IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 115 OF 2007
Narmada Bai .... Petitioner(s)
State of Gujarat & Ors. .... Respondent(s)
J U D G M E N T
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 1short `the
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
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 `
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 4petitioner has alleged that her son was being escorted by Udaipur (Rajasthan) Police from Ahmedabad to Udaipur in a train. When the train was passing through Himatnagar-Shymlaji Stretch, the deceased sought permission to go to the toilet. The policemen escorted him to the toilet where two of his accomplices disguised as passengers attacked the policemen by throwing chilli powder in their eyes. When the policemen called for the other members of the escort party, the goons fired at them and jumped off the moving train. In response, the police opened fire but the accused fled in the cover of darkness after shooting back at the police.
e. Pursuant to such alleged fleeing of Tulsiram Prajapati from police custody, Mr. Dinesh Kumar, SP, Udaipur called Mr. Vipul Agarwal, SP Banaskantha and informed him of the same. Thereafter, local police of Banaskantha headed by Mr. Vipul Agarwal under direct supervision of Mr. D.G. Vanzara, Range
f. It is further alleged that when patrolling was carried out, three persons tried to stop one Matador van but the vehicle did not stop there. It has also been alleged that a police jeep of Mr. A.A. Pandya, SI was coming behind the Matador and the said three persons tried to stop it. On stopping the police jeep, Mr. Narayansinh Fatehsinh Chauhan,
g. It is the further case of the petitioner that the deceased being a key eye witness to the murder of Sohrabuddin and his wife Kausarbi, the team of Mr. D.G. Vanzara and others planned to do away with him to avoid his interrogation by Ms. Geeta Johri, Inspector General of Police. The aforesaid facts create a strong suspicion on the conduct of respondent Nos. 6 to 19 and the petitioner has every reason to believe that her son- Tulsiram Prajapati has been killed by them in a fake encounter. She also alleged that the respondents/accused officers enjoy powerful position in their respective State Police and are trying to obstruct further inquiry into the fake encounter killing of her son, who was a material witness in the case of fake encounter of Sohrabuddin and his wife Kausarbi. Hence, the petitioner has preferred this petition before this Court praying for direction to
3. Stand of the State of Gujarat - respondent No.1
a. Shri I.M. Desai, Deputy Inspector General of Police,
b. According to the State, after escaping from the Police Custody, Tulsiram Prajapati was again confronted by Gujarat Police and Rajasthan Police and was killed in police firing for which an FIR was registered in Ambaji Police Station vide CR No. 115 of 2006 dated 28.12.2006 under Sections 307, 427, 34 of IPC and Section 25(1)(C) of the Arms Act, 1959 and Section 135 of the Bombay Police Act, 1951. Since the cases in respect of the above two incidents had already been registered in the Police Stations, there is no need to register a fresh case as claimed by the petitioner. It was further stated that Tulsiram Prajapati was not a material witness in the case of Sohrabuddin. He also denied that any such incident had taken place within the premises of Udaipur Central Jail as claimed by the petitioner on 25.03.2006 but there was a quarrel among the prisoners on 24.03.2006 in the Court lock-up for which a criminal case was registered at Bhopalpura Police Station in C.R.No. 131 of 2006 under Sections 341, 323, 506 and 34
c. As regards the complaint made to the NHRC, investigation carried out so far revealed that no such conspiracy amongst the police officers of Maharashtra, Gujarat, Madhya Pradesh and Rajasthan has come on record. The deceased also never showed any apprehension to the petitioner about danger to his life from marble dealers or police officers of Udaipur. The petitioner's claim about Tulsiram Prajapati's apprehension to his life is at the most hearsay and based on extraneous considerations.
d. The claim that the deceased-Tulsiram Prajapati was highly inconvenient witness for respondent Nos. 6-19 is without substance as respondent No. 10 - Mr. V.L. Solanki, an inquiry officer, has stated in respect of alleged killing of Sohrabuddin that during preliminary enquiry there was no link between Tulsiram Prajapati and the death of Sohrabuddin and his wife Kausarbi in an encounter. The same view has been expressed by Ms. Geeta Johri, IGP under whose direct supervision the case relating to Sohrabuddin was investigated. The `third person' allegedly present at the time of abduction of 10Sohrabuddin and Kausarbi was Kalimuddin and not Tulsiram Prajapati.
e. In the subsequent affidavit dated 19.08.2010, Dashrathbhai R. Patel, Under Secretary, Government of Gujarat, Home Department has stated that the State
4. Stand of Mr. Amit Shah - respondent No.2:
a. The present writ petition is an abuse of the process of law by/at the behest of political party controlling the
b. The investigation in a criminal case normally takes place in accordance with the procedure prescribed under the Code of Criminal Procedure (in short `the Cr.P.C.') and by the normal investigating agency prescribed. The Constitutional Court can direct deviation from such statutorily prescribed method of investigation and direct an outside agency like the
c. On perusal of both the investigations and charge-sheet which are filed in both the offences, it is seen that there is no credible evidence to support the view that Tulsiram Prajapati was that `third person' and the evidence which the
On the other hand all available evidence points to the fact that the `third person' could only be Kalimuddin @ Naimuddin who is under the protection of the Andhra Pradesh Police. The
5. Stand of the
a. The investigation conducted in R.C. No. 4(S)/2010, Special Crime Branch, Mumbai, as per the directions of this Court in its order dated 12.01.2010, vide Writ Petition (Crl.) No. 6 of 2007 revealed that the alleged fake encounter of Tulsiram Prajapati on 28.12.2006 was done in order to eliminate him as he was the key witness in the criminal conspiracy of the abduction and killing of Sohrabuddin and Kausarbi by the powerful and the influential accused persons. The investigation further revealed that the deceased knew that his death was imminent at the hands of Gujarat Police in 13connivance with the Rajasthan Police as he was the prime witness to the said case.
b. The investigation also revealed that Tulsiram Prajapati was brought to Ahmedabad on 28.11.2006 and 12.12.2006 in connection with the case No. 1124 of 2004 in JM Court No. 13, Ahmedabad, along with co-accused Md. Azam and around 50 police commandos were accompanied for the escort party, whereas on 25.11.2006, Tulsiram Prajapati was brought alone on police escort by Rajasthan Police from Udaipur Jail when less than five police men accompanied him. After the orders of this Court for the investigation by this agency, it emerged that police officials of
c. The murder of Tulsiram Prajapati took place on 28.12.2006, case was registered on 28.12.2006 and Gujarat
6. As far as the officials of the Gujarat State Police are concerned, they reiterated the stand taken by the State. Mr. Dinesh Kumar, S.P. Udaipur, Rajasthan-respondent No.8 has filed a separate counter affidavit denying all the allegations made by the petitioner and taking the same stand as that of the State of Gujarat and ultimately prayed for dismissal of the writ petition.
7. In the light of the above pleadings, we heard Mr. Huzefa A. Ahmadi, learned counsel for the writ petitioner, Mr. Ranjit Kumar, learned senior counsel for the State of Gujarat (respondent No.1), Mr. Ram Jethmalani, learned senior counsel for Amit Shah (respondent No.2), Mr. K.T.S. Tulsi, learned senior counsel for the
8. The main grievance of the petitioner is that her deceased son - Tulsiram Prajapati being a key witness to the murder of Sohrabuddin and his wife Kausarbi, the team of Mr. D.G. Vanzara,
9. Mr. Ranjit Kumar, learned senior counsel for the State of Gujarat and Mr. Ram Jethmalani, learned senior counsel for Mr. Amit Shah, respondent No.2, who, at the relevant time was the Home Minister of the State, vehemently objected the 16claim of the petitioner and by placing several materials submitted that inasmuch as after proper investigation the State Police has filed the charge-sheet, there is no need for further investigation by the
10. Keeping the above submissions in mind, we have to first find out (a) whether after filing of the charge-sheet by the State agency, the Court is precluded from appointing any other independent specialized agency like the
11. The first issue i.e. (a) as in the case on hand also arose in the case of Rubabbuddin Sheikh (supra). The factual details therein will be discussed in the later paragraphs. With regard 17to the similar objection as to further investigation by the
i. Vineet Narain vs. Union of India, (1996) 2
ii. Union of India vs. Sushil Kumar Modi, (1998) 8
iii. Rajiv Ranjan Singh `Lalan' (VIII) vs. Union of India, (2006) 6
iv. Hari Singh vs. State of U.P., (2006) 5
v. Aleque Padamsee vs. Union of India, (2007) 6
vi. M.C. Mehta vs. Union of India, (2008) 1
vii. R.S. Sodhi vs. State of U.P., 1994 Supp(1)
viii. Ramesh Kumari vs. State (NCT of Delhi), (2006) 2
ix. Kashmeri Devi vs. Delhi Administration, 1988 Supp
x. Gudalure M.J. Cherian vs. Union of India, (1992) 1
xi. Punjab & Haryana High Court Bar Asson. Vs. State of Punjab, (1994) 1
"Therefore, in view of our discussions made hereinabove, it is difficult to accept the contentions of Mr Rohatgi, learned Senior Counsel appearing for the State of Gujarat that after the charge-sheet is submitted in the court in the criminal proceeding it was not open for this Court or even for the High Court to direct investigation of the case to be handed over to
It cannot be said that after the charge-sheet is submitted, the court is not empowered, in an appropriate case, to hand over the investigation to an independent agency like
On this ground, we have carefully examined the eight action taken reports submitted by the State police authorities before us and also the various materials produced and the submissions of the learned counsel for both the parties." (Emphasis supplied)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
12. In the light of the above principles, now let us consider the second issue (b) viz., whether the investigation relating to the encounter killing of Tulsiram Prajapati should be transferred to the
13. It is the specific stand of the writ petitioner that while considering the grievance of Rubabbuddin Sheikh about the death of his brother Sohrabuddin in a fake encounter, the present petitioner, mother of Tulsiram Prajapati also filed Writ Petition (Crl.) No. 115 of 2007 and, the same was tagged along with Writ Petition (Crl.) No. 6 of 2007 which was filed by brother of Sohrabuddin. The cause title of the case vide Rubabbuddin Sheikh vs. State of Gujarat & Ors. (2010) 2
Though at the end of the judgment, this Court directed that Writ Petition (Crl.) No. 115 of 2007 be listed after eight weeks before an appropriate Bench. As pointed out by the learned counsel for the petitioner and the
In para 65, the following observations are relevant: "65. It also appears from the charge-sheet that it identifies the third person who was taken to Disha farm as Kalimuddin. But it does not contain the details of what happened to him once he was abducted. The possibility of the third person being Tulsiram Prajapati cannot be ruled out, although the police authorities or the State had made all possible efforts to show that it was not Tulsiram. In our view, the facts surrounding his death evokes strong suspicion that a deliberate attempt was made to destroy a human witness." (Emphasis supplied)Apart from the above conclusion, after analyzing several Action Taken Reports filed by the State and various circumstances and in view of the involvement of the high police officials of the State in the crime therein, this Court directed the
14. Pursuant to the said direction, the
15. As against the assertion of the writ petitioner and the stand of the
i. Tulsiram Prajapati, as mentioned in the petition and in the prayer was the sharp shooter of Sohrabuddin. He was co-accused of Sohrabuddin in Hamid Lala's case and was taken into custody only on 29.11.2005. Obviously, he had been absconding till then. In other words, he had been absconding for nearly a year before he was arrested. After his arrest, he was lodged in Central Jail, Udaipur. While in custody, he and two of his jail-mates addressed a letter dated 11.05.2006 to the Collector, Udaipur informing him about the attack carried out on them in the jail premises and they were badly injured. He did not even express a suspicion about any one who planned the attack on him. He named seven persons who had actually participated in the attack. In the said letter, he did not allege or even suspect that this dangerous assault in jail had anything to do with the Sohrabuddin-Kausarbi fake encounter case or that he was being eliminated because he was a witness of the murder of either Sohrabuddin or his wife.
ii. On 18.05.2006, Tulsiram Prajapati addressed another letter to the Chairman, NHRC, New Delhi. In this letter again, he did not allege that he was an eye witness and that is why he was afraid of being eliminated. He, however, did admit that he is an accused in serious cases in the State of Maharashtra, Gujarat, Madhya Pradesh and Rajasthan. What he alleged was that there was a conspiracy among the police officers of these States to knock him out. Even the NHRC did not draw any inference. Ultimately, Tulsiram Prajapati was killed at about 8.00 a.m. on 28.12.2006. The scene of offence was within the jurisdiction of Ambaji Police Station in District Banaskantha of Gujarat. An FIR of this incident was registered on the same day within 15 minutes.
iii. Till his death, no evidence had emerged that he had accompanied Sohrabuddin about 13 months back i.e. on 25.11.2005 to Gujarat where the encounter took place on the outskirts of Ahmedabad.
iv. The order of this Court in Rubabbuddin Sheikh (supra) has been made under unfortunate circumstances without hearing anybody except the State of Gujarat. It is the Union of India and Amicus who is a law officer of the Union of India that wanted the investigation into the Sohrabuddin's case be transferred to the
v. Apart from the 13 accused who had originally been charge-sheeted by the Gujarat Police as a result of their investigation, the
16. By placing all the above details and further materials both the senior counsel submitted:i) By filing the charge-sheet by the Gujarat Police the State has granted the prayer which Narmada Bai has made in her writ petition. ii) The persons whom she has implicated have all been charge-sheeted by the Gujarat Police.iii) The conduct of the
17. Inasmuch as the present writ petition is having a bearing on the decision of the writ petition filed by Rubabbuddin Sheikh and also the claim of the petitioner, the observations made therein, particularly, strong suspicion about the `third person' accompanied Sohrabuddin, it is but proper to advert factual details, discussion and ultimate conclusion of this Court in Rubabbudin Sheikh's case. Acting on a letter written by Rubabbuddin Sheikh to the Chief Justice of India about the killing of his brother Sohrabuddin Sheikh in a fake encounter and disappearance of his sister-in-law Kausarbi at the hands of the Anti-Terrorist Squad (
18. Mr. Ram Jethmalani, learned senior counsel appearing for the respondent No. 2 in the present writ petition vehemently submitted that the entire discussion and the ultimate conclusion in Rubabbuddin Sheikh's case is unacceptable and no reliance needs to be placed on it. He also submitted that respondent No. 2 and other police officials were not heard by the said Bench before ordering fresh investigation by the
It is an admitted position in the present case that the accusations are directed against the local police personnel in which the high police officials of the State of Gujarat have been made the accused. Therefore, it would be proper for the writ petitioner or even the public to come forward to say that if the investigation carried out by the police personnel of the State of Gujarat is done, the writ petitioner and their family members would be highly prejudiced and the investigation would also not come to an end with proper finding and if investigation is allowed to be carried out by the local police authorities, we feel that all concerned including the relatives of the deceased may feel that investigation was not proper and in that circumstances it would be fit and proper that the writ petitioner and the relatives of the deceased should be assured that an independent agency should look into the matter and that would lend the final outcome of the investigation credibility however faithfully the local police may carry out the investigation, particularly when the gross allegations have been made against the high police officials of the State of Gujarat and for which some high police officials have already been taken into custody.
It is also well known that when police officials of the State were involved in the crime and in fact they are investigating the case, it would be proper and interest of justice would be better served if the investigation is directed to be carried out by the
It cannot be said that after the charge-sheet is submitted, the court is not empowered, in an appropriate case, to hand over the investigation to an independent agency like
It appears from the charge-sheet itself that it does not reveal the identity of police personnel of Andhra Pradesh even when it states that Sohrabuddin and two others were picked up by Gujarat Police personnel, accompanied by seven personnel of Hyderabad Police. It also appears from the charge-sheet that Kausarbi was taken into one of the two Tata Sumo Jeeps in which these police personnel accompanied the accused. They were not even among the people who were listed as accused. Mr Gopal Subramanium, Additional Solicitor General for India (as he then was) was justified in making the comment that an honest investigating agency cannot plead their inability to identify seven personnel of the police force of the State.
It also appears from the charge-sheet that it identifies the third person who was taken to Disha farm as Kalimuddin. But it does not contain the details of what happened to him once he was abducted. The possibility of the third person being Tulsiram Prajapati cannot be ruled out, although the police authorities or the State had made all possible efforts to show that it was not Tulsiram. In our view, the facts surrounding his death evokes strong suspicion that a deliberate attempt was made to destroy a human witness. 68. From the above factual discrepancies appearing in the eight action taken reports and from the charge-sheet, we, therefore, feel that the Police Authorities of the State of Gujarat had failed to carry out a fair and impartial investigation as we initially wanted them to do. It cannot be questioned that the offences the high police officials have committed were of grave nature which needs to be strictly dealt with."After arriving at such conclusion, the Bench directed the
19. It is clear that the above judgment records that there was a strong suspicion that the `third person' picked up with Sohrabuddin was Tulsiram Prajapati. It was also observed that the call records of Tulsiram were not properly analyzed and there was no justification for the then Investigation Officer - Ms. Geeta Johri to have walked out of the investigation pertaining to Tulsiram Prajapati. The Court had also directed 32the
20. Countering the stand of the petitioner,
The second case is Hamid Lala murder case in which one Hamid Lala, a protector of marble dealers of Rajasthan against criminal extortion by Sohrabuddin gang was shot dead at a place within the jurisdiction of Ambaji Police Station, Udaipur in the State of Rajasthan. This incident took place on 31.12.2004. It is a fact that Sohrabuddin after committing Hamid Lala's murder absconded and was not available to the Rajasthan Police. Later, it came to the knowledge of the investigating authorities that he had been hiding in a village of Madhya Pradesh. In the Hamid Lala murder case, Sohrabuddin's co-accused were Tulsiram Prajapati, Sylvester and one Azamkhan. It was further pointed out that one Kalimuddin @ Naimuddin another notorious criminal wanted in many serious cases was residing in the State of Andhra Pradesh along with his sister Saleema Begum. They were acting as informers of the Andhra Pradesh Police and they were under their protection. Saleema Begum was residing in Government Railway Quarters. It was Kalimuddin, who seems to have approached by somebody who invited Sohrabuddin and his wife Kausarbi from their hide out in Madhya Pradesh to Hyderabad.
This happened in the middle of November, 2005. It was further highlighted that on or about 22.11.2005, Sohrabuddin and his wife Kausarbi left by a luxury bus for Sangli in Maharashtra. Two tickets for the bus journey were purchased by one Sri Hari. The bus was pursued by police vehicle, two of them were in Tata Sumo vehicles belonging to the Andhra Pradesh Police. They were driven by two drivers in the employment of police being ordinary policemen. The Andhra Pradesh police officers who sat in these two vehicles have not been identified despite investigation both by the Gujarat Police as well as later by the
21. Mr. Ranjit Kumar and Mr. Ram Jethmalani, learned senior counsel pointed out that the Gujarat Police while investigating Sohrabuddin's murder case had conducted a good part of investigation in the State of Andhra Pradesh. The Andhra Pradesh Police, however, was determined to yield no clue whatsoever about the role of the State police in the murder. Ms. Geeta Johri, the head of the Gujarat Investigating Chief had interrogated the potential witnesses but she drew a blank. She was not provided with more materials such as Vehicle Entry Register for further investigation. The Gujarat police headed by Ms. Johri had come to the conclusion that it was possible that the couple was accompanied by a `third person' and in all probability that person was Kalimuddin, who had succeeded in getting the couple from Madhya Pradesh to Hyderabad and he handed over the couple to the murdering team which certainly included the Andhra Pradesh officers.
22. According to the learned senior counsel, from all the details particularly, the charge-sheet filed by the Gujarat Police which included even senior police officers as accused, there is no need for further investigation by the
23. If we analyze the allegations of the State and other respondents with reference to the materials placed with the stand taken by the
24. It is relevant to point out the letter of Shri V.L. Solanki dated 18.12.2006 seeking permission to interrogate Tulsiram Prajapati and Sylvester lodged in Udaipur Jail. With regard to the letter, Ms. Geeta Johri, Head of SIT, is alleged to have recorded that even she may be given permission to accompany the I.O. for interrogation. It was pointed out by the
If we compare the note and the above record of statement, it shows that each one is self contradictory, more particularly, the note seeks to interrogate the dead man. It also cannot be ruled out that the stand taken by the
25. Apart from the above vital information, it is useful to refer that even after the transfer of Sohrabuddin's case to the
26. Another important aspect is that on earlier occasions, Tulsiram Prajapti was produced before the Court in Ahmedabad through video conferencing and he was removed from jail on 27.12.2006 and produced before a Court, when ultimately, on 28.12.2006 i.e. the next day, he was killed.
27. According to the
28. Nayamuddin Shaikh, in his statement dated 19.02.2010, before the
29. The statement of Azam Khan dated 26.03.2010 indicates the manner in which the abduction of Sohrabuddin and Kausarbi was planned and executed. Azam Khan, in his statement had stated that he and Tulsiram Prajapati were lodged in Udaipur prison at which time Tulsiram Prajapati told him that on information given by Tulsiram Prajapati, Sohrabuddin, Kausarbi and Tulsiram were abducted from Hyderabad. Among the entire statement of Azam Khan, the relevant part is that Tulsiram Prajapati helped in tracking down Sohrabuddin.
30. Learned senior counsel for the
31. 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
32. As stated earlier, it is the specific claim of the State of Gujarat that they have conducted a fair and impartial investigation into the killing of Tulsiram Prajapati, however, analysis of the materials which we have already discussed show several lacuna on the part of the investigation by the State Government. It is relevant to point out that much before the incident dated 28.12.2006 which happened in village Chappri in Banaskantha District of the State of Gujarat in which Tulsiram Prajapati was allegedly shot in an encounter while he had opened fire on the police party, who was on the look out for him to apprehend him, after he had allegedly escaped from a running train while being taken back to Rajasthan from Gujarat where he was stated to be produced in a court proceeding, Tulsiram Prajapati lodged two complaints in written, one to the Collector, Udaipur and another addressed to the Chairman, NHRC, New Delhi expressing the apprehension that he is likely and going to be killed by Gujarat and Rajasthan police. In fact, on 28.12.2006, Tulsiram Prajapati has been killed in the fake encounter which has now being admitted to be a fake counter after a gap of 3 = years.
33. In Md. Anis vs. Union of India and Ors. 1994 Supp (1)
34. In another decision of this Court in R.S. Sodhi vs. State of U.P. & Ors. 1994 Supp (1)
35. In both these decisions, this Court refrained from expressing any opinion on the allegations made by either side but thought it wise to have the incident investigated by an independent agency like the
36. The above decisions and the principles stated therein have been referred to and followed by this Court in Rubbabuddin Sheikh (supra) where also it was held that considering the fact that the allegations have been leveled against higher level police officers, despite the investigation made by the police authorities of the State of Gujarat, ordered investigation by the
37. In view of our discussions and submission of learned counsel on either side and keeping in mind the earlier directions given by this Court, although, charge-sheet has been filed by the State of Gujarat after a gap of 3 = years after the incident, that too after pronouncement of judgment in Rubbabudin's case and considering the nature of crime that has been allegedly committed not by any third party but by the police personnel of the State of Gujarat, we are satisfied that the investigation conducted and concluded in the present case by the State police cannot be accepted. In view of various circumstances highlighted and in the light of the involvement of police officials of the State of Gujarat and police officers of two other States, i.e. Andhra Pradesh and Rajasthan, it would not be desirable to allow the Gujarat State Police to continue with the investigation, accordingly, to meet the ends of justice and in the public interest, we feel that the
38. The other question relates to submission of a report by the
a. In Vineet Narain (supra), this Court held as under: "In case of persons against whom a prima facie case is made out and a charge-sheet is filed in the competent court, it is that court which will then deal with that case on merits, in accordance with law."
b. In Sushil Kumar Modi (supra), this Court observed that the monitoring process in the High Court in respect of the particular matter had come to an end with the filing of the charge-sheet in the Special Court and the matter relating to execution of the warrant issued by the Special Court against Shri Laloo Prasad Yadav was a matter only within the competence of the Special Court so that there was no occasion for the High Court to be involved in any manner with the execution of the warrant. By relying on decision in Vineet Narain's case (supra), this Court reiterated that once a charge-sheet is filed in the competent court after completion of the investigation, the process of monitoring by this Court for the purpose of making the
At the outset, we may state that this Court has repeatedly emphasized in the above judgments that in Supreme Court monitored cases this Court is concerned with ensuring proper and honest performance of its duty by
39. In view of the above discussion, the Police Authorities of the Gujarat State are directed to handover all the records of the present case to the
40. It is made clear that any observation made in this order is only for the limited purpose of deciding the issue whether investigation is to be handed over to the
.................................................J. (P. SATHASIVAM)
..............................................J. (DR. B.S. CHAUHAN)
APRIL 08, 2011.