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State vs Union on 12 August, 2010

Gujarat High Court Gujarat High Court State vs Union on 12 August, 2010 Author: Jayant Patel,&Nbsp;Honble Kumari,&Nbsp; Gujarat High Court Case Information System function loadSearchHighlight() { var chkParamC = "txtSearch" if (chkParamC == "txtSearch") { SearchHighlight(); document.searchhi.h.value = searchhi_string; if( location.hash.length > 1 ) location.hash = location.hash; } } Print CR.MA/10625/2009 111/ 111 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 10625 of 2009 In SPECIAL CRIMINAL APPLICATION No. 822 of 2004 With CRIMINAL MISC.APPLICATION No. 13526 of 2009 In CRIMINAL MISC.APPLICATION No. 10625 of 2009 With
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State vs Union on 12 August, 2010

CRIMINAL MISC.APPLICATION No. 7570 of 2010 In CRIMINAL MISC.APPLICATION No. 10625 of 2009 With SPECIAL CRIMINAL APPLICATION No. 2012 of 2009 With SPECIAL CRIMINAL APPLICATION No. 1850 of 2009 With CRIMINAL MISC.APPLICATION No. 7503 of 2010 In SPECIAL CRIMINAL APPLICATION No. 2012 of 2009 With SPECIAL CRIMINAL APPLICATION No. 822 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL HON'BLE SMT. JUSTICE ABHILASHA KUMARI
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State vs Union on 12 August, 2010

========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= STATE OF GUJARAT & 1 - Applicant(s) Versus UNION OF INDIA & 5 - Respondent(s) ========================================================= Appearance : MR

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State vs Union on 12 August, 2010

KAMAL TRIVEDI, ADVOCATE GENERAL WITH MR JM PANCHAL, SPECIAL PUBLIC PROSECUTOR WITH MS SANGEETA VISHEN, APP for state (IN ALL THE MATTERS), MR PS CHAMPANERI, ASSTT SOLICITOR GENERAL for UNION OF INDIA IN ALL CONCERNED MATTERS, MR YN RAVANI for CBI MR IH SYED FOR THE PETITIONERS OF SPECIAL CRIMINAL APPLICATION NO.822 OF 2004 AND CONCERNED CRI. MISC. APPLICATIONS MR MUKUL SINHA WITH MR AN PATEL FOR PETITIONER OF SPECIAL CRIMINAL APPLICATION NO.1850 OF 2009 AND CONCERNED APPLICATIONS MR ND NANAVATI WITH MR MITESH AMIN FOR PETITIONER OF SPECIAL CRIMINAL APPLICATION NO.2012 OF 2009 AND CONCERNED APPLICATIONS ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL and HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 12/08/2010 ORAL JUDGMENT (Per
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State vs Union on 12 August, 2010

: HONOURABLE MR.JUSTICE JAYANT PATEL) As all the matters are inter-connected and the facts are common, they are being considered by this common judgement. 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 Sources, Additional Commissioner of Police (Crime Branch), Mr.D.G. Vanzara called ACP 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 - ACP, PSI Shri P.G. Waghela, PSI Shri C.J.Goswami, PI Shri B.D. Vanar, ACP 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 - ACP, 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 ACP Shri Singal, PI Shri Tarun Barot, PI Shri RI Patel, PI Shri K.M. Waghela, PI Shri D.H. Goswami, PSI 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 PSI 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, ACP 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

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State vs Union on 12 August, 2010

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. 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 Section 3(2)(a) & (c), 13, 14 of the Foreigners' Act, Section 120B, 121, 121A, 122, 123, 307, 553, 186 of IPC, Section 27, 29 of the Arms Act and Section 3(1)(a)(b) and 3(2), 3(3), 20 and 21 of the Prevention of Terrorism Act and Section 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 @ Salim @ 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. 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 charge under Sections 4 and 5 of Explosive Substances Act and for the offence under Section 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 DCP, 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 CBI as per above referred prayer only. It

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appears that in this petition, on September 20, 2004, this Court had passed the order of issuing notice and interim relief was not granted at that stage and it was observed that it would be open to the petitioner to pray the relief after response from the respondent No.5 State of Gujarat. The matter remained as it was and thereafter was admitted on 18.12.2006 by this Court. In the meantime, the investigation by Ms.Parixita Gurjar had continued and completed. As per her investigation, it was a case of genuine encounter and the report thereafter was also submitted by her to the concerned Court. In the affidavit filed by her in the said petition, reference to the investigation is made by her at paragraph 15 of the said affidavit and she has stated the concluding part of her investigation as under:"I say that in the light of the above evidence and recoveries, it becomes quite clear that all the four were part of conspiracy of Pak-based terrorist outfit, Lashkar-e-Taiba and they were reaching Ahmedabad with the purpose of killing Shri Narendra Modi (CM/Gujarat). But for the alertness and bravery of Gujarat Police, they would have caused great havoc in the State. They were killed during a genuine police action in self-defence when they fired at the police, which was later on supported and corroborated by scientific and expert evidences." It appears that before the aforesaid matter could be finally heard, the Magisterial Inquiry under Section 176 of Cr.P.C., was conducted by Sub-Divisional Magistrate, Ahmedabad. It also appears that the Sub-Division Magistrate, during the course of the inquiry in the Inquiry Case No.13/2004, recorded the statements of the witnesses and he collected further material during the course of the inquiry. Before the conclusion of the inquiry by the Sub-Divisional Magistrate of Ahmedabad, it appears that on 10.8.2009, the Sub-Divisional Magistrate forwarded the papers to the Chief Metropolitan Magistrate for holding the inquiry by the Judicial/Metropolitan Magistrate in view of the guidance received by him vide the letter dated 26.6.2009 from the State Government that the inquiry for the custodial death should be by the Judicial Magistrate or the Metropolitan Magistrate. The aforesaid aspect is apparent from the R & P of the learned Metropolitan Magistrate, which was called for by us during the course of hearing in Inquiry No.1/2009. It further appears that on 12.8.2009, the Chief Metropolitan Magistrate, thereafter assigned the matter to the Metropolitan Magistrate, Court No.1, for holding inquiry. The proceedings of the said Metropolitan Magistrate, Court No.1 shows that he received the papers on 12.8.2009 and on 13.8.2009, summons were issued to Mrs.Shamima Kausar Mohammed, Wife of Mohammed Shamim Raza and mother of Ishrat Raza, and on 17.8.2009, the summons were issued to Gopinath Pillai, father of deceased Javed Praneshkumar Pillai and Sajeda Javed Sheikh. On 31.8.2009, Mrs.Shamima Kausar Mohammed and Arman M. Salim did not remain present and the Magistrate, in view of the statement already recorded on 31.8.2004 before the Sub-divisional Magistrate found it proper not to issue further summons for recording of the statements. Thereafter, on 3.9.2009, father of the deceased Javed alias Praneshkumar Pillai, Gopinath Pillai remained present and his statement was recorded, whereas the wife of Javed, Sajeda did not remain present, but in view of her statement already recorded before the Sub-divisional Magistrate dated 10.9.2004, the learned magistrate found it proper not to issue further summons for recording of the statement. Thereafter on 7.9.2009, the learned Magistrate has concluded the inquiry under Section 176 of Cr. P.C., and the report has been submitted to the Chief Metropolitan Magistrate. The contents of the said report to the extent found proper would be referred to and dealt with hereinafter, but the pertinent aspect is that as per the said report of the learned Magistrate it was a case of fake encounter and the concerned police officer, with a view to earn favour for further promotion and appreciation of the Hon'ble Chief Minister, had hatched the conspiracy.
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In the meantime, it appears that the Additional Director General of Police (CID and Intelligence), Gujarat State, Gandhinagar, held an inquiry and the report has been submitted to the Director General of Police by him vide letter dated 14.10.2004 and in his inquiry report, he has found that Javed and Ishrat and other two Pakistani terrorists, with a view to achieve the target of pre-planned conspiracy, had proceeded towards Ahmedabad. He found that all the four persons were involved in the terrorist activities. It is found by him that the attempt should be made to get the assistance of Central Intelligence Authority and there should be exchange of information, which may result into avoiding such incidents in future. On the aspects of genuineness of encounter, he has found that the aforesaid all the four persons have lost their lives in the police encounter. It can be said that he has concurred with the outcomes of the report of Ms.Parixita Gurjar. It appears that the petitioners of Special Criminal Application No.822 of 2004 preferred application to expedite the hearing of Special Criminal Application No.822 of 2004 and for directing the authority to supply documents. In the said application on 25.7.2008, the order was passed by this Court to place the application with the main matter. Thereafter, it appears that the main matter together with the aforesaid application came up for hearing before this Court (Coram: K.S. Jhaveri, J.) and on 13.8.2009 this Court passed the order, relevant of which reads from paragraphs 2 to 14 as under:2. On 7th August 2009 in pursuance of a suggestion to explore the possibility of handing over the investigation to higher cadres, the matter was adjourned to today. 3. Heard learned Advocates for the respective parties. Ultimately there is a consensus that a Investigating Team may be constituted for the purpose of carrying out the investigation in the aforesaid First Information Report being C.R. No.8 of 2004 registered with DCB Police Station, Ahmedabad City. 4. Mr. Trivedi, learned Advocate General has submitted a list of Police Officers including Additional Director Generals of Police, Inspector Generals of Police and Deputy Inspector Generals of Police, Superintendents of Police and Deputy Superintendent of Police. After discussion Mr. Mukul Sinha, learned Advocate for the petitioner left the matter to the Court in respect of selection of three officers from the said list. 5. Therefore, a Team of Investigation of the following three Police Officers shall be constituted for the purpose of inquiring into the aforesaid First Information Report: [1] Shri Promod Kumar, Additional Director General
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[2] Shri Mohan Jha, Inspector General [3] Shri J.K. Bhatt, Deputy Inspector General of Police Shri Promod Kumar, Additional Director General will be the Convener of the Team of Investigation. 6. After constitution of the Team, the present investigation officer shall hand over the relevant materials of the case including record of investigation done so far to the said Team on demand. 7. It will be open to the petitioner to make suggestions to the Investigating in the matter of further investigation where the petitioner feels it necessary. 8. After considering the suggestion of the petitioner it shall be open to the Investigating Team to decide the line of action of investigation. 9. The Investigating Team will be entitled to appoint subordinate officers not below the rank of Police Inspector, as it deem fit, to assist them in the investigation like recording statement of witnesses, preparing panchnama, etc. 10. The Investigating Team will consider all the aspects from every angle, which are relevant for the purpose of finding out whether the incident was a genuine encounter or a fake one. 11. It will be open to the petitioner to have the inspection of the record which pertains to the daughter of the petitioner qua the FSL report and the ballistic report about the car in which the petitioner's daughter was traveling and if such a request is made the Investigating Team will give such inspection. 12. The petitioner shall give their suggestion to the Investigating Team within two weeks from today i.e. on or before 28th August 2008 and the Investigating Team will commence the investigation and complete the same within three months thereafter i.e. On or before 30th November 2009. 13. The

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report of the Investigating Team shall be kept on record of these proceedings before this Court on the next date. 14. The matter is to be treated as part-heard and the same shall be listed for hearing on 30th November 2009." It appears that the attention of the Court was not drawn by either side that the inquiry under Section 176 of Cr.P.C., was on and partly undertaken by the Sub-divisional Magistrate, and the Sub-divisional Magistrate, vide letter dated 10.8.2009 had already forwarded the inquiry to the Chief Metropolitan Magistrate and the Chief Metropolitan Magistrate had already forwarded the papers to the Metropolitan Magistrate, Court No.1, for further inquiry under Section 176 of Cr.P.C., on 12.8.2009, nor the copy of the order was forwarded to the Metropolitan Magistrate that the order dated 13.8.2009 has been passed by this Court for constitution of SIT and the inquiry to be made by the SIT. It appears that on 7.9.2009, as referred to herein above the learned Metropolitan Magistrate has concluded the inquiry and has given report. At that stage, initially on 9th September, 2009, Criminal Misc. Application No.10624 of 2009 in Special Criminal Application No.822 of 2004 was preferred by Shri Girish Laxman Singal, who is one of the police officers, involved in the alleged incident of encounter and prayed to declare that the report dated 7.9.2009 of the learned Metropolitan Magistrate, in purported exercise of power under Section 176 of Cr.P.C., as null and void and the prayer was also made to issue appropriate directions to the Investigating Team appointed by this Court vide order dated 13.8.2009 to continue to proceed ahead with the task as directed. The prayer was also made to grant interim stay against the operation of the report dated 7.9.2009 of the learned Magistrate. Simultaneously, an application was also made being Misc. Criminal Application No.10621 of 2009 in Special Criminal Application No.822 of 2004 by Girish Laxman Singal, the very Police Officer to be impleaded as party in the proceedings of Special Criminal Application No.822 of 2004. The another pertinent aspect is that on the very day i.e. on 9.9.2009, the State of Gujarat, through Secretary, Home Department, preferred Criminal Misc. Application No.10625 of 2009 in Special Criminal Application No.822 of 2004 contending that the order passed by the learned Magistrate dated 7.9.2009 in purported exercise of the power under Section 176 of Cr.P.C., can be said amounting to over-reach the process already issued by this Court for constitution of SIT and further contending that there could not have been any question of holding inquiry under Section 176(1A) by the learned Magistrate, therefore, the report of the learned Magistrate is not only without jurisdiction, but would throttle the conduct of the proceedings pending before this Court, therefore, the prayer was made to pass the order for clarification in the matter of above referred order dated 13.8.2009 passed by this Court and the interim prayer was made to stay execution, operation and implementation of the report of the learned Magistrate dated 7.9.2009. On 9.9.2009, this Court (Coram: K.S.Jhaveri, J.) stayed the report and directed for further inquiry against the learned Magistrate and thereafter, the matter was carried before the Apex Court and thereafter, vide order dated 19.4.2010, the Apex Court has directed for final hearing before the Division Bench of this Court. Hence, the present group of petitions before us.
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It may be recorded that as on today, since Criminal Misc. Application No.10621 of 2009 and No.10624 of 2009 have already been disposed of vide order dated 9.9.2009 passed by this Court (Coram: K.S. Jhaveri, J.), we are required to decide Special Criminal Application No.822 of 2004 with Criminal Misc. Application No.10625 of 2009 only, which are for the prayer of transfer of investigation to CBI with the prayer of the State to clarify in connection with the report of the learned Magistrate in the Inquiry under Section 176 of Cr.P.C. Criminal Misc. Application No.7570 of 2010 is preferred by Gopinath Pillai, father of Javed @ Praneshkumar Pillai for being joined as party in the proceedings of Special Criminal Application No.822 of 2004 on the ground that the son of the applicant was also killed in the said alleged encounter on 15.6.2004. The aforesaid appears to be in the proceedings arising from Special Criminal Application No.822 of 2004 preferred by the mother of one of the deceased Ishrat Jahan namely; Mrs.Shamima Kausar Mohammed. The State has filed interim application through the Secretary, Home Department, being Criminal Misc. Application No.13526 of 2009 in Misc. Criminal Application No.10625 of 2009 in Special Criminal Application No.822 of 2004 for extension of time of SIT, which came to be constituted pursuant to the above referred order passed by this Court on 9.9.2009 as SIT has yet to complete the investigation and the work undertaken by it. Special Criminal Application No.1850 of 2009 is preferred by Gopinath Pillai, the father of the deceased Javed @ Praneshkumar Pillai, contending, inter alia, that his son was in the business of cosmetic and it was unbelievable that he was Fidayeen, a dread terrorist, and contended that his son has been wrongly killed, and the prayer is made to direct transfer of investigation to CBI. Hence, the prayer made in the petition is the same as made by the petitioners of Special Criminal Application No.822 of 2004. Special Criminal Application No.2012 of 2009 has been preferred by Shri Girish Laxman Singal, one of the Police Officers involved in the incident of alleged encounter, for quashing and setting aside the report dated 7.9.2009 passed by the learned Magistrate under Section 176 of Cr.P.C., by invoking the power by this Court under Article 226 of the Constitution of India read with Section 482 of Cr.P.C. Criminal Misc. Application No.7503 of 2010 has been preferred by Mrs.Shamima Kausar Mohammed, who is also petitioner of Special Criminal Application No.822 of 2004 for being impleaded as party in the proceedings of Special Criminal Application No.2012 of 2009, contending that she was required to be impleaded as party in view of the proceedings of Special Criminal Application No.822 of 2009 and the other proceedings arising therefrom, including the proceedings before the Hon'ble Supreme Court of India, but has not been joined, therefore, she may be permitted to be impleaded as party. Similar application is made by Shri Gopinath Pillai, father of Javed @ Praneshkumar Pillai, to be impleaded as party in Special Criminal Application No.2012 of 2009 preferred by Shri Girish Laxman Singal, the Police Officer for quashing and setting aside the report submitted by the learned Magistrate under Section 176 of Cr.P.C.,
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being party interested. We have heard Mr.I.H. Saiyed, learned Counsel appearing for the petitioner of Special Criminal Application No.822 of 2004, Mrs.Shamima Kauser, who is also interested party in the proceedings of other connected Criminal Misc. Application as well as Special Criminal Applications, Mr.Mukul Sinha, learned Counsel appearing with Mr.A.N.Patel, learned Counsel for Gopinath Pillai, father of Javed @ Praneshkumar Pillai, petitioners of Special Criminal Application No.1850 of 2009 and the other applications made by him being interested party in the other Criminal Misc. Applications as well as Special Criminal Applications. We have also heard Mr.Kamal Trivedi, learned Advocate General for the State of Gujarat in all the matters, with Mr.J.M. Panchal, learned Special Public Prosecutor. We have heard Mr.N.D. Nanavati, learned Sr. Counsel with Mr.Mitesh Amin, learned Counsel for Girish Laxman Singal, Police Officer concerned, petitioner of Special Criminal Application No.2012 of 2009 and in all other Criminal Misc. Applications preferred by him in the inter-connected Special Criminal Application. Mr.P.S. Champaneri, learned Assistant Solicitor General for the Union of India and Mr.Y.N. Ravani, learned Counsel for CBI. The contentions raised by the learned Counsel for the respective parties shall be dealt with hereinafter to the extent found relevant for deciding the controversy involved in the present group of petitions. The present group of petitions mainly involves, two broad aspects; one is challenge to the report of the learned Magistrate in the inquiry under Section 176 of Cr.P.C., and another is for transferring the investigation to CBI. In the incidental aspect, which may also be required to be considered to the extent for consideration of the aforesaid two broad aspects are the exercise of the power of this Court under Section 226 of the Constitution of India for entertainment of a petition, challenging the report of the Magisterial Inquiry under Section 176 of Cr.P.C., and another is for protecting the rights of the citizens under Article 21 of the Constitution of India. The third aspect, which may also be required to be considered is that whether the investigation deserves to be made in the alleged encounter if yes, by whom, so as to protect the rights of the citizens as against the powers exercised by the police officers. But at the same time, we have to keep in mind that the matter is not at the stage of investigation and we have to consider as to whether the alleged incident calls for any further investigation or not and observations to that extent only, keeping in view that the rights of either side may be of the accused or of the victims or all the concerned, may not be prejudiced, in any manner, if ultimately any trial is to take place. Incidentally, the aspects of the role of the State or the approach of the State in such matter also would be an aspect to be considered by us. It is a fact that the incident is of alleged encounter. The following aspects are undisputed; (a) The
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registration of FIR by the police officer against the alleged accused, who are stated to be terrorists; (b) The incident of alleged encounter and loss of lives by all the four persons, including Javed @ Praneshkumar Pillai and Ishrat Jahan; (c) The investigation made by police officer, Ms.Parixita Gurjar and she having found the encounter genuine and also having found the conspiracy hatched by the alleged terrorists for killing the Chief Minister of the State. In inquiry report of the learned Magistrate shows that the encounter is not genuine, but a fake one and it has been stated that the same is out of the conspiracy hatched by the police officer to earn credit for promotion and appreciation from Hon'ble Chief Minister of the State. It is in this light of the aforesaid facts situation, we are required to examine various aspects referred to herein above. As the magisterial inquiry and the report submitted by the learned Metropolitan Magistrate is one of the strong basis by the petitioner of Special Criminal Application No.822 of 2004 and No.1850 of 2009, before we proceed to examine the aspects of investigation, if any, and the further aspects relating thereto, it would be appropriate to first consider and examine the legality and validity of the report of the learned Magistrate. It was contended by Mr.Nanavati, learned Counsel for the concerned Police Officers and Mr.Kamal Trivedi, learned Advocate General that the report of the learned Magistrate under Section 176 is without jurisdiction. It was also submitted that the same could also be said as to over-reach the judicial process and the orders passed by this Court in Special Criminal Application No.822 of 2004. It was alternatively submitted that even if this Court finds that the learned Magistrate had power to hold an inquiry under Section 176(1A) of Cr.P.C., then also the finding recorded by the learned Magistrate in the inquiry are absolutely perverse, not supported by any material whatsoever and also without following the mandatory procedure, therefore, it was submitted that the report be quashed and set aside and such report cannot be at all considered by this Court for further considering the matter on the aspects of transfer of investigation to any SIT or any other agency. Whereas Mr.Syed as well as Mr.Sinha, learned Counsel appearing for respective parties, who are parents of the deceased, contended that the learned Magistrate was well within his power to inquire and to submit report, therefore, it cannot be said to be without jurisdiction. It was also submitted that the State, which is otherwise required to protect the rights of the citizen as against the police officer, should not and cannot challenge the report of the learned Magistrate, even if its own officers are to face consequences on account of such report. It
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was submitted that the finding of the learned Magistrate is with the basis and even if two views are possible, the matter would require further investigation or inquiry. It was also submitted that at the stage of the report under Section 176 Cr.P.C., by the learned Magistrate, the petition for challenging the legality and validity of the report, either by the State or by the concerned Police Officer, who are involved in the incident, cannot be maintained under Section 482 of Cr.P.C., or under Article 226 or 227 of the Constitution of India. It was submitted that when the matter is at the stage of inquiry under Section 176 Cr.P.C., and the registration of FIR is yet to take place against the concerned Police Officers, it cannot be said that any right is prejudiced or any right has accrued to the proposed accused, who are police officers to challenge the said report and thereby to stall the further process of law. In the submission of both the learned Counsel for the aforesaid parties, the report of the learned Magistrate is valid and the challenge to the said report cannot be entertained by this Court and may further be considered by this Court for the purpose of considering the matter for investigation through the other independent agency like CBI. Whereas, the learned Assistant Solicitor General for the Central Government supported the report of the learned Magistrate by contending that the same is within the jurisdiction of the learned Magistrate and cannot be termed as without jurisdiction. The role of CBI, in any case, would arise only if the inquiry or investigation is assigned to CBI by this Court, therefore, on behalf of CBI, no submissions have been made on the said aspect, about the legality and validity of the report of the learned Magistrate. Section 176 of Cr.P.C., prior to the amendment of 2005 reads as under :Section 176 of the Code of Criminal Procedure, 1973 (prior to amendment made in 2005) : When any person dies while in the custody of the police or when the case is of the nature referred to in clause (i) or clause (ii) of sub-section (3) of Section 174], the nearest Magistrate empowered to hold inquests shall, and in any other case mentioned in sub-section (1) of Section 174, any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police officer, and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence. The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in any manner hereinafter prescribed according to the circumstances of the case. Whenever such Magistrate considers it expedient to make an examination of the dead body of any person who has been already interred, in order to discover the cause of his death, the Magistrate may cause the body to be
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disinterred and examined. Where an inquiry is to be held under this section, the Magistrate shall, wherever practicable, inform the relatives of the deceased whose names and addresses are known, and shall allow them to remain present at the inquiry. Section 176, after the amendment w.e.f. 23.6.2006 reads as under :Section 176 of the Code of Criminal Procedure, 1973 (after to amendment made in 2005 w.e.f. 23.6.2006):[***] When the case is of the nature referred to in clause (i) or clause (ii) of sub-section (3) of Section 174], the nearest Magistrate empowered to hold inquests shall, and in any other case mentioned in sub-section (1) of Section 174, any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police officer, and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence. [(1A) Where, (a) any person dies or disappears' or (b) rape is alleged to have been committed on any woman, while such person or woman is in the custody of the police or in any other custody authorised by the Magistrate or the Court, under this Code in addition to the inquiry or investigation held by the police, an inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction the offence has been committed.] The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in any manner hereinafter prescribed according to the circumstances of the case. Whenever such Magistrate considers it expedient to make an examination of the dead body of any person who has been already interred, in order to discover the cause of his death, the Magistrate may cause the body to be disinterred and examined. Where an inquiry is

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to be held under this section, the Magistrate shall, wherever practicable, inform the relatives of the deceased whose names and addresses are known, and shall allow them to remain present at the inquiry. The Judicial Magistrate or the Metropolitan magistrate or Executive Magistrate or police officer holding an inquiry or investigation, as the case may be, under sub-section (1A) shall, within twenty-four hours of the death of a person, forward the body with a view to its being examined to the nearest Civil Surgeon or other qualified medical man appointed in this behalf by the State Government, unless it is not possible to do so for reasons to be recorded in writing.] Explanation. In this section, the expression 'relative' means parents, children, brothers, sisters and spouse." The aforesaid shows that prior to 23.6.2006, the magisterial inquiry in all cases, for the cause of death was to be held by the Magistrate empowered to hold inquest, which, in the State of Gujarat, is Sub-divisional Magistrate/Executive Magistrate concerned of the area. Whereas, after 23.6.2006, in a case where the death is in the custody of the police, or in any other custody authorised by the Magistrate or the Court, the inquiry is to be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose jurisdiction the offence has been committed. Further Sub-section (5) of Section 176, after amendment on 23.6.2006, shows that the Magistrate concerned will have the power to forward the body of the deceased to Civil Surgeon or other qualified Medical man. It is true that the date of incident is 15.6.2004. Therefore, the aspect of applicability of the amended provisions of the Act may also be required to be considered. The learned Counsel for the police officer and the State did contend that as the incident is during the period prior to the Amendment, Metropolitan Magistrate had no authority to hold the inquiry and the inquiry, if any, could be held by Sub-divisional Magistrate. It was also submitted that in a case of encounter, even otherwise also it cannot be said that the person has expired in the police custody, therefore, even if considered that the amendment applies, the requirement of Section 176(1A) were not satisfied, therefore, also the learned Magistrate could be said as had no jurisdiction. Holding of an inquiry, in our view, can be said as provision of law regulating the procedure for the inquiry in the case of custodial death. It is by now well settled that when any procedural law is amended by the Legislature or Parliament, it will have a retro-active character and to be applied retrospectively namely; that it would apply to all pending cases covered by the said provision. The reference can also be made to the decision of the Apex Court in the case of 2006 (1) SCC 141 Sudhir G. Angur & Ors. Vs. Sanjeev and Ors., reported in (2006) 1 SCC, 141 and more particularly the observations made by the Apex Court at paragraph 11 of the said decision
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on page 147 and 148. Therefore, it is not possible to accept the contention of the learned Counsel Mr.Nanavati as well as Mr.Trivedi, learned Advocate General that merely because the incident is of 15.6.2004, the amended provisions of Cr.P.C., under Section 176(1A) would not apply. We are inclined to take the aforesaid view, in view of two further peculiar circumstances; one is that the inquiry before the Sub-divisional Magistrate prior to 23.6.2006 was not completed and had the inquiry been completed prior to the amendment the matter would have been different. Second is that as per the opinion of the State Government itself, vide above referred letter addressed by the Sub-divisional magistrate to the Chief Judicial Magistrate, pending inquiry in the case of custodial death were to be assigned to the Judicial Magistrate or the Metropolitan Magistrate of the area concerned. On the aspects of no applicability to the provisions of Section 176(1A), in the case of a death in police encounter , we find that such contention raised by Mr.Nanavati as well as learned Advocate General Mr.Kamal Trivedi is meritless inasmuch as the interpretation of the word 'custody' as sought to be canvassed, if restricted to only actual physical custody, after arrest, it would result into frustration of the intention of the Parliament for holding of judicial inquiry by the Magistrate concerned. Even otherwise also the word 'custody' is not defined under Code of Criminal Procedure. Therefore, custody is to be understood in normal parlance as against the police powers. Literal meaning of the word 'custody' would mean to get control of the physique or the movement of the person concerned. Such control can be by putting the person behind bars and it can only be by controlling the physical movement of the person concerned. In the case of Niranjan Singh and Anr. Vs. Prabhakar Rajaram Kharote and Ors., reported in AIR 1980 SC 785, the Apex Court at paragraph 7, while interpreting the word 'custody' within the meaning of Section 437 of Cr.P.C., observed the relevant of which reads as under :"7. ... This word is of elastic semantics but it score meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose." Further, it was observed at paragraph 9 as under:"9. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be said to be in judicial custody when he surrenders before the Court and submits to its direction. ..." The present case is a case of police encounter, where the police officers in exercise of their powers wanted to effect the arrest and at that stage when they wanted to intercept the car and catch hold of the persons in order to apply force, may be by way of self-defence, the incident had happened. Therefore, it can be said that the
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police while controlling the physical movement of the alleged accused have exercised their police power and such being the situation, it can be said that the provisions of death in the custody for the purpose of holding inquiry can be made applicable. The reference may also be made to the decision of Division Bench of the Allahabad High Court in the case of Hari Krishna Maheshwari @ Hari Maheshwari Vs. State of U.P., reported in 1997(1) Crimes 432 and the observations made at paragraph 18, the relevant of which reads as under :"Accordingly, we are of the view that the opening words of Section 176(1) of the Code of Criminal Procedure, namely; "When any person dies while in the custody of the police" should be interpreted also to mean that "Whenever the police claims to have killed any person in encounter". This interpretation of Section 176 of the Code of Criminal Procedure will ensure protection of Human Rights in all cases of death where the police claims to have killed the person in encounter and in such cases, the Magistrate will be under an obligation to inform the relatives of such person. This also will safeguard any clandestine effort on the part of the police to kill a person in its custody and then claim that the person has been killed in an encounter." The reference may also be made to another decision of the decision of the Apex Court in the case of State of A.P. v. Gangula Satya Murthy, reported in (1997) 1 SCC, 272 and more particularly the observations made at paragraph 19, relevant of which reads as under :"19. The other reasoning based on Section 26 of the Evidence Act is also fallacious. It is true any confessions made to a police officer is inadmissible under Section 25 of the Act and that ban is further stretched through Section 26 to the confession made to any other person also if the confessor was then in police custody. Such 'custody' need not necessarily be post-arrest custody. The word 'custody' used in Section 26 is to be understood in a pragmatic sense. If any accused is within the ken of surveillance of the police during which his movements are restricted then it can be regarded as custodial surveillance for the purpose of the section. If he makes any confession during that period to any person be he not a police officer, such confession would also be hedged within the banned contours outlined in Section 26 of the Evidence Act." Therefore, it is not possible for us to accept the contention that the report of the learned Magistrate is without jurisdiction or competence, since the same is that the incident prior to 23.6.2006 or that since there was no formal arrest, they were not in the police custody, even if the amended provisions were to apply to the incident prior to 23.6.2006. Much grievance has been raised by the learned Counsel for the police officer Shri N.D. Nanavati and Shri Kamal Trivedi, Advocate General for the State on the aspects of findings recorded by the learned Magistrate on the
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surmises and conjunctures and not supported by any valid material for such purpose. Whereas, the learned Counsel appearing for the relatives of the deceased supported the report of the learned Magistrate under Section 176 of Cr.P.C. In order to trace the material in support of the findings we had called for the record and proceedings of the learned Magistrate. It is true that on the aspects of any alleged conspiracy to earn credit and thereby to have promotion in the service and to have appreciation of the Hon'ble Chief Minister by the police officer, the findings recorded by the learned Magistrate are absolutely without there being any material for such purpose. Further it was not for the learned Judicial Magistrate to opine for the consequential benefits as ought to have been or could have been derived by the concerned Police Officers. Even if it is considered that such aspects had any relevance for the purpose of tracing the motive being one of the causes of death, it must be supported by any evidence or material on record. There is no material as observed earlier in the file of the learned Magistrate to record the findings in the inquiry as stated in the report. Therefore, to that extent such findings can be said as without there being any material whatsoever. 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, Indica Car could not be said to be without there being no existence Of such probabilities, nor can it be said without there being absolutely no material whatsoever for such purpose. We may record the word of caution that our aforesaid observations are limited to the extent of considering the report of the learned magistrate only for the purpose of examining the controversy as to whether the further investigation is called for or not and it will neither be considered as a prima facie observations, nor shall it be considered as a finding by this Court, in any manner whatsoever, which may prejudice the rights of either party to the proceedings at the further investigation, if it is so ordered or at the trial, as the case may be. But at the same time, it does appear to us that the learned Magistrate has shown undue haste in concluding the inquiry without taking assistance of the experts, which was as such required in view of the complicated issues as were to be considered by him for the purpose of tracing the truth as to whether the probabilities, which he has considered is near to the truth or not or same is supported by other experts or not. It is hardly required to be stated that the learned Magistrate had the power as if the inquiry could be held by him in connection with any offence committed within his jurisdiction and the span of such inquiry could be extended to as if the inquiry under Section 202 of Cr.P.C., which pertains to the inquiry when a complaint is received for any offence, but the learned Magistrate proposed to hold the inquiry by just issue of process. It does appear that span of inquiry and the scope and ambit of the power of the learned Magistrate, which appears to us as has not been fully considered by the learned Magistrate and the learned Magistrate, upon having acted on the statements as were recorded by the Sub-divisional Magistrate, has proceeded to examine the matter and has recorded the findings. Further, the original record shows that all proceedings of Rjokam/daily sheets are written on plain paper sheets and not printed papers used for writing the Court proceedings. Further, the whole inquiry report of more than 200 pages is hand-written. Hence, as observed earlier, such an approach could be said as an undue haste shown by the learned Magistrate in concluding the inquiry, which, to us, remains unexplained. But if the finding in the report is supported by the material its efficiency would not be lost, nor any finding
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can be considered in absence of any material for such purpose. The aforesaid takes us to examine the value to be attached to the report of the learned Magistrate in a case where the cause of death found by the learned Magistrate other than what is reported to him by any informant or the police, as the case may be. In a case where the cause of death found by the learned Magistrate is not in conformity with the information supplied to him and he finds that the cause of death is otherwise, may be on account of the fake encounter or the police officers have exceeded the exercise of the power or that any evidence is suppressed and is wrongly shown as an accidental death, then in that case, the report of the Magistrate could be said as having a recommendatory value to the State or the victim, as the case may be, for further putting law into motion. May be that the victim may file complaint or the State, through its officers, in order to see that the law is further put into motion may get the complaint registered against the alleged offender on account of the report of the learned Magistrate. At that stage, once the FIR is registered, the investigation is to be independently conducted by the investigating officer in an impartial manner and any statement made either before the police in the inquiry of accidental death or before the learned Magistrate in the inquiry under Section 176, may hold good only to the extent of getting clue for the further investigation and for the information by the investigating officer and it would be for the investigating officer to further examine the matter and to apply his mind independently. Even after the investigation is concluded and the trial is to take place, at that stage also, any statement recorded before the learned Magistrate in the inquiry would not be treated as an evidence for such trial, save and extent for the purpose of impeaching the credibility of the witnesses as per the Evidence Act, if the contingencies so arise. Reference may be made to the decision of the Apex Court in the case of Gauri Shanker Sharma v. State of U.P., reported in 1990 (Suppl.) SCC, 656, and more particularly the observations made by the Apex Court at paragraph 6, the relevant of which reads as under :"6. ... However, the evidence of PW 6 was challenged on the ground that he had in his statement before M.M. Swarup, Executive Magistrate, affirmed the defence of AI that the deceased was apprehended from near a culvert in village Harma-Harora on 20.10.1971. The learned trial Judge negatived this contention as the certified copy of the statement said to have been made to M.M. Swarup in an enquiry under Section 176 of the Code of Criminal Procedure was inadmissible in evidence since the said enquiry could not be equated to a judicial proceedings and was, therefore, inadmissible in evidence. He was of the view that the same could not be admitted in evidence under Section 90 of the Evidence Act. In this view the proper course was to call for the original statement, confront the witness with the contradictory part and on proof use it as evidence to discredit the witness. We agree with the learned trial judge that the contents of a certified copy of the statement recorded under Section 176 of the Code would not be admissible in evidence unless the contradiction is proved by putting it to the witness in cross-examination and the maker has had an opportunity to admit or deny it. In our view it has to be proved like any other previous statement. ..." (Emphasis supplied) It is in this light of the aforesaid evidentiary value we have to further examine the aspects for maintainability of petition preferred by the Police Officer for quashing and setting aside the report of the learned Magistrate and also the contention raised by the State for clarification in connection with the report of the learned Magistrate. If the report is to hold only a recommendatory value by way of fact finding inquiry, it is not possible for us to accept the contention of the learned Counsel appearing for the police officer, Shri N.D. Nanavati that the concerned person, who is referred to in the report under Section 176 of the Cr.P.C. will have right to challenge
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such report. At the same time, it is not possible for us to accept the contention of the learned Counsel for the relatives of the deceased that the functioning by the learned Magistrate or the report submitted by him is beyond the scope for exercise of the power by this Court under Article 226 of the Constitution. It is hardly required to be stated that the power of this Court under Article 226 of the Constitution is wide enough to cover the functioning of a statutory authority may be on administrative side or may be on judicial side. Even if it is considered for the sake of consideration that the report of the learned Magistrate is like an administrative decision under Section 176 of Cr.P.C., then also it is by now well settled any administrative act of any State or its agency is subject to judicial review under Article 226 of the Constitution of India. If the functioning of the learned Magistrate, if considered for the purpose of holding inquiry, though the ultimate outcome at the inquiry may have only recommendatory value and no prejudice is caused to the rights of any party who are directly or indirectly connected therewith, then also it would not be outside the scope of Article 226 of the Constitution of India. It is also by now well settled that functioning by any authority in the matter of holding inquiry, may be either affecting adversely any party or otherwise would also be subject to judicial review under Article 226 of the Constitution. But at the same time, the jurisdiction of this Court under Article 226 is discretionary and there are self-imposed restrictions. Further, unless it is satisfactorily demonstrated before the Court that any prejudice is caused to the party, which invokes the jurisdiction before this Court under Article 226 of the Constitution, this Court may decline the entertainment of the dispute or may decline the exercise of the power under Article 226 of the Constitution of India, either by applying the theory of useless formality or no useful purpose is to be served or by declining the exercise of the discretionary jurisdiction, may be on the ground that no prejudice is caused by an outcome of the report or may be on the ground that further process of putting the law into motion is sought to be throttled at the initiation or inception notwithstanding the availability of all rights and defence to the proposed accused, if the complaint is registered for the offence based on such report. It is also by now well settled that if the complaint is filed before the Magistrate under Section 201 of Cr. P.C., and the Magistrate decides to hold the inquiry and the findings at the inquiry is recorded, but until the process is issued to the accused, the proposed accused has no say in the matter, nor has he any right to challenge or interfere in the proceedings at the stage of holding the inquiry at the stage of inquiry under Section 202 of Cr.P.C. Therefore, keeping in view the said aspect, the maintainability is to be considered. We find that keeping in view the aforesaid facts and circumstances, it would not be a case to exercise the power under Article 226 of the Constitution of India at the instance of the petitioner, who is a police officer and thereby to quash and set aside the report of the learned Magistrate under Section 176 of Cr.P.C.. However, so far as certain observations made by us to the report of the learned Magistrate is concerned, we may further observe that the same are only to the extent of further considering the case as to whether the investigation is to be made for finding out the genuineness of the encounter and the assignment of the investigation to any agency or not as prayed by the relatives of the victims while exercising the power under Article 226 of the Constitution of India, more particularly because of the stand of the State Government for not accepting the report and taking up of the stand that the State Government has a different view against the report of the learned Magistrate. It is under these circumstances, we have examined the report of the learned Magistrate for further putting the law into motion while exercising power under Article 226 of the Constitution of India, as the prayer of the petitioners, who are relatives of the victim is to further investigate into the complaint by transferring the investigation to other agency. The observations made by us may not be understood to mean that we have exercised the power under Article 226 of the Constitution at the instance of the police officers, who are referred to in the report of the learned Magistrate or even at the instance of the State, which has also challenged the report of the learned Magistrate, but such observations are for examination of the report for considering the case of petitioners, who are parents of the deceased for appropriate directions in the matter after considering the stand of the State Government. At this stage, we also find it proper to observe that in a matter where the learned Magistrate has reported in the inquiry under Section 176 of Cr.P.C., in the case of custodial death or an encounter of such type, it would hardly be fair on the part of the State to side with any persons, who are referred to or found to have been involved in the incident. The role of the State is to exercise and supplement its sovereign power. The
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substratum of such sovereign power could be maintained only if the State takes all care to see that the offenders are booked and the innocent persons are not harassed. The State, in any action against any offender, must be the pioneer in putting the law into motion and the State has the domain of the prosecution against the accused in the prevailing system of administration of justice. The role of the State being a welfare State is expected to be of an independent and neutral role, without siding with either parties, may be its own officer or the citizen in a case when the matter pertains to commission of offence. The attempt on the part of the State would be to explore the truth and to supplement the action in furtherance of tracing or exploring the truth. The welfare State cannot be expected to throttle any process, including that of by initiation of any action in the Court of law, which may have adverse effect in putting the law into motion. The reason being that it is for the State to ensure the enforcement of law. In a democratic welfare State the role of the State has to be in furtherance to enforcement of the law and not for creation of any hurdle, obstacle or hindrance, which may result into throttling any process of smooth enforcement of law. But thereby it cannot be said that the State will have no remedy whatsoever, if it finds that the report of the learned Magistrate is beyond jurisdiction or unwarranted. As observed earlier, if the report of the learned Magistrate under Section 176 is to be treated as having recommendatory value, it is for the State to normally accept the report and to decide whether any further action is called for or not. If there are extraordinary very strong and valid reasons for non-enforcement of the report of the learned Magistrate, it may do so, but such decision of the State action would be subject to judicial review of this Court under Article 226 of the Constitution of India. If, while taking such decision, there is dereliction or abdication by the State has itself from its statutory duty cast upon it or has failed to maintain the principles of welfare State for enforcing the rule of law, the Constitutional Court under Article 226 of the Constitution would be well within its power to issue appropriate mandamus to the State and the parties affected thereby may have recourse to law as permissible. All such observations lead us to record one conclusion that the State is expected to function in an impartial manner, in cases where the question is for enforcement of law in connection with the alleged offence or in connection with the fact finding inquiry to be held by the competent authority concerned. If the action of the State is tested in that light, it does appear to us that the State could have avoided the course adopted by it for challenging the report of the learned Magistrate under Section 176 of Cr.P.C., by invoking the powers of this Court under Code of Criminal Procedure or under Article 226 of the Constitution of India, as the case may be, but it appears that as this Court, at the relevant point of time, had also directed for investigation by SIT and the process was on, the action for clarification could not be said to be without any justification whatsoever but we cannot countenance the approach of the State for challenging the report of the learned Magistrate on the other grounds as stated in the application made by the State and of making submissions, which, if accepted would result into throttling the process for enforcement of law. Under these circumstances, we find that when this Court is to finally consider and rule on the aspects of whether further investigation is to be made or not and if yes by whom, including the present SIT or otherwise, no useful purpose would be served in further recording the conclusion on the aspects of the role of the State, but suffice it to state that the challenge made by the State to the report of the learned Magistrate under Section 176 of Cr.P.C., cannot be sustained at the instance of the State. The aforesaid takes us to further examine the aspects of the substantial controversy to be considered for further inquiry or investigation in the alleged incident and if yes, by whom ? As recorded by us earlier, as per the report of the investigation made by the Police Officer, Ms.Parixita Gurjar, the incident of encounter was found to be genuine. It has also transpired in her investigation that all the four persons were terrorists, out of which, two were Pakistanis and members of Lashkar-e-Taiba and the other two
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persons namely; Javed @ Praneshkumar Pillai and Ishrat Jahan were Indian nationals, but associated with the activities of Lashkar-e-Taiba and all the four persons had hatched conspiracy of killing the Chief Minister of Gujarat State and for such purpose, they had entered Ahmedabad as per the accusation made in the FIR. As per the investigation made by Special Additional DIG (CID and Intelligence), there was no further detailed investigation, but he has mainly relied upon the statements recorded before the Investigation Officer, Ms.Gurjar and on the aspects of genuineness of the encounter, he has found that all the four persons have lost their lives in the police encounter. In substance, as observed earlier, he has concurred with the report of Ms.Gurjar, Investigating Officer. In an inquiry under Section 176 of Cr.P.C., it does appear that the statements were recorded of all the persons, except Mr.Gopinath Pillai, before the Sub-divisional Magistrate and even for Mr.Gopinath Pillai, the statement was earlier recorded, but in response to the summons issued by the learned Metropolitan Magistrate, statement was given by him. The learned Metropolitan Magistrate has, for all the purpose, had no material, except the material as was submitted before the Sub-divisional Magistrate and the statement of Mr.Gopinath Pillai, which is said to have been recorded before him. The findings of the learned Magistrate in the report on certain aspects, if considered, it appears that he has been guided by the presence of rigor mortis well-developed on the entire bodies of the deceased, therefore, he has drawn the inference that the death of Javed @ Praneshkumar Pillai and Ishrat Jahan could be within 12 to 24 hours prior to the postmortem i.e. between 3.40 p.m. of the 14th day of June 2004 and 3.40 a.m. of the 15th day of June, 2004. The second aspect considered by the learned Magistrate is on the exist and entry wounds of the bullet injuries sustained by both the deceased, therefore, he has drawn inference that the bullets must have been fired from close range, as the exit wounds in the body caused by the bullets were larger in size than the entry wounds, the bullets were not fired from a distant place, as stated in the encounter report. The learned Magistrate, in view of the absence of remains of exploded ammunition in the form of nitrite and lead from the samples of the hand wash of both the deceased, as per the FSL Report, has drawn inference that the deceased did not operate any weapon with either of their hands. As per the postmortem report of both the deceased, bullets were found near the body of the deceased and the FSL - Ballistic Report shows that such bullets are common for both AK 47 and AK 56 Rifle, but the learned Magistrate has found that the firing has been made from AK 56 Rifle and not Government AK 47 Rifle, therefore, he has drawn the inference of non-genuineness of the encounter, but such inference can be said to be doubtful. Even on the aspects of undigested food particles found from the bodies of the deceased, the learned Magistrate, for the purpose of drawing inference, has taken the estimated time for consumption of food by both the deceased and has drawn the inference that on 14.6.2004 both the deceased must have died and such inference is also doubtful. It is true that on the aspects of operative activities of the deceased as terrorists, the learned Magistrate has recorded the findings and drawn the inference, which, as such, is not supported by any record of the investigation made by the Sub-divisional Magistrate prior to the papers received by him, nor any material produced before him and further his finding against the police officers for earning credit and to have promotion by getting appreciation of the Hon'ble Chief Minister, by showing the incident of encounter of terrorists also appears to be, not at all supported by any material whatsoever. Therefore, if the aforesaid findings recorded by the learned Metropolitan Magistrate are considered, mainly on the aspects of approximate time of death and on the aspect of bullets fired from the weapon at a close range, and the finding that the deceased had not fired any weapon, even if not given full weightage, as sought to be described by the learned Magistrate and are treated as having a recommendatory value, then also it can be said as a reasonable probability expressed by the learned Metropolitan Magistrate in the Inquiry under Section 176 of Cr.P.C., on the basis of the materials as referred to hereinabove. The
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aforesaid is coupled with two relevant circumstances emerging from the report of the SIT constituted pursuant to the earlier order passed by this Court that the weapons, which were used by the Police Officers, who fired at the deceased, had not been deposited with the SIT and the same had not been sent for ballistic opinion to the Forensic Science Laboratory, meaning thereby, the weapons were not recovered by the Investigating Officer for getting the ballistic opinion in the course of the investigation when was made either by Ms.Parixita Gurjar, or by Shri Mahapatra, Additional DGP. Further in the very report of SIT, it has been stated that the telephone/mobile call details of the concerned Police Officers are yet to be collected, which means that the call details of the Police officers at the relevant point of time were not collected by the Investigating Officer, who undertook the investigation. Both the aforesaid aspects go to show that the incident of encounter is further required to be investigated. The another aspect, which may have the bearing to the investigation is that at the time when the interim order was passed by this Court for constitution of SIT, the State had also agreed for further investigation. The aforesaid circumstances can be said as valid basis for further investigation to find out as to whether the encounter was genuine or the deceased were killed prior to the alleged encounter. Attempt was made by Mr.Trivedi, learned Advocate General as well as Mr.Nanavati, learned Counsel for the concerned Police Officer to contend that when the police officers in discharge of their duties, with a view to curb terrorist activities and thereby for the safety of the State, have exercised the power, the champions of human rights are making hue and cry by pointing the finger at the police officers and thereby creating obstacles in discharge of their duties. It was submitted that as per the investigation made so far by the Investigating Officer of the rank of Assistant Commissioner of Police and the further inquiry made by the Additional DGP, all the four deceased were rank terrorists and they were involved in terrorist activities, therefore, this Court, keeping in view the said aspects, may not give much consideration when a complaint is brought by the relative just by saying that the encounter was a fake one and there was no genuine encounter by projecting them as law-abiding citizens or not involved in the terrorist activities. It is true that the investigation so far did reveal for the alleged association of both the deceased namely; Javed @ Praneshkumar Pillai and Ishrat Jahan, but if the genuineness of the encounter is at doubt, this Court cannot proceed on the basis that since the deceased were associated with the terrorist activities, even if their close relatives so desire by invoking the power of this Court, the same should be discarded on a mere ground that the persons concerned were associated with the so-called terrorist activities. At this stage, we may profitably advert to the views expressed by the Apex Court in the case of People's Union for Civil Liberties Vs. Union of India and Anr., reported at (1997) 3 SCC 433 and more particularly the observations by the Apex Court at paragraph 6, the relevant of which reads as under :"6. ...It is true that Manipur is a disturbed area, that there appears to be a good amount of terrorist activity affecting public order and, may be, even security of that State. It may also be that under these conditions, certain additional and unusual powers have to be given to the police to deal with terrorism. It may be necessary to fight terrorism with a strong had which may involve vesting of good amount of discretion in the police officers or other paramilitary forces engaged in fighting them. If the version of the police with respect to the incident in question were true, there could have been no question of any interference by the court. Nobody can say that the police should wait till they are shot at. It is for the court to say how the terrorists should be fought. We cannot be blind to the fact that even after fifty years of our independence, our territorial integrity is not fully secure. There are several types of separatist and terrorist activities in several parts of the country. They
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have to be subdued. Whether they should be fought politically or be dealt with by force is a matter of policy for the Government to determine. The courts may not be the appropriate forum to determine those questions. All this is beyond dispute. But the present case appears to be one where two persons along with some others were just seized from a hut, taken to a long distance away in a truck and shot there. This type of activity cannot certainly be countenanced by the courts even in the case of disturbed areas. If the police had information that terrorists were gathering at a particular place and if they had surprised them and arrested them, the proper course for them was to deal with them according to law. "Administrative liquidation" was certainly not a course open to them." In the very judgement, the Apex Court referred the decision of the Division Bench of the Andhra Pradesh High Court in the case of Challa Ramkonda Reddy v. State of A.P., wherein it has been observed as under:"In our opinion, the right to life and liberty guaranteed by Article 21 is so fundamental and basic that no compromise is possible with this right. It is 'non-negotiable'. ... The State has no right to take any action which will deprive a citizen of the enjoyment of this basic right except in accordance with a law which is reasonable, fair and just." Therefore, we cannot countenance the contention that no investigation is called for even if the genuineness of the encounter is at doubt. It is hardly required to be stated that if the deceased have lost their lives in the encounter and the police officers were well within their power, it could be said to be deprivation of life and liberty through a process established by law, but if the truth ultimately found is otherwise, it would call for further action in accordance with law. Under these circumstances, we find that the present case is not such where no investigation is called for on the aspects of genuineness of the encounter. The next aspect is if the investigation is to be made on the aspect of genuineness of encounter, such investigation by whom? The contention of the learned Counsel for the petitioners - relatives of the deceased is that keeping in view the fact that high-ranked police officials are involved, the investigation is required to be given to CBI, which is a central agency. The learned Counsel appearing for the petitioners also contended that the investigation, if made through the present SIT, there would not be any credibility, because other high-ranked police officers of the State are involved in the incident. It was also submitted that the approach of the State Government in the present litigation is to side with the police officers, who are involved in the incident and the said aspect is apparent from the litigation initiated by the State Government against the report of the learned Magistrate under Section 176 of Cr. P.C. and as on today, the contention of the State Government is to oppose and challenge the report of the learned Magistrate under Section 176 of Cr. P.C. It was, therefore, submitted that in view of such circumstances, if the present SIT is continued, they will not be able to properly conduct the investigation to find out the truth, therefore, with a view to provide more credibility and to instill confidence the investigation
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deserves to be assigned to CBI. Whereas, on behalf of the police officer, it was submitted by Mr.Nanavati, learned Counsel that he has no objection if the investigation is conducted by CBI or any other agency, including SIT already constituted by this Court. Whereas, on behalf of the State, it has been submitted by Mr.Kamal Trivedi, learned Advocate General that the SIT already constituted can further investigate into the matter. He also submitted that the approach of the Central Government by filing earlier affidavit, was for not to take up the investigation and by subsequent affidavit, has shown readiness to investigate into the incident lacks bonafide. It was submitted that there have been more serious and heinous offences having national and international ramification in the recent past, which are investigated by the police officers of the respective States and he elaborated the example as that of Parliament attack case, Akshardam attack case, serial bomb blasts at Mumbai, etc. It was submitted that all such offences, though had national and international ramification, were registered and successfully investigated by the police departments of the respective States. He contended that there are no extraordinary circumstances shown by the petitioners, nor such circumstances, in fact, exit, which justify the deviation from the well-developed federal structure of crime investigation. He also contended that there are no allegations leveled against the SIT constituted by this Court with the consent of all the parties. It was submitted that when the said team is further investigating into the alleged offences, it provides credibility and instill confidence, which would also be the aspects, which this Court may consider while exercising extraordinary jurisdiction. Therefore, it was submitted that the prayer for transferring the investigation to CBI or for incorporation of any officer(s) of CBI or any other Central Agency in SIT is not acceptable to the State Government. He also contended that if investigation is assigned to CBI or any officer of CBI or Central Agency inducted into SIT, it will demoralize the Police Officers of the State Government or, at least, other members of the SIT, therefore, it was submitted that this Court may continue with the investigation through the SIT, which is already constituted and in any case, may not be assigned to CBI as prayed by the relatives of the deceased - concerned petitioners. On the aspects of assignment of the investigation to CBI in a case where one of the alleged accused was sitting Member of Legislative Assembly (MLA), this Court (Coram: Jayant Patel, J. - one of us) had an occasion to consider the said aspect in the case of Bharatbhai Umedsang & Anr. v. State of Gujarat, in Special Criminal Application No.1855 of 2008 and allied matters, decided on 13.4.2010. This Court, at paragraphs 41 and 42, observed as under :"41. In the case of State of West Bengal and Ors Vs. Committee for Protection of Democratic Rights, West Bengal & Ors reported at 2010 STPL (Web) 129 SC, while considering the question about the power of the constitutional Court under Article 32 or 226 for entrustment of the investigation to CBI, the Constitutional Bench of the Apex Court 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
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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."(Emphasis supplied) 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 CBI 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 CBI 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) 42. Under these circumstances, it can be said that it is by now well settled that this Court under Article 226 of the Constitution has power to protect the rights of the citizen and to enforce the duty upon the investigating agency to ensure that there is fair and impartial investigation against any person accused of commission of cognizable offence which may also include its own officer. While exercising the power, the facts of each case is to be considered for ensuring that there is fair and impartial investigation. Further, such power are to be exercised not in routine but by way of exceptional circumstance and the reason being that in normal circumstance, as referred to hereinabove, by extracting the decision of the Apex Court in the case of Gangadhar Janardhan Mhatre(supra), the matter is to be left to investigating agency and to the concerned Magistrate for overseeing the investigation or getting or taking cognizance of the offence or otherwise. It is only in exceptional circumstance, this Court may be required to step into the investigation to streamline the investigation for ensuring the fairness and impartiality in the investigation so as to instill confidence into the investigation and to enforce law and it is only in very 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 highest 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 of any cognizable offence, this Court may be required to exercise the power for entrustment of the investigation to altogether a different investigating agency like CBI in the present case. Be it noted that such satisfaction either by stepping into the investigation or for transferring the investigation to some other investigating agency like CBI, cannot be recorded on a mere ipsi dixit of a complainant or a victim nor can 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 further any 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 the exceptional category may be for
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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. If such an approach is not made by the Courts in overseeing the investigation, it would leave room for the complainant to compel the investigating officer to book the accused, even if the crime is not found to have been committed and would equally leave room for the accused to get scot-free even if the crime is committed. Creation of such a situation would take away the discretion to be exercised by the investigating officer for conducting the investigation in a fair and impartial manner, therefore, while exercising the power, all care and caution is required to be taken on the aforesaid aspects. Therefore, while upholding the power of this Court to order investigation by CBI, a word of caution, as observed by the Apex Court, deserves to be considered, inasmuch as, such power is to 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. Further, it is only in very very extraordinary case where there is sufficient material before the Court to record the substances on the apprehension of the complainant or the victim that a higher officer of the State, who were assigned with the investigation, had failed in his duty or would be failing in his duty cast upon by the statute in the matter of investigation, this Court may be required to exercise the power for assignment of the investigation altogether to a different agency like CBI. On the aspects of degree of malafide or malice on the part of the investigating officer, to carve out a case in the exceptional category for transferring the investigation, a cogent material on the face of it, which would leave the Court to satisfactory material substance on the apprehension voiced by either side is also required for exercise of power. It was contended by the learned Counsel appearing for the petitioner, who are relatives of the deceased that at the time when the consent was given by them for investigation by SIT, the situation was different and at the relevant point of time they had faith in the investigation, but after the order was passed by this Court on 13.8.2009, the situations are different inasmuch as in the case of Sohrabuddin encounter, at the relevant point of time, there were no conclusive observations by the Apex Court about 'no proper functioning by the higher police officers of the State', which now exists in view of the last order passed by the Apex Court for transfer of the investigation in Sohrabuddin encounter as per the decision reported at 2010(2) SCC, 200. Therefore, it was submitted that in view of the observations made by the Apex Court in the above referred case, there will not be any credibility to the investigation made by the SIT, which only comprises of the State Police Officers. Further, it was submitted that at the time when SIT was constituted earlier vide order dated 13.8.2009, the report of the learned Magistrate under Section 176 of Cr. P.C., was not there and in the contention of the learned Counsel for the petitioners, same set of officers, who are involved in encounter of Sohrabuddin are involved in the present encounter, therefore, it was submitted that in order to get justice and to instill confidence and provide credibility to the investigation, it should be assigned to CBI and no other agency. 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,
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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. 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. The contention to instill confidence and to provide credibility to the investigation and to do complete justice in order to protect the fundamental rights of the citizens of the country deserves consideration. In the case of Bharatbhai Umedsang & Anr. v. State of Gujarat (supra), this Court having found that there was no proper investigation on the aspects as narrated in paragraph 52 of the said decision, had observed in paragraph 54 of
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the said decision that in order to see that the faith is instilled in the investigating agency of the State that the investigation was conducted in a fair and impartial manner, the investigation was assigned to an officer of the higher rank, who was working in CID (Crime) as well as well-versed with the commission of economic offences. The fact situation of that case for instilling the confidence and credibility to the investigation was different, whereas the fact situation of the present case on the aspects of investigation or inquiry made so far and yet to be made, deserves to be considered. As observed earlier, there are divergent views for the genuineness of the encounter. One view is by the I.O., Ms.Gurjar and in the inquiry by Additional DGP, the same view is repeated. Therefore, it could be said to be one of the views taken by the Investigating Officer/the police officer, who has instigated and inquired into the matter having found that the encounter was genuine. Whereas, the view expressed by a Judicial Metropolitan/Magistrate in an inquiry under Section 176 of Cr. P.C., is different inasmuch as, as per the view taken by the learned Magistrate, the encounter is not genuine and could be termed as fake. Further, as observed earlier in the investigation made by the Police Officer, so far certain steps, which could have been taken for investigation namely that of (1) recovery of the Government weapon used by the police officer in the encounter and sending them for Forensic Science Laboratory; (2) the collection of data for use of the telephone/mobiles by the concerned police officer during the said period were not considered, nor material was collected. Similarly, the learned Magistrate while taking view on the aspect of genuineness of the encounter has not considered the statement of certain witnesses under Section 164 of Cr.P.C., to the effect that the deceased were at Surat in the evening of 14.6.2004. Therefore, leaving aside the aspects as to whether the deceased were associated with the terrorist activities in collusion with the Pakistani nationals or leaving aside the aspects that the police officers, in order to earn credit and thereby to have premium and appreciation from the Hon'ble Chief Minister as observed by the learned Magistrate, though there was no material on record, the fact remains that on the aspects of genuineness of the encounter, there are two views expressing different conclusions for the same set of evidences and circumstances; one by the police officers and another by the Judicial Magistrate in an inquiry under Section 176 of Cr. P.C.. The aforesaid leads us to find that the incident does require an investigation to trace the truth as to whether the encounter was genuine or fake or non-genuine. The aforesaid is coupled with strong circumstance that earlier when this Court (learned Single Judge) considered the matter on 13.8.2009 there was consensus amongst the petitioner of Special Criminal Application No.822 of 2004 as well as the respondents, including the State that the investigating team may be constituted for the purpose of carrying out the investigation in FIR being C.R. No.8/2004 registered with DCB Police Station, Ahmedabad City. Therefore, the factum of requiring investigation, may be through a team constituted by this Court, was agreed upon, as the incident called for such investigation. Under these circumstances, we find that the incident of alleged encounter does call for an investigation, which would include the aspects as to whether the encounter was genuine or not or a fake encounter. 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. It can hardly be disputed that this Court is well within its power to constitute a team of officers, which this Court may find it proper to instill confidence and credibility to the investigation. Be it noted that the police officers of the State, while discharging their normal or regular duty cannot and will not have the same status, when they are assigned with the work by this Court for investigation so entrusted by the Court. Their status for the purpose of discharging the work of investigation would be for the Court, since the Court is desirous to know the truth while protecting the rights of the citizens as against any action by the officers of the State. It is true that such officers, when are assigned with the work of further investigation or investigation in respect of any incident, would not cease to be the officers for the purpose of exercise of their power under Code of Criminal Procedure or other relevant laws, but they would be functioning by way of a special assignment as entrusted
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by the Court and they would also be answerable to the Court. Such officers, though may not be strictly put at par with the Court Commissioner, but can be termed as a member of the team constituted by the Court for a particular purpose in furtherance to the exercise of power by this Court. Therefore, the contention of the learned Advocate General that if the members of the present SIT are not continued in the SIT as already constituted by the Court, such would have a demoralizing effect can hardly be countenanced, nor the insistence on the part of the State can be countenanced for continuation of the same SIT for further investigation. It is true that the Court, for valid reason, may continue the same SIT or may expand the team or may reconstitute a separate SIT, but such insistence on the part of the State, cannot be countenanced. On the contrary, as understood by the members of the present SIT in right spirit, during the course of the hearing, it was declared by the members of SIT that they would abide by the orders, as may be passed by this Court. Therefore, we find that it would be in the domain of the Court, while exercising the judicial power to constitute a team for investigation and neither the members of the team, nor the State Government or the Central Government can insist on the formation of a team of particular officers only. At the same time, when the question is to be considered by the Court for formation of a team for investigation, which may include the officers of CBI, it is not open to even CBI to contend that unless the investigation is fully assigned to CBI, it would not be possible for the officers of the CBI to investigate the question in appropriate manner, as sought to be canvassed by the learned Counsel Mr.Ravani for CBI. We find from the report submitted by the present SIT that the investigation made so far is at a too preliminary stage and as per the report submitted, the present SIT has taken over only on 26.8.2009 and within a period of two months except receiving the record and proceedings and recording of the statements of the certain persons, no further investigation has taken place. As per the report submitted by the team, (1) the details of the phone of the police officers and other employees who are involved for the period from 1.6.2004 to 30.6.2004 is yet to be received, (2) the movement of Indica car from Pune-Nasik-Saputara-Nadiad is yet to be collected, (3) the statements of the witnesses from Kerala are to be recorded, (4) the Government weapons of the police officers, which were used for firing are collected, but the report of the Forensic Scientific Laboratory is yet to be received, (5) the details of the concerned police station and the police officers, who were on duty on 14th 15th June 2004 are yet to be collected. No witness for the incident for giving direct or indirect information has come forward in response to the public notice, (6) the inquiry at U.P., Lucknow, Faziabad, where the deceased Ishrat and Jahan had stayed is yet to be made, (7) the certain information of the earlier investigation made at Jammu and Kashmir and Delhi is yet to be verified and further the investigation is to be made, (8) the investigation is also to be made at Mumbai of Al Rehman Travels and its owner, (9) the evidences for the use of the Indica Car on route of Ahmedabad-Poona and Kerala-Ahmednagar are yet to be collected, (10) the clarification on the basis of the postmortem note is also yet to be collected, and (11) the other expert opinion, the visits of the places within Gujarat and outside Gujarat in various States are yet to be made. It was contended by the learned Counsel appearing for the petitioners, who are relatives of the deceased that the incident in question is having national and international ramification inasmuch as, as stated in the FIR registered by the police officer, it was for hatching conspiracy for killing the Hon'ble Chief Minister. Further, it relates to the terrorist activities by the deceased and other two Pakistani nationals, hence the net of inquiry can be beyond the limits of the Country. Therefore, it was submitted that if the investigation is assigned to CBI, it would be in a position to conveniently investigate into all such aspects and the same would meet with the ends of justice. The national and international ramification, as per the language used by the Apex Court, is not to be considered in light of the meaning as sought to be canvassed by the learned Counsel appearing for the petitioner. The
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incident may have ramification at the national level, if it relates to the sovereignty of the Nation and may have international ramification, if it relates to the international policy of our country and directly or indirectly the aspects incidental thereto. Therefore, the test would not be on the basis of the consequences, which may arise at the incident or the conspiracy realized. Further, in the said decision, the aspects of constitutional Court finding it proper in exercise of the power under Article 32 or 226 of the Constitution of India to get the investigation done by a Special Team was not there before the Apex Court. Under these circumstances, the contention that the inquiry should only be entrusted to CBI and none else cannot be accepted. Further, the said aspect is with the past conduct of one of the petitioners of Special Criminal Application No.822 of 2004 that at one point of time she had agreed for investigation through a team, which may be constituted by this Court under Article 226 of the Constitution of India. Therefore, it appears to us that the investigation made by the present SIT is at a too preliminary stage and the majority of investigation as stated earlier is yet to be made. Further, the aspect, which deserve to be considered, is that the movements of the deceased is not only within Gujarat, but is as such from outside Gujarat in Maharashtra State, in the State of Kerala, in the State of U.P., and also the association with the places in Jammu and Kashmir and Delhi. 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. At this stage, it may be recorded that additional Director General of Police, in his report dated 14.10.2004, has also stated that the sources of information should also be collected from the Central Intelligence, so as to ensure that such incidents are not repeated and proper steps can be taken for curbing the terrorist activities in the State. 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. We had called for the names of various officers of the State Cadre as well as of the CBI. We had also called for the names of the officers, included in the Special Investigation Team constituted by the Apex Court for the purpose of Godhra Riot Cases. We find that in the matter of constitution of Special Investigation Team, in a case where the investigation was also required to be held, not only against certain accused, but in cases where the police officers were involved of the State, in various riot cases, the Apex Court, as per its order read with the decision reported in the case of National Human Rights Commissions v. State of Gujarat and Ors., reported (2008) 16 SCC, 497 and (2009) 6 SCC, 342 had constituted a Special Investigation Team (SIT) and the said team is functioning in the State, not only for conducting inquiry/investigation in respect of the cases marked by the Apex Court, but is also discharging further work as assigned by the Apex Court as per its order passed in the same matter reported (2009) 6 SCC 767. It further appears that the said SIT is having all basic infrastructure for investigation of the criminal cases/the offences and other necessary investigation, including of prosecuting the matter in the concerned Court. In the matter of constitution of SIT, therefore, we think it proper to transfer the investigation to the same SIT, which is functioning under the above referred directions of the Apex Court. As reported to us, the said SIT now functioning consists of the following officers :(1) Shri R.K. Raghavan, Former Director, CBI (2) Shri Y.C. Modi, IGP (Meghalay Cadre) (3) Shri Dr. K. Venkatesham (Maharashtra Cadre)
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(4) Shri Ashish Bhatiya, IGP (Gujarat Cadre) (5) Shri A.K. Malhotra, Retired IGP (CBI) Hence, we find that the very SIT should be constituted and assigned the work for further investigation in connection with C.R. No.8/2004 registered with DCB Police Station, Ahmedabad City. 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. We may also record that if the composition or the constitution of SIT is altered or modified by the Apex Court, the same shall mutatis mutandis be applicable to the present case also, without there being any specific orders of this Court. It is further observed and clarified that the SIT so constituted by the present judgement 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. We may observe that to consider the controversy as to whether the incident requires further investigation or not we have made observations and as the contentions were raised by the respective parties have been dealt for that purpose. Therefore, it is clarified that any of the observations in connection with the incident whether genuineness of the encounter or otherwise, shall not prejudice the rights of the victims and/or of the accused in the event the consequences arise for trial before the competent Court and the rights and contentions of all the affected thereby shall remain open. In view of the aforesaid observations and discussions, the following conclusion can be deduced :(1) The amendment to Section 176 of Cr.P.C., which came into effect from 23.6.2010, is having retro-active character, hence, can be applied retrospectively to pending inquiry before the Sub-divisional Magistrate. It is clarified that such would not mean to disturb inquiry already concluded by the Sub-divisional Magistrate/Executive Magistrate. (2) The
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report of the Judicial/Metropolitan Magistrate under Section 176 of Cr. P. C., is having a recommendatory value by way of opinion of fact finding inquiry for the cause of the death. (3) The persons, who are found or involved in the report under Section 176 of Cr.P.C., being liable for the cause of death are not affected by the report, since they will have right of defence, if complaint is filed for any offence(s), hence, not entitled to challenge the report. (4) The report under Section 176 of Cr. P.C., of the Judicial Magistrate, normally is to be responded and acted upon by the State. However, but for extraordinary very strong and valid reasons, the State may differ From the report, but such action of the State shall be subject to judicial review of the High Court under Article 226 of the Constitution of India and at that stage, the contents of the report can be examined by this Court for putting law into motion or for further direction. (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.
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State vs Union on 12 August, 2010

(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. In the result, the following orders :(a) Special Criminal Application No.2012 of 2009 is dismissed. (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. (c) Criminal Misc. Application No.10625 of 2009 shall not survive in light of the present order passed in the main Special Criminal Application No.822 of 2004 and is disposed of accordingly. (d) In view of the order passed in the main Special Criminal Application No.822 of 2004 as well as in Criminal Misc. Application No.10625 of 2009, Criminal Misc. Application No.7570 of 2010 in Criminal Misc. Application No.10625 of 2009 in Special Criminal Application No.822 of 2004 shall stand disposed of accordingly. (e) Criminal

Indian Kanoon - http://indiankanoon.org/doc/1879844/

35

State vs Union on 12 August, 2010

Misc. Application No.7503 of 2010, in view of the order passed in Special Criminal Application No.2012 of 2009 shall stand disposed of accordingly. (f) Criminal Misc. Application No.7756 of 2010 in Special Criminal Application No.2012 of 2009, in view of the order passed in Special Criminal Application No.2012 of 2009, shall stand disposed of accordingly. (g) Criminal Misc. Application No.13526 of 2009 shall not survive as the present SIT shall get substituted by the SIT as per the order passed herein above. Hence, the said application shall stand disposed of accordingly. (h) The SIT constituted earlier pursuant to the interim order dated 13.8.2009 shall stand dissolved and the SIT shall forthwith entrust the records, which are in its possession, to the new SIT constituted for such purpose. Rule made absolute to the aforesaid extent and rule discharged in the respective matters. Record and proceedings called from the Court of Metropolitan Magistrate in connection with Inquiry Case No.1 of 2009 be kept in a sealed cover and be kept in safe custody with the Registrar General of this Court. (Jayant Patel, J.) 12.8.2010 (Smt. Abhilasha Kumari, J.) vinod Top

Indian Kanoon - http://indiankanoon.org/doc/1879844/

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