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2011 (3) Supreme 153
SUPREME COURT OF INDIA
P. Sathasivam and Dr. B.S. Chauhan, JJ.
Narmada Bai — Petitioner(s)
versus
State of Gujarat & Ors. — Respondent(s)
Writ Petition (Criminal) No. 115 of 2007
Decided on : 8-4-2011
(2010) 2 SCC 200; (1996) 2 SCC 199; (1998) 8 SCC 661; (2006) 6 SCC 613; (2006) 5 SCC 733; (2007) 6 SCC 171; (2008) 1 SCC 407; 1994 Supp (1) SCC 143; (2006) 2 SCC 677; 1988 Supp SCC 482; (1992) 1 SCC 397; (1994) 1 SCC 616 – Relied upon
(b) Code of Criminal Procedure, 1973 – Section 220 – CBI positively asserting that abduction of Sohrabuddin and Kausarbi and their subsequent murders as well as the murder of Tulsiram Prajapati are one series of acts – CBI investigating Sohrabuddin case – State police resisting CBI investigation into Tulsiram – Investigation into two parts of the same transaction by different agencies may cause failure of justice not only in one case but in other trial as well. (Para 23)
(c) Criminal Trial – Investigation in every criminal case is conducted on the basis of suspicion and reason to believe – Standard of proof beyond doubt is applied at a stage when a full fledged investigation is yet to be launched. (Para 30)
(d) Code of Criminal Procedure, 1973 – Section ? – When serious aspersions are cast and allegations are labeled against the local police in impartially conducting investigation, it is proper to entrust the investigation to independent agency like CBI – Accused persons do not have a say in the matter of appointment of an investigation agency. (Paras 34 and 36)
1994 Supp (1) SCC 145; 1994 Supp (1) SCC 143; Rubbabuddin Sheikh – Relied upon
(e) Criminal Trial – Investigation – Monitoring – In Supreme Court monitored cases the Court is concerned with ensuring proper and honest performance of its duty by CBI – The Court is not concerned with the merits of the accusations in investigation – Once the charge-sheet is filed, the monitoring comes to an end. (Para 38)
(1996) 2 SCC 199; (1998) 8 SCC 661; (2007) 1 SCC 110 – Relied upon
Facts of the case:
1. According to Narmada Bai – the petitioner – her son Tulsiram Prajapati was killed on 27/28.12.2006 in a fake encounter by respondent Nos. 6 to 19, officials of Gujarat and Rajasthan Police, somewhere on the road going from Ambalimal to Sarhad Chhapri.
2. Narmada Bai therefore filed the present writ petition under Article 32 of the Constitution of India praying for issuance of a writ of mandamus or in the nature thereof or any other writ, order or direction directing the Central Bureau of Investigation to take up the investigation.
Finding of the Court:
The investigation conducted and concluded in the present case by the State police cannot be accepted.
Result : Writ allowed.
JUDGMENT
P. Sathasivam, J. —
1) Narmada Bai-the petitioner herein, mother of Tulsiram Prajapati-the deceased, who, according to her, was killed on 27/28.12.2006 in a fake encounter by respondent Nos. 6 to 19, who are the officials of Gujarat and Rajasthan Police, somewhere on the road going from Ambalimal to Sarhad Chhapri, has filed the above writ petition under Article 32 of the Constitution of India praying for issuance of a writ of mandamus or in the nature thereof or any other writ, order or direction directing the Central Bureau of Investigation (in short ‘the CBI’) to register a First Information Report (in short ‘FIR’) and investigate into the fake encounter killing of her son and submit its report to this Court. In the same petition, she also prayed for compensation for the killing of her son in a fake encounter thereby causing gross violation of Articles 21 and 22 of the Constitution.
2) Case of the Writ Petitioner:-
a) According to the petitioner, she is 55 years old illiterate widow. Her younger son had been done away by respondent Nos. 6-19 in a fake encounter with the ulterior intent to shield themselves in the investigation emanating under the directions of this Court in the case of Rubabbuddin Sheikh vs. State of Gujarat & Ors.,1 (2010) 2 SCC 200. She came to know through local persons about the fake encounter and killing of Sohrabuddin and his wife Kausarbi and the directions of this Court in that case. On being informed about the said incident, she approached this Court for directions to register an FIR into the fake encounter killing of her son Tulsiram Prajapati and investigation by an independent agency, like the CBI and for submission of its report to this Court for further action. According to the petitioner, the fake encounter killing of her son is directly connected to the case of Sohrabuddin and his wife Kausarbi as he would have been a material witness to the said killings.
(b) It is further stated that her son Tulsiram Prajapati while lodged in Central Jail, Udaipur, had addressed a letter dated 11.05.2006 to the Collector, Udaipur informing him about the life threatening attack carried out on him in Udaipur Central Jail on 25.03.2006, when he was beaten up with iron rods and lathis by co-prisoners. He expressly wrote that there was conspiracy to kill him along with two others and also named the persons who were behind the conspiracy and requested that incident be investigated and his life be protected. Thereafter, on 18.05.2006, the deceased also addressed a letter to the Chairman, National Human Rights Commission (in short ‘NHRC’) alleging that there was conspiracy among the police officials of Gujarat, Rajasthan, Maharashtra, etc. to do away with him in a fake encounter by cooking up a false story of running away from custody. In the said letter, the deceased specifically requested that his security be ensured whenever he is taken on remand. In the same letter, he also mentioned that the Gujarat Crime Branch and Anti Terrorist Squad (in short ‘ATS’) were very notorious for staging fake encounters. The NHRC acknowledged the receipt of the said letter and forwarded a copy to the Superintendent of Police, Udaipur, Rajasthan vide letter dated 22.06.2006.
(c) Thus from March 2006, the deceased had been expressing serious apprehensions and threat to his life at the hands of the police. The deceased had reasons to believe that Mr. Dinesh Kumar, Superintendent of Police, respondent No.8, had taken a huge sum of money from the Marble traders and dealers in Rajasthan with the assurance that he would do away with him in a fake encounter. Before he being interrogated by Ms. Geeta Johri, an officer investigating the matter of fake encounter killing of Sohrabuddin and his wife Kausarbi, in the night intervening 27/28 December, 2006, Tulsiram Prajapati was done away in a fake encounter by respondent Nos. 6-19.
(d) Quoting from certain newspaper reports, more particularly, the Times of India dated 29.12.2006, the
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