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2017 Supreme(Guj) 969
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, J.
Jamalbhai Mohammadbhai Mehtar – Appellant
Vs.
State of Gujarat and Ors. – Respondents
Special Criminal Application (Direction) No. 144 of 2017
Decided On : 05-05-2017
For the Appellant :Subramaniam Iyer, Advocate
For the Respondent:P.K. Jani, Additional Advocate General
Headnote:
Constitution of India, 1950 – Article 226 – Indian Penal Code, 1860 – Sections 120-B, 121-A, 122, 123, 307, 353, 186 and 224 – Bombay Police Act – Section 135(1) – Fake encounter – Prayed for registration of the offence against the police officers concerned responsible for the murder of his son by showing a fake encounter and also prayed that the investigation be conducted by the C.B.I. A Coordinate Bench of this Court, vide the judgment and order allowed writ application and passed an order directing the C.B.I. to conduct the investigation into the allegations of fake encounter. It is the case of the writ applicant that his son by name Sadik aged 25 was killed by the officers of the D.C.B. on 13th January 2003 in a fake encounter – In such circumstances, he claims compensation to the tune of Rupees Fifty Lac from the State Government – Held, on the truth or otherwise of the allegations made in the charge-sheet and the same will be considered by the Trial Court concerned – It has been almost fourteen years from the date of the incident. At this stage, I find it difficult to grant the relief on the assumption that the case is one of a fake encounter – There are allegations and counter allegations. Of course, the C.B.I., after investigation, has reached to the conclusion that the case is one of fake encounter, but the accused are yet to be put on trial – The evidence cannot be termed as incontrovertible. Any finding, in this regard, even prima facie at this stage, at the end of this Court, will have its own implications so far as the trial is concerned. It is true that the Courts must deal with matters, like one on hand in a realistic manner and with the sensitivity which it deserves, otherwise, the common man may tend to gradually lose faith in the efficacy of the system of the judiciary itself, which if it happens will be a sad day for anyone to reckon the truth – Application rejected. (Paras 24 to 26)
J.B. Pardiwala, J.
1. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:
"5(A) Directing the respondent to pay to the petitioner Rs. 50 Lacs or any other appropriate amount deemed fit, towards compensation against killing of his son Sadik Jamal in a fake encounter on 13-1-2003 by the officers of Crime Branch.
(B) Any other relief deemed fit to meet the ends of justice may be granted."
2. The case of the writ applicant may be summarised as under:
2.1 It is the case of the writ applicant that his son by name 'Sadik' aged 25 was killed by the officers of the D.C.B. on 13th January 2003 in a fake encounter. In such circumstances, he claims compensation to the tune of Rupees Fifty Lac from the State Government.
2.2 It appears from the materials on record that on 13th January 2003, a First Information Report came to be registered with the Crime Branch Police Station, Ahmedabad city against the deceased son of the writ applicant and seven others for the offence punishable under Sections 120-B, 121-A, 122, 123, 307, 353, 186 and 224 of the Indian Penal Code and Section 135(1) of the Bombay Police Act. The F.I.R. reads as under:
"DATED : 13-1-2003
I, Jaisinh Gulabsinh Parmar, Police Inspector, Crime Branch, Ahmedabad City, do hereby state in person my complaint as under:
That I am performing my duty at Crime Branch at Ahmedabad City since 11-6-2002.
That after partition of India in 1947, two nations viz. India and Pakistan came into existence. Pakistan was created on the basis of religious fundamentalism whereas India after independence remained to be a secular state. In order to grab Jammu and Kashmir, Pakistan fought 3 wars against India. The last insurgency was made in Kargil, in consequence of which the Kargil war took place which was again the continuation off warring tendency of Pakistan. However, the Pakistan has always faced defeat in all its open war against India. Lastly in the year 1971 the Pakistan had to face disastrous defeat in the Bangladesh war. As a result of continuous defeat the Pakistan instead of fighting open war against India, is now since last two decades fighting less expensive proxy war of low intensity by enforcing the cross border terrorism and thereby creating a situation compelling India to hand over Jammu and Kashmir to the Pakistan. By proxy war now Pakistan is attempting to disrupt the unity and integrity of India. This proxy war is managed by the infamous spying secret agency of Pakistan viz. I.S.I., which is spreading Islamic fundamentalism Islamic and managing Jehadi organizations like Lashker-E-Toiba, Jaish-E-Mohmad AND Al-Quade by providing training and organizing the jehadi cadre and providing them arms, ammunitions and explosive materials to be smuggled in India for the purpose of killing innocent people and carrying out subversive attacks. It is note that only jehadi organizations are used for carrying out terrorist activities in India. There are various mafias and the gangsters of the underworld operating in India, Pakistan and Gulf countries having centres in the cities like Mumbai, Karachi, Dubai, Kuwait etc. and they are closely associated with ISI at whose behest they are active in India for carrying out terrorist attacks.
Lastly in Gujarat after the Godhra carnage followed by large scale riots and arson as its consequence the ISI and other jehadi organizations of Pakistan, in association with the mafia gangsters of the underworld and the local notorious gangs, taking advantage of the situation arising from the riots, had targeted Gujarat for their terrorist activities. This fact is clearly establish by the various incidents of terrorism in the recent past-such as the terrorist attack on Akshar Dham, conspiracy to kill the Chief Minister of Gujarat Shri Narendrabhai Modi and Shri Pravinbhai Togadiya of the VHP by the local terrorist of Lashker-E-Toiba in Ahmedabad viz. Sahid Bakshi and other terrorists arrested b
