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2011 Supreme(Guj) 234
2011 (2) GCD 1484 (SC)
Hon’ble Mr. Justice P. Sathasivam &
Hon’ble Mr. Justice Dr. B.S. Chauhan
Narmada Bai
Versus
State of Gujarat & Ors.
Writ Petition (Criminal) No. 115 of 2007—Decided on 08/04/2011
Point in Issue :
Whether petitioner is entitled to relief of direction to CBI to investigate the matter.
Headnote:Head Note :
(a) Constitution of India, 1950 — Article 32 — Writ petition — Seeking direction to CBI to investigate into fake encounter killing petitioner’s son — After filing charge sheet by State agency in the case — Scope of — Court considering the various cases cited opined and held that when the Court feels that the investigation by the State police authorities is not proper as the higher police officer are involved it is always open to Court to handover the investigation to an independent and specialised agency like CBI to do complete justice.
Held :
It is clear that in an appropriate case, particularly, when the Court feels that the investigation by the State police authorities is not in the proper direction as the high police officials are involved, in order to do complete justice, it is always open to the Court to hand over the investigation to an independent and specialized agency like the CBI. [Para 11]
Head Note :
(b) Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Sections 220 and 178(2) & (8) — Murders — Committed during one series of acts — Form same transaction — Required to be investigated and prosecuted by same agency — Finding of — In the case of murder of S. & K. investigated by CBI it is definite case of CBI that abduction of S & K and their subsequent murder as well as murder of petitioner’s son ‘T’ are one series of act so connected together as to form the same transaction — If investigator and prosecutor both the murders by different agencies it may cause failure of justice in both cases — That apart there is substantial material on record which makes it probable that prime motive of elimination of petitioner son T was that he was a witness to abduction of S & K — Both oral and documentary evidence raise strong suspicion that S & K were eliminated in fake and stage managed encounter as predicted by deceased T — He was, therefore, eliminated by Respondents No. 6 to 19 — This matter need to be investigated by CBI to restore confidence in public that justice is done — Court, therefore, directed CBI to take up investigation in the matter and after investigation submit it’s report to concerned Court.
Held :
It is the definite case of the CBI that the abduction of Sohrabuddin and Kausarbi and their subsequent murders as well as the murder of Tulsiram Prajapati are one series of acts, so connected together as to form the same transaction under Section 220 of the Cr.P.C. As rightly pointed out by the CBI, if two parts of the same transaction are investigated and prosecuted by different agencies, it may cause failure of justice not only in one case but in other trial as well. It is further seen that there is substantial material already on record which makes it probable that the prime motive of elimination of Tulsiram Prajapati was that he was a witness to abduction of Sohrabuddin and Kausarbi. Both oral and documentary evidence raise strong suspicion that the encounter was fake and stage managed as predicted by Tulsiram Prajapati prior to his death in a number of communications. Court have already adverted to his complaint to the District Collector, Udaipur, Rajasthan and representation to the NHRC, New Delhi. In both the representations Tulsiram Prajapati highlighted about the danger to his life. In fact, the NHRC forwarded his representation to the Director General of Police, Gujarat for necessary action. [Para 23]
Since the CBI had primarily conducted the investigation in the case of encounter of Sohrabuddin and the murder of Kausarbi, it has so far not launched a full fledged investigation into the circumstances in which Tulsiram Prajapati was killed. According to him, certain facts have come to the notice of the CBI only as part of “larger conspiracy” with regard to which investigation was ordered by this Court and it was pointed out that full-fledged investigation by the CBI alone reveal further facts and lead to more direct evidence. Mr. K.T.S. Tulsi is right in claiming that the investigation in every criminal case is conducted on the basis of suspicion and reason to believe and to apply the standard of proof beyond doubt at a stage when a full fledged investigation is yet to be launched. [Para 30]
It is not in dispute that it is the age-old maxim that justice must not only be done but must be seen to be done. The fact that in the case of murder of an associate of Tulsiram Prajapati, Senior police officials and a senior politician were accused which may shake the confidence of public in investigation conducted by the State Police. If the majesty of rule of law is to be upheld and if it is to be ensured that the guilty are punished in accordance with law notwithstanding their status and authority which they might have enjoyed, it is desirable to entrust the investigation to the CBI.
[Para 31]
Head Note :
(c) Vade Macum — Maxim — It is not in dispute that it is the age old maxim that Justice must not only be done but must be seen to be done.
Law Laid Down :
Where investigation by State police is not proper it is always open to Court to hand over investigation to independent Agency.
P. Sathasivam, J.—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., (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 petit
