Criminal

Misc.    Application        No.10244      of   2011    (reproduced        at

paragraph      17    hereinabove)      did     observe      that    if   the

officer concerned has no inclination or zeal to work as

Chairman of SIT he will not be able to bring about the

result    as     expected    by     the   Court        while       ordering

investigation through SIT and, therefore, in place of

Ramudu, Mr.R.R. Verma was appointed as the Chairman of

SIT (IO).        In the aforesaid very order this Court had

to record the unhappy state of affairs namely as that

the Union Government was unable to command its officers

when a mandate was given by this Court.                        The Court

further recorded that such a situation will never bring

about the truth for which the directions were issued by

this Court.         This Court in the aforesaid very order had

further taken serious note of the casual approach on

the     part   of     the   Union    of      India    and    had     issued

directions calling upon the officer concerned to submit
the    explanation         in   this      regard,       before   taking     any

further stern action to maintain the authority of the

Court.

(10)         This    Court      in    its      order    dated    5.8.2011    in

Criminal Misc. Application No.10011 of 2011 had taken

note    of    the    serious         aspects      of    retraction     of   the

statement      by    the    important          witnesses      even   when   the

investigation by SIT was going on and allegation by one

of the members of the SIT regarding playing of a role

in the retraction, by one of the Members of the SIT

itself and, therefore, this Court had to direct the

Chairman      of    SIT    himself        to    investigate      the    matter

regarding       retraction           of     the        statements      of   the

witnesses.         Of course, it was observed that the action,

if any, to be taken against any members of the SIT

could only be taken after permission is granted by this

Court.

(11)         The Chairman of SIT has submitted the report

and has found that the first statement of the main

witnesses      namely;       Motibhai       Desai       and   Shivsingh     were

voluntary      and    were       not      given    under      compulsion     or
duress,       and      for    further          investigation          regarding

retraction       of    such       statements,      interrogation        may    be

required.

(12)       The final (8th) report of the Chairman, of the

SIT     has         been      given       unanimously.                 However,

simultaneously he has given in writing that he may be

relieved as a Member of SIT and has declared before the

Court that he and Mr.Mohan Jha are desirous of being

relieved      from     the    SIT,       whereas      Mr.Satish       Verma    is

desirous to be relieved as a Member of SIT.

(13)       The Chairman of SIT Mr.R. R. Verma has given

in    writing       that     on    the    aspects       of    retraction       of

statements       of    the     witnesses,         final      report    is     not

submitted,       but    interim       report     is    submitted       and    for

further investigation custodial interrogation may be

required.        He    has    requested        that     such   work     may be

assigned to another person or agency by closure of the

said Special Cell of SIT.

(14)       The      Chairman        of   SIT    during       the   course      of

hearing    has      also     declared      that    if     investigation        of

another FIR is given to SIT, there is no facility of
getting the person arrested, nor is there any place

available for custodial interrogation.                      He submitted

that   if    the    remand   is    given     there    is    no    facility

available.         He also stated before this Court that at

one point of time when SIT wanted to interrogate some

persons, an oral request was made to CBI but the same

was declined.

47. The     aforesaid      facts     and    circumstances         as   have

transpired after assignment of the work to SIT show

that the conduct of investigation by SIT, in spite of

the directions issued by this Court, has remained very

slow at the initial stage.                As per the report of Dr.

Karnal Singh dated 20.4.2011 a few                 substantial details

had come out.        It is significant to note he had stated

at   paragraph      58   that     there    were    forces    at   various

levels      of     the   State,     which     perhaps       are   causing

impediment in the impartial and fair investigation and

he had also prayed for investigation to be conducted by

SIT members from outside the State or by an independent

agency.          After   Mr.Karnal         Singh    was     relieved    as

Chairman, the progress of investigation by the SIT was
slow     and     in     the   meantime,       the    second      Chairman,

Dr.Satyapal Singh, also prayed to be relieved.                      It is

true that substantial progress came about after Mr.R.R.

Verma took over as the Chairman of SIT, at least to the

extent of finding out as to whether the encounter was

genuine, or not. But he has also not been able to give

a   final      report    on   the   aspects    of    the    persons, who

played a role in retraction of the statements of the

witnesses.       In any case, Mr.R.R. Verma has also prayed

for being relieved as the Chairman of SIT.                       There are

serious differences of opinion between the other two

Members     of    SIT    namely;     Mr.Mohan       Jha    and   Mr.Satish

Verma.      In any case, Mr.Mohan Jha has shown his desire

to be relieved as a Member of the SIT.                     Consequently,

only one Member remains i.e. Mr.Satish Verma who has

not shown willingness to be relieved as a Member of

SIT.     This brings about a situation that the majority

of members of the SIT, including the Chairman, are not

desirous of continuing with the SIT.

48.It is hardly required to be stated that officers,

who are not desirous of take up the assignment, would
have no zeal or sincerity              to conduct and complete the

investigation       in    the   right      spirit.     The    willingness

shown by the Union of India to spare another officer,

in view of the aforesaid facts and circumstances, shows

that it has not seen the reality in the manner as it

was expected to command its officers to comply with the

mandate     and    directions     of    this     Court       in    its    true

spirit.      Further, as stated by the Chairman of SIT,

there is no facility of custodial interrogation, or any

basic infrastructure in a full-fledged manner available

with the SIT for conducting the investigation, such as

public prosecutor, etc.               At every level SIT will be

required to be dependent upon the State Agency and in

view   of    the     reasons      mentioned       herein          above    the

assignment     of    such    work     or     getting    the       work    done

through      the     State      Government        may        derail        the

investigation       and   allow     certain     forces       to    enter    at

various levels that may be uncontrollable by SIT.                          In

any case, when the matter is to be considered from the

stage of filing of FIR until the investigation and

conclusion    of    trial,      all    the    aforesaid       aspects      may
assume much importance.            Therefore, we find that after

registration of another/fresh FIR based on the final

(8th) report of SIT, the investigation be assigned to

the agency other than that of SIT.                    But since one of

the   Members   of    SIT,    Mr.Satish       Verma        has    not    shown

willingness to be relieved, his assistance can be taken

by    the   agency,   to     which    the    work     is    assigned          for

investigation of the aforesaid another-fresh FIR.                            Such

assistance of one of the Members of SIT, Mr.Satish

Verma would enable the investigating team of another

agency to get clues and may also prove to be very

helpful,     though     ultimately          the     opinion        of        such

investigating       agency    is     to   prevail,       subject        to   the

orders of the Court.

NIA

49. The      next     aspect       is       whether        the      National

Investigating       Agency     (NIA)        can     be      assigned          the

investigation.         In    our     view,    for     the        purpose       of

terrorist acts, complaint is already registered against

the deceased vide C.R. No.8 of 2004 and the same is

pending before the POTA Court.                    If the deceased had
entered    the       territory       of    the   State      for    committing

terrorist acts, it would be the subject matter of the

said case.           However, if such persons (deceased) are

liquidated or caused to death by other than that of

encounter or in self-defence, may be by the concerned

police     officials           or    otherwise,        the        same    would

constitute       a    separate       offence      under     IPC.         As   per

National    Investigating            Agency      Act   2002    (hereinafter

referred to as 'NIA Act' for short) the agency has the

competence       to     investigate        scheduled        offence,      which

includes vide Item No.5 but the same is limited to

Terrorist Act.          The offence as mentioned under IPC vide

Clause 8 of the Schedule may not be attracted in the

facts of the present case as per the fresh/another FIR.

If the investigation is assigned to NIA and the charge

is only of offence under IPC, more particularly other

than   those         covered    by    Clause      8    of    Schedule,        the

question    of       competence      and    jurisdiction          of   NIA    may

arise.     Similarly such questions may also arise at the

time of taking cognizance and for conducting trial by

the concerned Special Court.                If the Parliament has not
conferred       the       jurisdiction          upon      the    investigating

agency or upon the Court for trial of the offence, such

jurisdiction cannot be conferred, even by this Court

while    exercising         power       under       Article       226     of    the

Constitution         of    India       upon     a   Court       which     has    no

jurisdiction.             The     reference         may    be    made     to    the

decision of the Apex Court in the case of A.R. Antulay

v. R.S. Nayak and Anr., reported in (1998) 2 SCC, 602.

It is in view of such facts and circumstances of the

present case that we find in order to ensure a smooth

course of investigation and if required, ultimately to

see    that    the    offenders         are     booked     as    per     law    and

further the offences are taken to the logical end, it

would     be     just       and        proper       not    to     assign        the

investigation to NIA.

CBI

50. The       aforesaid         would    take       us    to    the     remaining

course available for assignment of the investigation to

CBI.

51. It    is     an       undisputed          position         that     both    the

petitioners      had       made    a    prayer      in    the    petition       for
investigation        to     be    assigned           to     CBI,   which       was

vehemently     opposed       by    the       State        Government     at    the

relevant     point    of    time.            It    is    true   that    now    the

petitioners, as well as the State Government have both

changed their stands, inasmuch as the petitioners now

pray that the investigation of the another/fresh FIR be

conducted through the same SIT, whereas the learned

Advocate     General       for    the    State          declared   before      the

Court that the State has no objection if this Court is

inclined to assign the investigation to either NIA or

CBI, in the event that it is not inclined to give the

investigation to the State Agency which is the first

choice.       He     had     further          stated        that   the     State

Government has no objection even if the investigation

with   CBI    is     monitored          by        this    Court    by    way    of

submission of progress reports, or otherwise.

52. The learned Counsel for the original petitioners

did submit that the CBI is given assignment of the

investigation, as per their experience, it would land

into   a   large     number       of     political          allegations        and

counter allegations and will not bring about the real
offenders to book.             It was also submitted that the CBI

is   busy   with       many       other     scams    and       they    have   only

residual officers, who would not seriously take up the

investigation.

53. Whereas on behalf of the Union of India, it was

submitted that the CBI is already over-burdened and it

has limited resources as a number of posts are vacant.

Therefore, it can be termed that the Union of India has

shown indirect reservations for assignment of the work

to CBI.     At this stage, we may mention that in the main

petition, an affidavit was filed on behalf of Union of

India     that     the        CBI      is    ready        to    take     up    the

investigation.              The    said     aspect    is       clear   from   the

further affidavit dated 29th September, 2009 filed on

behalf    of     the   Union        of    India     (in    Special      Criminal

Application       No.822          of      2004)      by    Mr.Mani,       Under-

Secretary, Internal Security – Class-VI of the Ministry

of Home Affairs, stating that Union of India would have

no   objection         if     the      independent         inquiry      and   the

investigation is to be carried out by CBI or otherwise

and it was so declared that the Union of India would
abide by the decision of this Court.

54. We may state that in the judgement of this Court

dated 12.8.2010 in the main petition, when this Court

had   to     consider         the      aspect         of     assigning           the

investigation to the CBI it was observed at paragraph

66, and 67 and thereafter at paragraph 69, thus:-

           “66.        We cannot countenance the submission made

           by the learned Counsel for the petitioners that

           the present case of encounter falls at par with

           the case of encounter of Sohrabuddin.                         The fact

           situation of the case in the decision of the Apex

           Court in the case of Rubabuddin Sheikh v. State of

           Gujarat, reported in 2010(2) SCC, 200, was that

           the investigation at the initial stage was allowed

           to be continued by the Apex Court with the State

           Police.      Not     only    that,    but        even    as     per   the

           investigation      made     prior     to    the       above     referred

           decision    of   the     Apex   Court,          the   encounter       was

           found to be fake and the charge-sheet was also

           submitted     upon       with   the    action           taken     report

           submitted before the Apex Court from time to time,

           but thereafter the Apex Court found that proper
investigation    was   not   being   made   by   the   State

Police, therefore, it was assigned to CBI.                No

such fact situation exists in the present case

inasmuch as there is no finding recorded, nor any

material at par with the case for encounter of

Sohrabuddin      Sheikh.       Merely       because     some

observations are made in respect of functioning of

State   Police    in   the    case    of    a    particular

investigation of a particular incident, we cannot

countenance the submission of the learned Counsel

for the petitioners that for all investigations,

in which police officers are involved, the same

cannot be undertaken by the State Police and the

case would call for transfer of investigation to

CBI.


67.If the matter is considered in light of the

earlier decision of this Court in the case of

Bharatbhai Umedsang & Anr. v. State of Gujarat

(supra), for the transfer of investigation to CBI,

as observed by this Court in the above referred

case, power can be exercised by this Court in a

very extraordinary case, where there is sufficient

material before the Court to record the substance
in    the    apprehension     of      the   complainant      or    the

victim that even the higher officer of the State,

if assigned with the investigation, has failed in

duty or would be failing in duty cast upon the

statute in the matter of investigation.                   Further,

the    satisfaction,        either     by   stepping      into     the

investigation or by transferring the investigation

to other investigating agency like CBI cannot be

recorded on a mere ipsi dixit of a complainant or

a victim, nor can it be recorded only because the

concerned investigating officer has not acted as

per     the     desire      of     the      victim     nor        such

investigation can be transferred only because the

accused apprehends that there will be any further

strict action by the investigating officer.                       The

degree of malafide or malice on the part of the

investigating       officer      to    carve   out    a   case      in

exceptional category, may be for transferring the

investigation to some other officer or otherwise,

would require a cogent material on the face of it,

which       would   leave    the      Court    to    satisfactory

material substance in the apprehension voiced by

either side, may be the complainant or the victim
or the accused.             The examination of the facts of

the    present    case,       if     considered,      there    is    no

material whatsoever on record to show any malice

or    malafide    on    the     part    of    the     investigating

officer for intentionally not properly conducting

the    investigation,          may     be    either     Ms.Parixita

Gurjar      as        the      Investigating          Officer        or

Mr.Mahapatra as further making inquiry in the said

incident.        In absence of any material on record

for any malafide or malice on the part of the

aforesaid officers, who have so far conducted the

investigation, it cannot be said that there is any

satisfactory material with the Court to accept the

contention       of     the     learned       Counsel     for       the

petitioner       representing         the    relatives        of    the

deceased that the officer acted with any malafide

or malice.       Therefore, if the case is to be tested

on the allegation of malafide or malice on the

part of Investigating Officers or any State police

officer, no case can be said to have been made out

for transferring the investigation to CBI.                          The

learned Counsel         appearing for the petitioners did

rely upon certain cases where this Court or the
other High Courts had found it proper to entrust

the   investigation          to    CBI,    since      certain    police

officers      were    involved       or    high      police   officers

were involved.          Such decision can hardly be read

as laying down the principle that in a case where

the offences alleged to have been committed by the

police officers, the other police officer, higher

police officer shall not discharge the duty for

investigation in an impartial manner.                      At the most

it can be said that in the facts and circumstances

of    those    cases,    this       Court       or   the   other     High

Courts        found     it        proper        to    transfer       the

investigation to CBI.              No parity can be drawn on

the    ground    as     sought      to     be    canvassed      by   the

learned Counsel appearing for the petitioners.


68. xxx


69.The aforesaid leads us to further find out as

to how the investigation can be carried out in a

manner,       which     instills           the       confidence      and

credibility to such investigation to do complete

justice in order to protect the fundamental rights

of the citizens of the country.”
55. The aforesaid shows that the investigation is to

be carried out in a manner which instills confidence

and credibility to such investigation, to do complete

justice in order to protect the fundamental rights of

the citizens of the country.               It is true that at that

stage, thereafter this Court had found it proper to

constitute       a   broad-based      SIT     and        the     prayer      for

assignment of the investigation to CBI was not granted

at    that   stage.       However,   in    view     of    the        facts   and

circumstances mentioned herein above and the conclusion

not to assign the investigation to the State Agency,

the     matter       is    now   required         to      be         considered

accordingly.         Further,    various      factors          recorded      and

considered       herein      above    show        that         the     SIT   so

constituted had to be geared up with various efforts

and various directions and the zeal of the officers in

functioning as Members of SIT and more particularly

that of the Central Cadre was not so satisfactory to

continue with the assignment.              As observed earlier, the

first    Chairman,        Mr.Karnal       Singh     after        some     time,

expressed his inability to continue and desired to be
relieved.     However, he did opine for assignment of the

work to an independent agency or a SIT whose Members

were from an agency other than the State Agency.                   The

second Chairman Dr. Satyapal Singh, had a very limited

role and he also expressed willingness to be relieved.

The third Chairman, Dr Ramudu, had practically never

took   over     because       of   his     physical     ailment,    or

otherwise. Substantial progress , if any, could come

out only during the tenure of the last and the fourth

Chairman    Mr.R.R.     Verma,     but   after    the   8th   –   Final

report he has also shown a desire to be relieved and

expressed a view for assignment of the investigation to

some other independent agency.

56.As observed earlier, now the material has come out

showing the situation that the investigation cannot be

assigned to the State Agency.              Further, in view of the

peculiar circumstances narrated herein above, majority

of the Members of the SIT after completing the work,

and expressing the unanimous view on the aspect of

genuineness of the encounter, have shown a desire to be

relieved.     Further    in    view   of    the   reasons     recorded
herein above we have also found it proper not to assign

the investigation to the present SIT, save and except

making use of the services of Mr.Satish Verma in future

for     investigation       by     any      other       agency.         If   the

aforesaid are ruled out, the third option was NIA,

which for the reasons recorded herein above may not be

proper     in     order     to     ensure        the    smooth     course     of

investigation and the conduct of the trial, if any, in

future.        Hence, the only agency now left is CBI, which

is a Central Agency.             At this stage we may once again

refer to the decision of the Apex Court in the case of

State     of     West     Bengal     and        Ors    Vs.     Committee     for

Protection       of     Democratic    Rights,          West    Bengal    &   Ors

reported in (2010) 3 SCC, 571 (2010 STPL (Web) 129 SC),

wherein the Apex Court, while considering the question

about the power of the constitutional Court under Article

32 or 226 for entrustment of the investigation to CBI,

recorded conclusions, the relevant of which for the present

group of matter is at para 45(ii) as under:

      “(ii) Article 21 of the Constitution in its broad perspective seeks

      to protect the        persons of their           lives     and    personal

      liberties except according           to    the procedure established by
       law.    The said Article in        its    broad application         not     only

       takes within its fold enforcement of the rights of an accused but

       also the rights of the victim. The State has a duty to enforce the

       human rights of a citizen providing for fair and impartial

       investigation against any person accused              of commission of a

       cognizable offence,which may include its own officers. In certain

       situations even a witness to the crime may seek for and shall be

       granted protection by the State.”

While recording the final analysis at para 46, the Apex

Court did observe that the Apex Court and the High Court

have    not     only   the    power     and     jurisdiction,       but     also    an

obligation             to           protect                the           fundamental

rights, guaranteed by Part III in general and under Article

21     of     the   Constitution        in      particular,        zealously       and

vigilantly. But at the same time, the further observations

by way of caution, have been made at para 47, relevant of

which reads as under:

       “Before parting with the case, we deem it necessary to emphasize that

       despite wide powers conferred by Articles 32 and 226 of the Constitution,

       while passing any order, the     Courts    must      bear    in    mind certain

       self-imposed limitations    on the exercise       of these        Constitutional

       powers. The very plenitude of the power under the said Articles requires

       great caution in its exercise. In so far as the question of issuing a direction
    to the C BI to conduct investigation in a case is concerned, although no

    inflexible guidelines can be laid down to decide whether or not such

    power should be exercised but time and again it has been reiterated that

    such an order is not to be passed as a matter of routine or merely

    because a party has levelled some allegations against the local police.

    This extra-ordinary power must be exercised sparingly, cautiously and in

    exceptional situations where it becomes necessary to provide credibility

    and instill confidence in investigations or where the incident may have

    national and international ramifications or where such an order may be

    necessary for doing complete justice and enforcing the              fundamental

    rights.     Otherwise the       C BI would be flooded with a large number

    of cases and with limited resources, may find it difficult to properly

    investigate even           serious cases         and    in   the         process

    lose its credibility and        purpose          with              unsatisfactory

    investigations.” (Emphasis supplied)

57. In   our    view,     the      facts       and     circumstances       of    the

present case as have now emerged, call for exercise of

power treating the case in the exceptional category, for

assignment of the investigation to CBI in order to provide

credibility and instill confidence in the investigation,

since the incident has by now acquired national, if not

international ramifications.               This would also be required

to do complete justice to the parties and for enforcement
of the fundamental rights.



58.We cannot countenanced the reservations shown by the

Union of India that CBI is already over-burdened or that

the posts are vacant.        If the Union of India is unable to

man the central agency, it should take effective steps

in this regard.     When the investigation is assigned by

the Court while exercising power under Article 226 of

the Constitution of India, it would be the bounden duty

of the Union of India to man CBI, if required, by

requisitioning     officers      from      other     forces    and   by

deputation for satisfactory completion of the work of

investigation of a crime registered with it in general,

and    for    completing       the       work   of     investigation

specifically assigned by the High Court under Article

226 of the Constitution of India, in particular.

59. We find it proper to record that the investigation

though now completed on the aspects of genuineness of

the encounter other aspects are yet to be investigated

regarding     causing   death       of    the   persons       concerned

(deceased) and aspects related thereto. Further, it may

also   be    required   on    the    aspect     of    allegation     of
Terrorist Act as per           complaint vide C.R. No.8/2004 of

Crime       Branch     Police       Station.           Therefore,        the

investigation is required to be taken up and handled in

a manner with all sincerity for enforcing the law to

its logical end.       Only if the investigation is taken up

in such a manner, would it bring about the result as

expected from any independent and impartial agency.

60.The     ground    contended    on        behalf   of   petitioner     of

chances of political allegations if the investigation

is assigned to CBI will not be relevant or have any

role to play to slow down or derail the investigation.

Further, if at any point of time the petitioners find

that such considerations have prevailed, nothing prevents

them     from    approaching     the        Court    concerned      or   the

constitutional Court, for appropriate directions. We leave

the said aspect open, to be considered in future if at all

required.       However, we do find it proper to observe that

the    paramount    consideration      of    any    investigating    agency

would be to book the real offenders while taking care that

innocent    persons    should    not    be     harassed.     Further      as

another/fresh FIR is yet to be filed and registered and the

investigation is yet to be taken up, in absence of any
material    for     slow     progress          or     derailing      of      the

investigation by CBI, the monitoring of such investigation,

at this stage, can be said to be premature.

61. Therefore,       we    find    that     it       would    be    just     and

proper to assign the entire investigation to CBI after

registration of a fresh/another FIR by the Chairman of

the present SIT.          It would also be required for the CBI

to constitute a team of investigation headed by an

Officer not below the rank of DIG.                           The matter is

already    delayed        long    enough        and,      therefore,       such

investigation       also     should       be        completed       within     a

reasonable time.

62. In     view     of      the    aforesaid           observations          and

discussion, the following directions:-

(a) Mr.R.R.       Verma,    Chairman       of       SIT    (present)      shall

register another/fresh FIR on the basis of his final

(8th) report to the effect that the alleged encounter

is not found to be genuine and for causing death of the

deceased    and    consequently       for       the       alleged    offences

under IPC and other provisions of the relevant laws.

(b) The aforesaid FIR shall be filed by Mr.R.R. Verma,

Chairman, SIT with the CBI, having jurisdiction for the
crimes committed in Gujarat State, within a period of

two weeks from the date of pronouncement of the order

and    the   same    shall   be   registered    by   the   concerned

officer of CBI.

(c) CBI shall thereafter take up the investigation at

the earliest and shall make an attempt to complete the

same at the earliest.

(d) CBI shall entrust the investigation to the team of

its officers headed by an officer not below the rank of

DIG.    During the course of investigation, the said team

of     investigation     shall     be    at    liberty      to   take

help/assistance of Mr.Satish Verma, IPS (1986 Batch,

Gujarat Cadre), Member of the present SIT in order to

get    clues   for    investigation     and    further     incidental

aspects of the investigation.           However, it is clarified

that the final decision shall be of the CBI as referred

to herein above.

(e) After the registration of FIR by the Chairman of

SIT, the record of the investigation made by the SIT

shall be handed over to CBI by the Chairman of SIT.

(f) After the registration of FIR and after handing
over   the    entire   record      of    SIT        to    CBI,   appropriate

report shall be submitted to this Court by the Chairman

of SIT.      It is only thereafter that the SIT shall stand

dissolved.

(g) The State Government shall spare the service of

Mr.Satish Verma as and when so desired or required by

the    CBI   for   helping    the   CBI        to    provide       clues     for

further      investigation    or        any    other          matter   related

thereto.

(h) Further investigation of C. R. No.8/2004 of Crime

Branch    Police    Station    shall      be        transferred        to   CBI,

within one month after the registration of the FIR by

CBI as directed herein above.                   The State Government

shall issue appropriate orders/notification for such

purpose.      CBI thereafter shall file appropriate report

based on conclusion of SIT as per its 8th Report in the

concerned Court, but the full details and the relevant

documents shall be produced only after investigation of

the    aforesaid    another/fresh             FIR        is   completed      and

appropriate Report is filed in the concerned Court for

another/fresh FIR.
   (i) It is also observed and directed that in the event

   during the course of investigation of the aforesaid

   another/fresh FIR or complaint vide C.R. No.8/2004 of

   Crime Branch Police Station, the CBI is required to

   take any action against any Member of SIT, the same

   shall not be taken without prior permission of this

   Court.

   (j) All     the   record,     reports     and   other   material

   supplied by the SIT be sealed properly and be kept in

   safe custody of the Registrar General of this Court.


   63. All the aspects of present application shall get

   concluded    as   per   the   aforesaid    directions    ordered

   herein above save and except that on the aspect of

   consideration of the matter for initiation of action

   under the Contempt of Courts Act separate orders shall

   be passed by this Court.



                             (Jayant Patel, J.)


                           (Smt. Abhilasha Kumari, J.)
vinod

				
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