IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION No. 1925 of 2010 With CRIMINAL MISC.APPLICATION No. 13714 of 2011 With CRIMINAL MISC.APPLICATION No. 16339 of 2011
For Approval and Signature:
HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/
HONOURABLE MR.JUSTICE J.C.UPADHYAYA Sd/
========================================================= 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 ? 1 & 2: YES; 3 to 5 NO =========================================================
BHIKHALAL KALYANJI JETHAVA - Applicant(s)
Versus
STATE OF GUJARAT & 5 - Respondent(s)
=========================================================
Appearance :
MR BB NAIK Sr Advocate with MR AJ YAGNIK , MR NAYAN D PAREKH, MR PARTHIV A BHATT for Applicant : 1, MR PRAKASH JANI PUBLIC PROSECUTOR for Respondents : 1,3 - 6.
DELETED for Respondent : 2, =========================================================
CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA
and
HONOURABLE MR.JUSTICE J.C.UPADHYAYA
CAV JUDGMENT
Date : 25/09/2012
(Per : MR.JUSTICE D.H.WAGHELA)
1. The petitioner has primarily prayed to transfer to the Central Bureau of Investigation (CBI) or Special Investigation Team (SIT) investigation of the murder of his son, who was the petitioner in a public interest litigation, being SCA No.7690 of 2010 directed against illegal mining, and an RTI activist. The petition was initially listed before learned single Judge, as per the roster, and then, by order dated 14.10.2010, referred to the division bench [Coram: S.J.Mukhopadhaya, C.J. (as His Lordship then was) and K.M.Thaker, J.], who had taken cognizance of investigation into killing of the petitioner, in the public interest litigation pending before it. The division bench, however, opined in order dated 21.12.2010 that it was not desirable to tag this case with the PIL “as criminal case can independently be gone through, even it is found that Mr.Amit Jethava was murdered because of the public interest litigation”. For that reason, the bench was of the view that this case should be heard independently, but, in view of the fact that the matter was referred for hearing by a division bench, it was ordered to be placed before a division bench hearing criminal matters. Thereafter, the matter was placed before several other division benches and ordered by the Hon'ble Chief Justice to place it before this bench. During the course of intermittent hearing and upon prima facie some substance having been found in the grievances of the petitioner against the investigation carried out till then, following interim order dated 19.10.2011 was made:
“1. Even as arguments are being heard for final disposal of the petition and learned senior advocate Mr.B.B.Naik, appearing with learned counsel Mr.A.J.Yagnik, has practically concluded his arguments and even submitted written submissions, hearing could not be concluded on account of difficulties on the part of learned A.P.P. and non- availability of learned Public Prosecutor on account of his sickness. It was, however, submitted, on instructions, for the respondents that the investigating agency has by now already submitted two chargesheets and it is clearly mentioned in the chargesheets that investigation is continued under the provisions of Sec.173 (8) of Cr.P.C. It was also submitted on behalf of the respondents that the investigating agency would have no objection to taking into account the grievances voiced by the petitioner and the lapses pointed out by learned counsel for the petitioner. Therefore, although the allegations made by the petitioner are not admitted and it is not conceded that the investigation is in any way defective or truncated, the investigating agency would have no objection to carrying out further investigation under the supervision of Special Commissioner of Police, Crime Branch, of the rank of Additional Director General of Police, and submit final report of investigation within a time-frame, i.e. latest by 28.11.2011. It was fairly stated by learned Public Prosecutor that further investigation under the supervision and direction of the highest officer available in the State for the purpose will be carried out keeping in view the averments made in the petition and lapses, if any, pointed out by learned counsel for the petitioner during the course of arguments.
“2. In the above facts and in view of the investigation being continued, subject to the statements recorded hereinabove, it would be appropriate to adjourn hearing to 29.11.2011 on which date final report of investigation shall be placed before this Court, so as to finally hear and dispose the petition with appropriate orders. In the meantime, it would be open for the State Government to substitute or appoint an officer of the rank of Class-I or IPS for the purpose of carrying out further investigation so as to inspire confidence and leave no loopholes in the investigation. It is needless to clarify that the above arrangement is worked out without prejudice to the rights and contentions of the parties on both sides. S.O. to 29.11.2011. Direct service.”
Pursuant to the above order, further investigation was carried out and the action taken report was submitted with the affidavit dated 10.01.2012 of Superintendent of Police Mr.R.Vatsa. Thereafter, arguments of learned counsel and learned Public Prosecutor were heard in extenso and the judgment was reserved for consideration on 17.08.2012.
2. The son of the petitioner, namely Amit Jethava, was fired upon at around 08.40 p.m. on 20.7.2010 on the public road, just opposite the High Court and near the corner of “Satyamev Complex” wherein is the office of Bar Council of Gujarat; and two assailants were stated to have made good their escape, leaving their motorcycle on the spot. Mr.Indrajitsinh H. Vaghela, an unarmed police constable for the time being serving at Sola High Court Police Station, after his duty hours were over at 08.00 p.m., had gone with his friend for tea and refreshment in a parlour in “Satyamev Complex” and, upon hearing the sound of firing from the corner of the building, they rushed to the spot alongwith six-seven other people and found there the victim lying on his back with blood all over and a motorcycle lying near his leg, according to the FIR lodged by the constable and registered at 22.06 hours as I- C.R.No.163 of 2010.
2.1 According to the averments made on oath, the petitioner's case is that, from 20.7.2010 to 15.8.2010 the investigation was carried out by Police Inspector of Sola Police Station and thereafter, by order dated 15.8.2010 of the Commissioner of Police, Ahmedabad City, the investigation was transferred to the Detection of Crime Branch (DCB), Gaekwad Haveli, Ahmedabad City, without any reason being assigned. The prime suspect for the offence was Shri Dinubhai Boghabhai Solanki (for short, “Mr.DB”), who is a Member of Parliament from Junagadh constituency and belongs to the party in power in the State, and he is a relative of the Finance Minister of the Government of Gujarat. Although several persons had given statements to the police categorically stating that Mr.DB had got the victim killed, he was not once interrogated nor was any effort made to ascertain his role in the offence. Even when the investigation progressed, it stopped at the arrest of his nephew Mr.Shiva alias Pratap Solanki, who did not have any animosity with the victim, according to the petition. The investigation carried out till filing of the petition revealed that an amount of Rs.15 lacs was given to contract killers and failure of the investigating agency in not proceeding further beyond Mr.Shiva Solanki was a conscious exercise suggesting that the investigation was not impartial and free from outside influence, according to the petition.
2.2 It is alleged in the petition that in Kodinar taluka of Junagadh district, several police complaints and FIRs for serious offences, including attempt to murder and murder, have been registered against Mr.DB as also in respect of the offences committed at the behest of Mr.DB, but all such complaints and FIRs have culminated into summary reports, excepting in one case. Copies of several such FIRs and summary reports are annexed to the petition (at pages 34 to 267) as Annexure-C.
2.3 On 02.8.2010, order, as under, was made by Division Bench in the pending PIL, being SCA No.7690 of 2010:
“ORAL ORDER
(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)
Learned counsel for the petitioner submits that after filing of the present writ petition and issuance of notice on the newly impleaded respondents, petitioner Amit B. Jethava was shot dead by some miscreants on 20.7.2010, when he was coming out from the chamber of the counsel.
Counsel prays for and is allowed to substitute a co- villager or one of the family members as petitioner to pursue the matter.
Mr Vinod Patel, counsel appearing for 9th and 10th respondents is allowed two weeks time to file reply affidavit giving details of survey numbers in which mining activities are going on. State will also file an affidavit giving all such details and enclose copy of the mining lease, if any, issued in favour of 9th and 10th respondents.
State will also inform the Court by filing a separate affidavit as to what action is taken in the FIR lodged after death of the original petitioner. Post the matter on 23.8.2010 in the First Board.”
(emphasis supplied) According to the petitioner, only after the above order the investigating agency became active and arrests were made. It is alleged that arrest and implication of Mr.DB was likely to disturb many equations among the police, bureaucracy and Ambuja Cement Company and those involved in illegal mining and would have far reaching negative impact on those vested interests. It was also likely to disturb political dominance of the ruling party in the district of Junagadh and the surrounding district in view of the coming elections of panchayats and local authorities and hence the investigating agency might not independently and impartially investigate the matter, according to the petition. It is also alleged that the DCB, Ahmedabad City to which the investigation was transferred is known more for fake encounters, including that of Sohrabuddin, Samirkhan, Sadiq Jamal and Isharat Jahan and others.
2.4 Relying upon detailed written communication dated 15.11.2003 of the Deputy Commissioner of Police, Junagadh to the Director General of Police, Gujarat, communication dated 03.11.2003 of the Police Superintendent to the District Magistrate and Collector, Junagadh and fax message dated 10.01.2003 of the Superintendent of Police to the DIG and Home Secretary (pages 270 to 281), it is averred that specific instances of involvement of Mr.DB in illegal and underground activities, besides his actions to perpetuate his dominance and hegemony also over the local police, have come to light. It is further alleged that with the same power and clout, Mr.DB went much beyond the borders of Junagadh district after he became an MP. It is also alleged that former minister of State for Home was a guest of Mr.DB at the relevant time.
2.5 The petitioner has also averred that his son was an environmentalist and RTI activist known for filing public and environmental interest litigations and had earned reputation of a crusader at the age of 34. The last PIL filed by him was on the subject of rampant and large scale illegal mining within the prohibited area within 5 kms. of the periphery of Gir forest and, by order dated 07.7.2010 in that petition, notice was ordered to be issued to Mr.DB and his nephew Mr.Shiva Solanki; and before the next date of hearing, the murder was committed by unidentified persons in such manner that the victim died on the spot. Even after two months thereof, the investigating authority had not interrogated Mr.DB while several statements stating that it could only be Mr.DB who could have the victim killed, were already recorded. Copies of the applications and representations made by the victim to several authorities against encroachments and illegal mining in the forest area and the wild life sanctuary are annexed to the petition as Annexure-E (at pages 282 to 366).
3. It is also alleged that, in the past also, the victim was brutally attacked at the behest of Mr.DB, seriously wounded and several complaints and representations were made by him to the competent authorities.
3.1 By amending the petition, it is, inter alia, submitted that DCB, Ahmedabad has submitted on 10.11.2010 chargesheet for the offence, disregarding the statements of four family members of the victim and without investigating into the specific allegation made in those statements about threats to the victim. It is alleged that, in order to establish involvement of the accused named in the chargesheet, the DCB has placed on record mobile phone call details of the accused, but the investigators have been completely silent about the mobile call details of Mr.DB and no effort is made to find out his involvement. It is further alleged that Mr.Anand Yagnik, learned advocate practicing in the Gujarat High Court had also given his statement to the investigating officer, before the investigation was transferred to DCB, but while taking down his statement on 23.7.2010, Police Inspector Mr.Kundaliya of Sola Police Station had made certain modifications and variations. Even such statement does not form part of the chargesheet, which spoke for itself about partiality of the investigation carried out by DCB. The statement of Mr.Anand Yagnik is stated to have been to the effect that the deceased had met him one day before his death and specifically expressed his serious apprehension with regard to impending threat on his life from Mr.DB. It was insisted for the petitioner that the statement of Mr.Yagnik was required to be treated as a dying declaration and investigation and prosecution ought to have been based thereon.
3.2 A copy of the entire set of papers and orders in the PIL, i.e. SCA No.7690 of 2010 filed by the victim, has been placed on record and referred to show that Mr.DB and Mr.Shiva Solanki were newly joined therein as respondent Nos.9 and 10 and prayers were made therein to stop illegal mining within 5 kms. of the Gir Sanctuary and to direct the respondent authorities concerned to constitute a high level committee to enquire into illegal mining as also to direct respondent No.8, electricity company, to disconnect electric connections of all the illegal miners. The last order in the life time of the victim, i.e. order dated 06.7.2010 which was made by Division Bench of this Court in SCA No.7690 of 2010, read as under:
“ORAL ORDER (Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) The petitioner is allowed to file supplementary affidavit and give details of survey number in which illegal mining is alleged to be going on. The petitioner may also state whether such survey has been notified as “Forest” by the State.
The petitioner is allowed to implead Mr. Dinubhai Boghabhai Solanki and Mr. Shiva @ Pratap Hamirbhai Solanki, with their respective addresses, as the respondents no. 9 and 10.
Let notice be issued on newly impleaded respondents no. 8, 9 and 10. Direct service is permitted. Learned counsels Mr. P.K Jani and Mr. Chhaya have already appeared on behalf of respondent nos. 2 to 7 and respondent no. 1 respectively. Notice is waived by them.. They may file their respective reply affidavit within two weeks.
Post the matter on 2nd August, 2010. Pendency of this case shall not stand in the way of the State authorities to take immediate measures to stop illegal mining, if going on in the area. Copy of this order be handed over to learned GP Mr. P.K Jani.”
4. On the basis of the above facts, circumstances and allegations, it was submitted for the petitioner that the investigation carried out by the local police could not inspire confidence and it was in fact carried out in violation of several provisions of the Cr.P.C. and established legal principles. It was also submitted that further investigation during pendency of the petition and pursuant to the aforesaid order dated 19.10.2011 had served no purpose at all, insofar as it has been conducted under supervision of the same higher officer and has not unearthed any material leading to explaining the whole conspiracy and the role played by individuals other than the persons already accused in the charge-sheet filed, as aforesaid.
5. It was clear from the averments and allegations as aforesaid that the main grievance of the petitioner revolved around one of the main suspects in the conspiracy to kill the deceased being not even duly interrogated or named even as a witness in the chargesheet, although he was named immediately as prime suspect in several statements of the witnesses, including an advocate of this Court. It was, therefore, put to learned counsel for the petitioner that in such a case, why that person was not joined as a party respondent, in view of several recent decisions of the Apex Court, including Venkatasubramaniam v. M.K.Mohan Krishnamachari [(2009) 10 SCC 488], State of Punjab v. Davinder Pal Singh Bhullar [2012 Cri.L.J. 1001] and Divine Retreat Centre v. State of Kerala [(2008) 3 SCC 542]. However, relying upon the observations made by the Apex Court in those judgments, in the peculiar facts of the case, and in several other judgments, it was submitted for the petitioner that joining any particular person suspected of contributing to a capital crime was neither necessary nor desirable as even a person already accused cannot have any say in the matter of investigation and the petitioner mainly relied upon abundant evidence of a faulty, illegal and evidently biased investigation in such serious case wherein a petitioner before this Court was eliminated for boldly fighting a legal battle for a public cause. It was also submitted that every citizen has a fundamental right to seek and secure justice by due process of law. The investigating agency having failed in its primary duty of properly investigating a crime and in following the basic rules and express provisions of law, transferring the investigation to an agency which is not under control of the State Government was necessary, according to the submission. In view of these submissions, it would be necessary to cull out and analyse the salient defects pointed out by the petitioner and apply the law to be discussed thereafter.
6. Before embarking upon examination and analysis of the investigation carried out by, by now three investigating agencies, it would be pertinent to allude to the stand of the respondents. The respondent State authorities have preferred not to file any affidavit-in-reply to the petition. However, affidavit of Superintendent of Police Mr.Vatsa, who was entrusted further investigation after order dated 19.10.2011, and the charge-sheet have been relied upon for the respondents and submissions have been made on that basis to oppose the petition. It is averred by Mr.Vatsa that he has taken into consideration the directions contained in the order dated 19.10.2011 and has personally carried out the investigation with the assistance of a team of seven other officers. He had continuously briefed and informed his supervisory officer Mr.Mohan Jha, Special Police Commissioner, Crime Branch, Ahmedabad and he had also contacted learned advocate Mr.Anand Yagnik and Mr.Kanaksinh Parmar, who happened to be independent witnesses in the case. He has also stated that during his investigation and interrogation of all persons, he has not found any person to be involved, other than the accused persons already arrested and charge-sheeted. While submitting progress report of his investigation, he has, inter alia, stated that mobile call details of the mobile phone of Mr.DB could not be obtained from MTNL, Delhi as more than one year had already elapsed. As for registering complaint of a police constable, rather than any available member of family of the deceased, he reported that the initial investigation was undertaken by Mr.H.M.Kundaliya, Police Inspector, Sola High Court Police Station, according to whom, as no such family member was present at the place of offence, complaint of the police constable was registered as FIR “under guidance of higher officers who were present”, even as a call was received on the mobile phone of the deceased from his brother stating that he was rushing to the police station. He is further stated to have found that, in the year 2007, Mr. DB had already handed over possession of the land for which information was sought by Mr.Amit Jethava (deceased) from the department in the year 2010. He had not found any material against Mr.DB to connect him with the crime in question. He had taken statements of all persons of the places where the accused persons had met, including the hotel staff of the places where the accused persons had met and conspired to commit the offence. He had specifically asked the witnesses regarding presence of either Mr.DB or any persons related to him, but did not find any material against Mr.DB. He had collected call details of all five mobile phones of Mr.DB of last one year and had taken statements of all the persons who had contacted Mr.DB during night hours, i.e. from 10.00 p.m. to 04.00 a.m., but had not found any material against him. He had also verified and analysed the call details of all the accused persons and found that, except Mr.Shiva Solanki, no other accused persons had ever contacted Mr.DB. It is submitted on oath that Mr.Shiva Solanki is the nephew of Mr.DB and, therefore, no adverse inference could be drawn against Mr.DB on the basis of those call details. He also analysed call details of the mobile phones with the help of experts in the field on the software which is called “Lakshya”, but did not find any information from which it could be safely inferred that Mr.DB was involved in the offence. He had also enquired into the criminal background of Mr.DB and found that nine criminal cases, since the year 1989 to 2005, were registered against Mr.DB, out of which, in two cases for the offences under sections 307, 395 and 332 etc., the offence was not proved against him and, in one case for the offence under section 506 (2), summary report filed by the police was accepted. In the remaining seven criminal cases, summary report was submitted by the police but as yet not accepted by the Court and only two cases for the offence under sections 143, 147, 148 etc of IPC were pending as Criminal Case Nos.486 of 2006 and 505 of 2007.
6.1 It may be noted here that in none of the cases mentioned by the deponent Superintendent of Police in a chart, deceased Amit Jethava is a complainant, whereas a complaint (FIR) of the deceased, registered as I-C.R.No.36 of 2008 for the offence involving Mr.DB, is also annexed with the affidavit of the Superintendent of Police, with the statement of the deceased and the summary report of the investigation officer under section 173 of Cr.P.C. wherein in the column of “Name and address of the accused”, it is mentioned: “6/7 unknown persons”. It may also be noted here that the complaint alleged offences under sections 147, 148, 149, 341, 323, 504 of IPC and section 135 of Bombay Police Act; and the allegation was that the deceased was badly beaten, while the assailants had said that he had come in the way of Mr.DB at the time of elections to the Legislative Assembly.
6.2 It is submitted in writing for the respondents that:
“The investigating officer has also investigated into the allegations regarding financial condition of Mr.Shiva Solanki is not such that he can give supari of Rs.11 lacs to other accused. As per the investigation, the investigating officer has found that accused Bahadursinh is having a mango farm and every year he is getting an income of Rs.18 to 20 lacs out of that. Moreover, Mr.Shiva Solanki was also a partner in Rajmoti Movers, Rajmoti Roadways and a petrol pump. That upon inquiry with his chartered accountant, the investigating officer has found that Mr.Shiva Solanki has sufficient source of income to provide the supari killing”.
It is also contended in the written submissions that upon investigation, the investigating officer has also found that not a single piece of land is given by the authorities to Mr.DB for the purpose of mining. It is again submitted in writing that when the incident had taken place, the complainant, who is a constable serving in Sola Police Station, was there at the place of incident and that he was also an eye witness to the entire incident. He being a police officer, the complainant had taken prompt action by cordoning the place and thereafter he informed the Police Inspector, Sola Police Station. That since the incident had taken place opposite the Gujarat High Court, which is a sensitive place with regard to security, the Police Inspector concerned had thought it fit to inform the higher officer so that necessary actions could be taken immediately.
6.3 As for recording statement of Mr.DB at a very late stage, it is submitted that: “It is the general method of police investigation that, before calling any witness or suspect, the police authority tries to collect as much evidence against the suspect and then summarizes the proposed questions, so that all the necessary questions can be asked to that witness or suspect in connection with the crime”. In the present case, the investigating officer had tried to collect material against Mr.DB, but incriminating material was not found. Since collection of all possible evidence had taken time, statement of Mr.DB was recorded late, according to the submission.
6.4 Even as no further or supplementary or summary report is stated to have been filed even after the aforesaid order dated 19.10.2011, the criminal case as it stands today against the persons originally shown as accused persons in the Charge-sheet No.158 of 2010 dated 10.11.2010 remains that the six accused persons named therein had committed the offence punishable under sections 302, 201 and 120-B of IPC and under sections 25 and 27 of the Arms Act. There is no denying the fact that the murder was committed as a part of the alleged conspiracy in which nephew and partner of Mr.DB, namely Mr.Shiva Solanki, is alleged to be fully involved.
7. By filing an affidavit of the petitioner, during the course of hearing, it is averred that report of Superintendent of Police Mr.Vatsa clearly suggested that further investigation was carried out to substantiate the earlier investigation with excessive bias in favour of Mr.DB. It is stated on oath that Mr.Vatsa has not annexed with the report the documents received by him from the government offices in the districts of Junagadh and Amreli and they are not supplied to the petitioner in spite of specific written demand therefor. It is submitted that those documents were most essential as they would go to the root of the crime and throw light on illegal activities of the suspected persons. It is alleged that the documents submitted by the deceased in the PIL, being SCA No.7690 of 2010, the documents submitted by the witness Mr.Kanaksinh and family members of the deceased, the representations made by the deceased to several authorities including the Hon'ble Chief Minister, the Home Secretary, the DGP, the S.P., Junagadh, in his own name and under the banner of “Gir Nature Youth Club and Zilla Mahiti Sangh” and the applications made by the deceased under the Right to Information Act, put together, were enough to establish that the crusade against Mr.DB and his illegal empire by the deceased was the cause for his murder at the instance of none other than Mr.DB. It is also averred that while the record of telephonic talk, before and after the murder, between Mr.Shiva Solanki and Mr.DB, was available, it was not investigated as to what transpired between them or what was discussed at that time. That was another example of incomplete and perfunctory investigation with a pre-set mind, according to the affidavit. It is further averred by the petitioner that, whereas the investigating officer Mr.Vatsa stated that there were only ten FIRs registered against Mr.DB, the petitioner has placed on record 20 FIRs starting from the year 1989 to 2009, involving Mr.DB; and almost in each of the FIRs, Kodinar Police Station has submitted summary reports, whether it was for rioting, attempt to murder, dacoity, threat to life, simple injury, serious injury, with or without offences under the Arms Act, or under the Bombay Police Act and the Atrocities Act. It is further stated that in the offence involving attack on the present MLA from Kodinar Mr.Dhirsi Barad and his family members, the victim has subsequently died and the trial against the accused including Mr.DB is pending. It is also alleged that pursuant to the FIR registered as C.R.No.36 of 2008 for brutal attack on the petitioner's son, he had left Junagadh and Amreli districts and started residing in Ahmedabad City. It is submitted that the investigating officer concerned has never approached the petitioner or the wife of the deceased for any assistance in connection with that offence. It is also alleged that learned advocate Mr.Anand Yagnik and witness Mr.Kanaksinh Parmar have come forward to file their affidavits with respect to the investigation and the investigating officer Mr.Vatsa has made statements just to discredit their statements. Statement of learned advocate Mr.Anand Yagnik was not recorded in his presence and read over to him; and there are four other witnesses who have categorically stated that their statements were not recorded by investigating officer Mr.Vatsa and his team in their presence and were not read over to them, according to the affidavit.
7.1 Learned advocate Mr.Anandvardhan Yagnik has filed his own affidavit to state that the statements involving his father, made by Mr.DB before the investigating officer in charge of further investigation, were contrary to the facts and was a malicious endeavour to attribute motives to his statement. He has submitted point to point replies to the allegations made against his father and stated on oath that neither his father known as Shri Achyut Yagnik nor he himself has any enmity or grudge against Mr.DB and there has been no interaction with Mr.DB at all. He had given his statement on 22.7.2010 not at the instance of his father but on the basis of what he was personally communicated by the deceased outside his Chamber No.307 within the High Court premises, according to his affidavit.
7.2 After reading the affidavit of Mr.R.Vatsa, witness Mr.Kanaksinh Parmar has stated on oath, inter alia, that Mr.Vatsa and his team had not asked any question to him with regard to the statement of Mr.DB or the so-called controversy surrounding an education trust and the school run by that trust through his elder brother. On his own, he had stated in his statement dated 11.02.2012 that, in the facts stated in the affidavit, the investigating officer Mr.Vatsa and his team had not made sincere efforts to find out the truth in the allegations made by Mr.DB in his statement before the investigating officer, which showed that the investigating officer had more trust in Mr.DB than anyone else. Both the independent witnesses, namely learned advocate Mr.Anand Yagnik and Mr.Kanaksinh Parmar, have annexed to their affidavits voluminous relevant documents to show that the allegations being made against them by Mr.DB were false and baseless.
7.3 Lastly, similar affidavits of learned advocate Shri Anand Yagnik, Shri Dilip J. Kataria, Shri Dharmendra R.Gohil, Shri Bharatkumar V.Kamlia and Shri Yusuf B.Juneja, which are executed in May 2012, are filed to state on oath,, inter alia, that they were associated with deceased Shri Amit Jethava and knew him as an RTI activist, who was threatened by Mr.DB and, more importantly that their statements were not duly, properly and accurately recorded either during the initial investigation or during the further investigation. They have made specific averments on oath that the statements recorded in their name, even during the course of further investigation by Mr.Vatsa or members of his team, were omitting several direct allegations made by them and that those statements were not read over to them. It may not be proper or necessary to reproduce in detail the averments made in those affidavits inasmuch as the affidavits have been submitted at the fag-end of the hearing obviously with a view to substantiate the arguments that further investigation was carried out only as a formality and it was not an honest effort to discover any new material or fresh evidence. The fact, however, remained that the further investigation after the order dated 19.10.2011 of this Court, in the face of the contentions contained in the petition and the issues raised since filing of the petition, failed to make any difference to the result of the investigation.
8. Against the above backdrop of facts and material on record, it was submitted for the petitioner that the investigation was dishonest and directed in a pre-planned manner as indicated by the defects and salient lapses pointed out on behalf of the petitioner.
9. Examining the investigation in light of the submissions made by learned counsel and learned public prosecutor, the following salient features emerge for consideration and for deciding whether further investigation by an outside agency is required to be ordered.
(a) Prima facie, the deceased son of the petitioner was an RTI activist and sole petitioner in the PIL, being SCA No.7690 of 2010, wherein two persons were, recently before the murder, joined as respondents and one of them is already accused of the offence under sections 302 and 120-B of IPC. It is nobody's case that the deceased victim of the offence was a blackmailer or a busybody. Instead, there is sufficient material suggesting that he was in the activity of inculcating public awareness about environmental issues and taking legal remedies for preventing environmental degradation, particularly in and around the reserved forest and Gir Sanctuary.
(b) According to the FIR registered as I-C.R.No.163 of 2010, the deceased was killed at 20.40 hours on 20.7.2010 and the FIR was registered at 22.06 hours. The FIR itself mentioned address of the deceased and his mobile phone was also found on the spot. However, no effort was made to either inform any member of his family available nearby or call them to the police station before registration of the FIR through a police personnel. Those facts naturally strengthen the suspicion that any relative or acquaintance of the deceased was deliberately prevented from naming anyone even as a suspected perpetrator of the crime in the FIR itself. Undisputably, name of a person as a suspect in the FIR would be one of the decisive factors for many purposes throughout the investigation and trial.
(c) It was also noticed upon bare reading of the FIR that it was registered under the guidance and advice of higher officers who were present at the police station. According to the statement of Mr.H.M.Kundaliya, the Police Inspector of Sola Police Station, identity of the deceased was immediately known on reaching the scene of offence and he had informed the higher officers. And the Police Commissioner, the Deputy Police Commissioner, Zone-I, the Joint Police Commissioner, the Deputy Police Commissioner (Crime) and the Police Inspector of Crime Branch had also immediately arrived at the police station and those officers included Shri Mohan Jha, Special Police Commissioner, Crime Branch, Ahmedabad. It is also stated by Mr.Kundaliya that he had taken over the investigation and conducted it till 16.08.2010 when the investigation was ordered to be transferred by order of the Police Commissioner. The order to transfer the investigation does not mention any reason and it is dated 15.08.2010, a national holiday. As noticed from the affidavit of Superintendent of Police Mr.Vatsa, even during the further investigation, he was required to continuously brief and inform Mr.Mohan Jha as his supervisory officer and Special Police Commissioner, Crime Branch, Ahmedabad. It could be argued, on that basis, that Mr.Mohan Jha continued to guide and control even the further investigation under the order of this Court and, therefore, it was unlikely that any new line of investigation could be pursued which might affect the charge-sheets already submitted.
(d) While Mr.Kundaliya was in charge of the investigation, statements of father, wife, brothers, mother and friends of the deceased were recorded and specific names of the suspects were repeatedly mentioned therein, but no arrests were made and the investigation did not appear to have made any progress. It was only after the afore-
mentioned order dated 02.08.2010 in the PIL, then pending before this Court, and the order transferring the investigation that arrests were made. However, although name of Mr.DB was mentioned as the main suspect in at least 8 statements recorded till then and threats received by the deceased were also mentioned, he was neither approached for interrogation nor was any notice issued under section 160 of Cr.P.C. till 15.9.2010.
(e) By the time Mr.DB was called for recording his statement on 16.09.2010, the other persons whom the police found to be involved in the offence were already arrested, except two persons one of whom was alleged to have actually fired upon the deceased. That person, namely, Shailesh Pandya, was arrested by a transfer warrant on 20.11.2011 from the custody of Mumbai police by whom he was already arrested in connection with other offence. However, long before that, upon the very first arrest of Bahadursinh Dhirubha Vadher on 16.8.2010, it was admitted in his own statement recorded by Mr.Kundaliya that he had arranged for the funds for contract killing of the deceased and that Mr.DB was not involved in the conspiracy. Thus, the progress of investigation clearly indicated that the investigators were relying more upon the statements of the arrested person than the statements recorded earlier of the relatives and acquaintances of the deceased. Even while filing the charge-sheet, statements dated 22.7.2010 and 28.7.2010 of independent and important witnesses, such as, learned advocate Mr.Anand Yagnik and Mr.Kanaksinh Parmar respectively were not annexed with the charge-sheet.
(f) It is noted in the case diary on 20.08.2010 that the news about the police being in search of Shiva Solanki were leaked in advance and it being spread through media and being telecast, he could not be located in spite of enquiring through very secret sources and informants. That was the stage of investigation when it was transferred to and taken over by DCB on 16.08.2010 and on that very day one of the main accused persons, namely, Bahadursinh D.Vadher, was arrested and had practically dictated in great detail his motive, plan, execution and sufficiency of resources for arranging the elimination of late Shri Amit Jethava – without ever mentioning the name of even Shiva Solanki. He had admitted that he was working with the police department since 1999 and was posted at Gir Gadhada Police Station as wireless-set operator since last six months, had bought two mines in partnership with others and realized that mining at the said mines was illegal and hence had not started the mining. Thereafter, his statements were recorded everyday from 18th to 30th August, 2010. During the course of such custodial interrogation, it was on and from 19th August that he added that he had decided with Shiva Solanki to kill Amit Jethava for which Shiva was to provide the money. And in his statement of 29.8.2010 he stated that the account with Shiva could not be settled as he was already arrested before such settlement. Although nothing can be treated or held to be proved at this stage, the sequence of events and the statements clearly indicated that even the name of Shiva Solanki was being introduced in a careful and planned manner with leakage of sensitive information for the public including others involved in the offence. When Shiva Solanki was arrested on 07.09.2010, his statements with a matching version were recorded everyday from 07.09.2010 to 20.09.2010 with details of his decision and understanding with Bahadursinh to kill Amit and of his own motive and resources; but not once did these accused persons appear to have been asked one question about involvement of Mr.DB. Instead, Shiva is stated to have clarified that, no one else was informed about his understanding with Bahadursinh. During the course of such interrogation, Mr.DB was learnt on 15.9.2010 to be visiting Ahmedabad and then notice was issued to him under section 160 of Cr.P.C., according to the case diary. Then on 16.09.2010 his statement was recorded wherein he claimed not only complete innocence but ignorance about even the activities of Amit Jethava and difficulties caused to him. He in fact urged for independent and deeper probe of the offence. This line of interrogation substantiates the submission that the investigating agency was following the clues offered by the arrested persons rather than the other independent or interested witnesses.
(g) The statement of Mr.DB recorded after apparently solving the mystery of the murder clearly appeared to be an empty formality at the convenience and invitation of Mr.DB. A fair, proper and prompt investigation in case of such a crime, by an ordinary police officer, would have inspired immediate custodial interrogation of the prime suspects; but in the facts of the present case, the investigating officer practically remained clueless for first 25 days after the murder and then suddenly, with first arrest and first statement of the arrestee on the first day of investigation, the case was practically solved. How that first arrestee, not named till then by any witness or in any statement recorded till his arrest, was identified as a suspect and arrested on 16.08.2010 itself after the order to transfer the investigation, is not clear. By a curious co- incidence, the complainant who dictated the FIR under supervision of so-many higher officers and the first arrestee who offered complete solution to the investigating agency in his first statement before a special branch of the police, both happened to be serving police personnel under the higher officers under whom the investigation could otherwise hardly make any headway for 25 days. At both important points of registering and cracking the case, the common factor also was the same higher officer Mr.Mohan Jha, then in- charge of City Crime Branch. He also supervised the further investigation as Special Commissioner of Police, Crime Branch, by virtue of a special order issued in that regard by the Director General of Police. It has also transpired during the investigation that Shailesh Pandya, who is alleged to have actually fired upon the victim, had not returned to Sabarmati Jail after obtaining temporary bail in February 2010 and hence his illegal freedom was at the mercy of the police. That was sufficient to substantiate the submission that the State police was controlling the investigation rather than carrying it out in a fair, impartial and prompt manner. These factors also lend credence to the allegation that the accused persons and prime suspect had such influence in the higher echelons of police-power, that the officers of the lower ranks would not dare to displease them.
(h) During the course of further investigation after direction of this Court, the chief investigating officer Mr.Vatsa is stated to have taken further statements of the witnesses. Thereafter, an application was made by him for custodial cross interrogation of several accused persons for the purpose of ascertaining the role of Mr.DB. In that application dated 07.12.2011, it was specifically mentioned by Mr.Vatsa that Bahadursinh was interrogated from 16.8.2010 to 30.8.2010 while he was in police custody, whereas Shiva Solanki could be arrested only on 07.9.2010 after absconding for 45 days, while the progress of investigation was required to be reported to the High Court in the PIL which was then pending. Thus, according to the application, Shiva Solanki was aware about the investigation and as that accused is well educated, very clever and knowing the law as also having political influence, he had not disclosed full details of the conspiracy and hence custodial cross interrogation of Shiva Solanki and Bahadursinh was required to collect evidence in respect of other persons involved in the offence. That application was rejected by the Court by a cryptic order and then opinion of Public Prosecutor was sought by Secretary of the Department of Law. Learned Public Prosecutor concerned opined in writing on 19.12.2011 that it would not be proper to challenge the order of the trial court because charge-sheet was already submitted against all the accused persons who were already arrested and no other accused person remained to be arrested. He also noted the fact that the application for remand was rejected as no reasons were made out at that stage and the application was not maintainable. In the opinion of the Public Prosecutor, it was an absolutely reasonable and legal order and it did not deserve to be challenged. Thus, in short, even the feeble attempt made at proper further investigation was stopped by a presumptive opinion of learned Public Prosecutor that “all the persons who were charge-sheeted were already arrested and no other accused person was remaining to be arrested.” The averments made by Mr.R.Vatsa, who conducted the further investigation, as related in para 6 herein, did not inspire confidence insofar as close proximity of Shiva Solanki and Mr.DB and their interaction inter se before and after the crime , even to the extent discovered during the investigation, would have led an honest investigation to conclusions and inferences quite contrary to those drawn by the officer. He only made a weak attempt at proving his sincerity by applying for custodial interrogation of some of the accused and that attempt was simply smothered by the opinion of the District Government Pleader, as aforesaid.
(i) Where no one appears to be an eye witness to firing upon the deceased, not only identity of the persons alleged to have assaulted the deceased, but identity of the persons who would have strong motive for eliminating the deceased ought to have been fully and properly investigated. Instead, the investigating agency relied mainly upon statements of the persons who were already arrested and practically stopped at them in spite of the order for carrying out further investigation in light of the averments and allegations made in the petition. It has come on record that Mr.Shiva Solanki and Mr.DB were living together in a joint family and no investigator could have been easily satisfied with the statements that they did not interact in respect of the conspiracy to commit a capital crime, particularly when both of them were simultaneously joined as respondents in the PIL.
(j) The statements recorded during the course of further investigation have been disputed by the witnesses by filing affidavit before this Court to state that their statements were not correctly or accurately recorded. If that is true, even the further investigation was not fair and bona fide. The incorrect statements made by Superintendent of Police Mr.Vatsa regarding past record of Mr.DB, as seen and discussed earlier in para 3 herein, clearly indicated an attempt at somehow shielding the person who was the prime suspect,according to the statements of the relatives and associates of the deceased.
(k) The mobile phone of the deceased victim recovered from the scene of offence was stated in the statement of his father to be containing record of threats received by the deceased. The inquest panchnama made at 24.00 hours on 21.7.2010 recorded recovery of the mobile phone without mention of any cover, but on 22.7.2010 there is shown recovery of a black-colour mobile cover having stains of blood, both inside and outside. When the mobile phone was sent to DFS, Gandhinagar on 08.12.2011, after the order of this Court for further investigation, it was stated to be in the transparent plastic box sealed with the marks : “S.P. S.N.R.”, rather than the sign of any investigating officer of the Sola Police Station or the Crime Branch of Ahmedabad City. If the mobile phone were deposited in safe custody of the competent Court, alongwith the charge-sheet, it could have been obtained for FSL examination only by obtaining requisite permission of the Court. After the mobile phone was sent to DFS, Gandhinagar on 08.12.2011, report dated 03.01.2012 of the FSL, Gandhinagar indicated that memory card of the mobile phone was not found in its slot. Those facts lead to the inference and allegation that the very important piece of evidence was tampered with by not being in a sealed condition from 21.7.2010 to 19.10.2011.
(l) Even as a lame excuse is advanced for the investigating agency to explain the phenomenon of the prime suspect being not immediately arrested or even interrogated, the fact appears to be that the statements of witnesses or accused persons being recorded by the police scrupulously and positively mentioned non-involvement of Mr.DB as against the previous statements of all the family members and acquaintances implicating Mr.DB as the prime suspect. In such facts, it was reasonable for the petitioner to raise the issue as to what the higher officers immediately informed and gathered at the police station were doing for all of 25 days during which a whole new conspiracy to concoct a set of evidence and destroying or removing the original evidence could be hatched and executed. Obviously and in the nature of things, friends and family members of the victim cannot produce any hard evidence or conclusive material as to how, where and when the conspiracy to kill was hatched and in which order the plan to kill was executed. And that is where the importance and utility of an honest and impartial investigation, duly and fully empowered by law to unearth the whole truth, would come into full play. It is trite that an improper investigation would only result into acquittal of the accused persons or conviction of some weakling. A mockery of justice would necessarily shake faith of the people in rule of law, which poses the gravest danger to democracy and enjoyment of fundamental rights by ordinary citizens.
10. All the above circumstances put together indicated that the investigation was controlled from the stage of registering the FIR and only the clues provided by the accused persons themselves were investigated to close the investigation by filing Charge-sheet No.158 of 2010 dated 10.11.2010 and further investigation had not served any purpose. Therefore, the investigation with the lapses and lacunae as also the unusual acts of omission and commission did not and could not inspire confidence. It may not be proper and advisable to further critically examine the charge-sheet already submitted by the police, as some of the accused persons are already arrested and shown as accused persons and even charge is yet to be framed against them. The facts and averments discussed in paragraphs 6 and 7 hereinabove also amply support the conclusion that the investigation all throughout was far from fair, impartial, independent or prompt.
11. Among the relevant statutory provisions in the Code of Criminal Procedure, 1973, for ensuring proper and prompt investigation is Section 41 which provides that any police officer may, without an order from a Magistrate and without a warrant, arrest any person against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, if the police officer has reason to believe on the basis of such complaint, information or suspicion that such person has committed said offence and the police officer is satisfied that such arrest is necessary for proper investigation or to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner or to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case. The police officer may similarly arrest any person against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years or with death and the police officer has reason to believe on the basis of that information that such person has committed the said offence. Section 41-A provides for issuance of a notice, even where arrest of a person is not required under Section 41, directing that person against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. Section 47 provides for search of premises by the police where he has reason to believe that the person to be arrested is located. Under the provisions of Section 48, the police officer is authorized, for the purpose of arresting without warrant any person whom he is authorized to arrest and pursue such person into any place in India.
11.1 Section 157 of the Code mandates that if, from information received or otherwise, an officer in-charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate and shall proceed in person or shall depute one of his subordinate specified officer to proceed to the spot to investigate the facts and circumstances of the case and, if necessary, to take measures for discovery and arrest of the offender. If it appears to the officer in-charge of a police station that there is no sufficient ground for entering on an investigation, even then the officer has to forthwith notify to the informant that he will not investigate the case or cause it to be investigated. By virtue of provisions of Section 160, any officer making investigation can, by order in writing, require the attendance before himself of any person who, from information given or otherwise, appears to be acquainted with the facts and circumstances of the case and such person has to attend as required. Provisions of Section 161 of the Code empowers the officer making an investigation to examine orally any person supposed to be acquainted with the facts and circumstances of the case and such person is legally bound to answer truly all questions relating to such case put to him by such officer, other than the questions answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. The police officer is empowered to reduce into writing any statement made to him in the course of examination and if he does so, he is required to make a separate and true record of the statement of each such person whose statement he records. By virtue of provisions of Section 172 of the Code, every police officer making an investigation shall day-by-day, enter his proceedings of the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation.
11.2 Most importantly, Section 173 of the Code clearly mandates that every investigation under Chapter XII of the Code shall be completed without unnecessary delay; and as soon as it is completed the officer in-charge of the police station has to forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the prescribed form. The police officer is also required to forward with the report the statement recorded under Section 161 of the persons whom the prosecution proposes to examine as its witnesses.
11.3 The Gujarat Police Manual 1975 (Volume III), prescribing the powers and duties of the police, requires by Rule 2 of the first chapter that:
“2. Prevention and investigation of crime.
By far the most important of the duties of a police officer is to obtain, to the best of his ability, intelligence concerning a cognizable offence or designs to commit such offences, and to lay such information and to take such other steps consistent with law and with the orders of his superiors as shall be best calculated to bring offenders to justice or to prevent the commission of offences.”
11.4 Detailed procedure regarding investigation prescribed in Chapter V of the Police Manual provides as under, as the first rule:
“137. Investigation to be impartial and local
(1) Police inquiries should always be impartial. It is the duty of the police to do all it can to find out the truth. An investigating officer is to aim at discovering the actual facts and arresting the real offenders. He ought not prematurely to commit himself to any view of the facts for or against any person. He should consider carefully any evidence tendered to him on behalf of an accused person. He should not make up his mind on any point hastily but, keep, as far as possible, open mind to be influenced by evidence only.”
11.5 Rule 170 of the Manual, which prescribes guidelines for examination of witnesses, includes the instruction that witnesses should be interrogated minutely and thoroughly before their statements are reduced in writing. They shall, however, not be prevented by any caution or otherwise from making any statement which they may be disposed to make of their own free will. While prescribing the procedure for interrogation, it is made clear in black and white, that investigation is but a search for the truth. Naturally, the investigator is a fact finder. His aim, however, is not merely to find out the truth but also to bring the culprit to book by collection of legal evidence. Classifying the witnesses, it is prescribed that disinterested witnesses consists of persons who have neither to gain nor to lose anything from the result of investigation; devoid as they are of any personal motive or consideration for manipulating things, and hence, their evidence deserves the highest credence.
11.6 Rule 229 of the Police Manual clearly mandates that every investigation must be completed without unnecessary delay. It is the duty of sub-divisional police officers to see that investigations are promptly and vigorously carried out by officer in-charge of police stations. In no case, an officer in- charge of a police station should fail to make a final report within 14 days of submitting the First Information Report in a case, without satisfying the sub-divisional police officer that there is sufficient cause for further delay; and in no case must the completion of investigation be delayed beyond one month from the date of First Information Report. A supplementary report may be afterwards sent in, when necessary.
It is prescribed in Rule 240 of the Manual that the case diary should show how the case progresses during the course of investigation and must reflect the mind of the investigating officer.
11.7 In the facts of the present case, if any witness or family member of the deceased were allowed to file the complaint or their statements recorded from the next day were taken as reliable information to raise a reasonable suspicion, the above relevant legal provisions and Rules would have required the police officer in-charge of investigation to at least rush to the places of the suspects, interrogate several persons and make arrests without warrant for custodial interrogation, which was admittedly not done for the crucial initial period of 25 days of investigation.
12. Perusing the relevant observations in various judgments discussed at the bar, it was seen that:-
(a) In Venkatasubramaniam v. M.K.Mohan Krishnamachari [(2009) 10 SCC 488], there was no allegation of dereliction of duty on the part of the investigating agency, nor of any collusion or deliberate delay in the matter of investigation, and the High Court had, in exercise of its jurisdiction under section 482 of Cr.P.C., interfered with the statutory power of investigation by the police, without the person concerned being impleaded as a party respondent in the petition. In that context, the Apex Court observed that the High Court never thought it fit to put the police on notice before issuing directions to the police to arrest, seize the property and file the charge-sheet. In the facts of that case, the petition before the High Court almost read like a civil suit for recovery of money.
(b) In Divine Retreat Centre v. State of Kerala [(2008) 3 SCC 542], the High Court had, exercising power under section 482 of Cr.P.C., directed investigation of a crime to be taken away from the investigating officer concerned and entrusted it to a special investigation team constituted by it, with the further direction to investigate into various other allegations levelled in an anonymous petition filed against an institution. Such proceeding before the High Court was initiated suo motu by the Court on the basis of an anonymous petition addressed to the Hon'ble Judge concerned. Neither had the anonymous petition nor the complaint made by the victim of the offence was directed against the investigating officer complaining of any bias or any attempt on his part to destroy the available evidence and it was in that context that the Apex Court observed that investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered, so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions under Chapter XII of Cr.P.C. The Court hastened to add that unfettered discretion did not mean any unaccountable or unlimited discretion. The power to investigate must be exercised strictly on the condition on which that power is granted by the Code itself. The High Court, in exercise of its inherent jurisdiction, cannot change the investigating officer in the midstream and appoint any agency of its own choice to investigate into a crime on whatsoever basis; and anonymous communication addressed to a named Hon'ble Judge could not be converted into suo motu proceedings for setting the law in motion. It is categorically observed:
“40. ......Neither are the accused nor the complainant or informant entitled to chose their own investigating agency to investigate a crime in which they may be interested.
“41. It is altogether a different matter that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an investigating officer mala fide. That power is to be exercised in the rarest of the rare case where a clear case of abuse of power and non- compliance with the provisions falling under Chapter XII of the Code is clearly made out, requiring interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of process as provided for in the Code.”
(c) In State of Punjab v. Davinder Pal Singh Bhullar [2012 Cri.L.J. 1001], after conclusion of the trial and acquittal of three accused persons and 20 days after dismissal of the appeal by the High Court, the High Court had again taken up the case suo motu and directed the authorities to furnish full details of the proclaimed offenders and the bench marked the matter “Part-heard”. After considering the affidavit filed by the SSP, the High Court had directed the Chandigarh Administration to constitute a special investigation team to inquire into all aspects of the proclaimed offenders and submit a status report. As notice was also issued to the CBI, it submitted its report requesting the High Court note to hand over the inquiry to the CBI as it was already overburdened and suffering from shortage of manpower and resources and the case did not have any inter-State ramifications. However, the High Court directed the CBI to investigate the allegations of one B.S.Multani regarding his missing son. In the same matter, the bench entertained another application filed by Shri Davinder Pal Singh Bhullar (a convict in another case and lodged in Tihar Jail) regarding the allegations that his father and maternal uncle had absconded in the year 1991. The High Court directed the CBI to investigate the allegations made in the complaint filed by Shri Bhullar and to get his statement recorded under section 164 of Cr.P.C., so that the witness may not resile under duress or be won over by any kind of inducement. Then, the CBI, after making a preliminary investigation registered an FIR against SSP, UT, Chandigarh, the then DSP and others and then the High Court had also issued further directions to complete the investigation and submit a further report. In the context of such facts, the Apex Court observed:
“45. In Divine Retreat Centre (Supra), this Court held that the High Court could have passed a judicial order directing investigation against a person and his activities only after giving him an opportunity of being heard. It is not permissible for the court to set the criminal law in motion on the basis of allegations made against a person in violation of principles of natural justice. A person against whom an inquiry is directed must have a reasonable opportunity of being heard as he is likely to be adversely affected by such order and, particularly, when such an order results in drastic consequence of affecting his reputation.
“46. In D. Venkatasubramaniam & Ors. v. M.K.Mohan Krishnamachari & Anr., (2009) 10 SCC 488, this Court held that an order passed behind the back of a party is a nullity and liable to be set aside only on this score. Therefore, a person against whom an order is passed on the basis of a criminal petition filed against him, he should be impleaded as a respondent being a necessary party.
“47. This Court in Disha v. State of Gujarat & Ors., AIR 2011 SC 3168, after considering the various judgments of this Court, particularly, in Vineet Narain & Ors. v. Union of India & Anr., AIR 1996 SC 3386; Union of India v. Sushil Kumar Modi, (1998) 8 SCC 661; Rajiv Ranjan Singh `Lalan' (VIII) v. Union of India, (2006) 6 SCC 613; Rubabbuddin Sheikh v. State of Gujarat & Ors., AIR 2010 SC 3175; and Ashok Kumar Todi v. Kishwar Jahan & Ors., (2011) 3 SCC 758; held that the court can transfer the matter to the CBI or any other special agency only when it is satisfied that the accused is a very powerful and influential person or the State Authorities like high police officials are involved in the offence and the investigation has not been proceeded with in proper direction or the investigation had been conducted in a biased manner. In such a case, in order to do complete justice and having belief that it would lend credibility to the final outcome of the investigation, such directions may be issued.
“48. Thus, in view of the above, it is evident that a constitutional court can direct the CBI to investigate into the case provided the court after examining the allegations in the complaint reaches a conclusion that the complainant could make out prima facie, a case against the accused. However, the person against whom the investigation is sought, is to be impleaded as a party and must be given a reasonable opportunity of being heard. CBI cannot be directed to have a roving inquiry as to whether a person was involved in the alleged unlawful activities. The court can direct CBI investigation only in exceptional circumstances where the court is of the view that the accusation is against a person who by virtue of his post could influence the investigation and it may prejudice the cause of the complainant, and it is necessary so to do in order to do complete justice and make the investigation credible.”
(d) In a decision dated 18.7.2011 of Division Bench of the Bombay High Court, in Criminal PIL Petition Nos.28 and 29 of 2011 and Criminal Application No.13 of 2011 [Per: Hon'ble Mrs.Justice Ranjana Desai (As Her Ladyship then was)], the Court observed that in Constitution Bench judgment in Committee for Protection of Democratic Rights, West Bengal, the Supreme Court had, inter alia, observed that the State has a duty to enforce human rights of a citizen by providing fair and impartial investigation against any person accused of commission of a cognizable offence which may include its own officers. Victim's rights also need to be protected. The Supreme Court further observed that being the protectors of civil liberties of the citizens, the Supreme Court and the High Courts 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. The Supreme Court concluded that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State, without the consent of that State, shall be valid in law. The Supreme Court had, however, added a caveat that the very plenitude of the power under the said articles requires great caution in its exercise. Although no inflexible guidelines could 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. The extraordinary 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. After reference to several relevant judgments, the Court culled out, in para 18, the principles that could be deduced and, inter alia, laid down:
“(g) In an appropriate case, where high officials are involved in crime, when the court feels that the police investigation is not in the proper direction in order to do complete justice, investigation can be transferred to CBI even after the charge-sheet is submitted.”
(e) Earlier, in Union of India v. W.N.Chadha [1993 Supp. (4) SCC 260], the Apex Court has observed:
“80. The rule of audi alteram partem is a rule of justice and its application is excluded where the rule will itself lead to injustice. In A.S. de Smith's Judicial Review of Administrative Action, 4th Ed. at page 184, it is stated that in administrative law, a prima facie right to prior notice and opportunity to be heard may be held to be excluded by implication in the presence of some factors, singly or in combination with another. Those special factors are mentioned under items (1) to (10) under the heading "Exclusion of the audi alteram partem rule'.
“81. Thus, there is exclusion of the application of audi alteram partem rule to cases where nothing unfair can be inferred by not affording an opportunity to present and meet a case. This rule cannot be applied to defeat the ends of justice or to make the law 'lifeless, absurd, stultifying and self-defeating or plainly contrary to the common sense of the situation' and this rule may be jettisoned in very exceptional circumstances where compulsive necessity so demands.
“82. Bhagwati, J. (as the learned Chief Justice then was) in Maneka Gandhi speaking for himself, Untawalia and Murtaza Fazal Ali, JJ. has stated thus:
Now, it is true that since the right to prior notice and opportunity of hearing arises only by implication from the duty to act fairly, or to use the words of Lord Morris of Borth-y-Gest, from 'fair play in action', it may equally be excluded where, having regard to the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provision, fairness in action does not demand its implication and even warrants its exclusion.”
(f) In R.S.Sodhi, Advocate v. State of U.P. [1994 Supp (1) SCC 143], the Apex Court ordered :-
“2. We have examined the facts and circumstances leading to the filing of the petition and the events that have taken place after the so-called encounters. Whether the loss of lives was on account of a genuine or a fake encounter is a matter which has to be inquired into and investigated closely. We, however, refrain from making any observation in that behalf; we should, therefore, not be understood even remotely to be expressing any view thereon one way or the other. We have perused the events that have taken place since the incidents but we are refraining from entering upon the details thereof lest it may prejudice any party but we think that since the accusations are directed against the local police personnel it would be desirable to entrust the investigation to an independent agency like the Central Bureau of Investigation so that all concerned including the relatives of the deceased may feel assured that an independent agency is looking into the matter and. that would lend the final outcome of the investigation credibility. However faithfully the local police may carry out the investigation, the same will lack credibility since the allegations are against them. It is only with that in mind that we having thought it both advisable and desirable as well as in the interest of justice to entrust the investigation to the Central Bureau of Investigation forthwith and we do hope that it would complete the investigation at an early date so that those involved in the occurrences, one way or the other, may be brought to book. We direct accordingly. In so ordering we mean no reflection on the credibility of either the local police or the State Government but we have been guided by the larger requirements of justice. The writ petition and the review petition stand disposed of by this order.”
(g) In Mohammed Anis v. Union of India [1994 Supp (1) SCC 145], the Supreme Court ordered:
“Fair and impartial investigation by an independent agency, not involved in the controversy, is the demand of public interest. If the investigation is by an agency which is allegedly privy to the dispute, the credibility of the investigation will be doubted and that will be contrary to public interest as well as the interest of justice.”
(h) In Rubabbuddin Sheikh v. State of Gujarat [(2010) 2 SCC 200], the Apex Court observed:
“53. It is an admitted position in the present case that the accusations are directed against the local police personnel in which 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.
“60. .......Therefore, it can safely be concluded that in an appropriate case when the court feels that the investigation by the police authorities is not in the proper direction and in order to do complete justice in the case and as the high police officials are involved in the said crime, it was always open to the court to hand over the investigation to the independent agency like CBI. 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 CBI.
“81. In the present circumstances and in view of the involvement of the police officials of the State in this crime, we cannot shut our eyes and direct the State Police authorities to continue with the investigation and the charge sheet and for a proper and fair investigation, we also feel that the CBI should be requested to take up the investigation and submit a report in this Court within six months from the date of handing over a copy of this judgment and the records relating to this crime to them.
“82. Accordingly, in the facts and circumstances even at this stage the police authorities of the State are directed to hand over the records of the present case to the CBI Authorities within a fortnight from this date and thereafter the CBI Authorities shall take up the investigation and complete the same within six months from the date of taking over the investigation from the State police authorities. The CBI Authorities shall investigate all aspects of the case relating to the killing of Sohrabuddin and his wife Kausarbi including the alleged possibility of a larger conspiracy. The report of the CBI Authorities shall be filed in this Court when this court will pass further necessary orders in accordance with the said report, if necessary. We expect that the police authorities of Gujarat, Andhra Pradesh and Rajasthan shall co- operate with the CBI authorities in conducting the investigation properly and in an appropriate manner.”
(i) In Narmadabai v. State of Gujarat and others [(2011) 5 SCC 79], both oral and documentary evidence raised strong suspicion that the encounter was fake and stage- managed as predicted by Tulsiram Prajapati prior to his death in a number of communications. Although charge- sheet was filed by the State after a gap of 3½ years after the incident, the Court was satisfied that the investigation conducted and concluded by the State Police could not be accepted. Therefore, it was found to be not desirable to allow the Gujarat State Police to continue with the investigation and accordingly, to meet the ends of justice and in the public interest, CBI was held to be required to be directed to take over the investigation. The Apex Court directed police authorities of the State to handover all records of the case to CBI and directed CBI to investigate all aspects of the case and file report to the Court concerned having jurisdiction, within a period of six months. It was clarified that the observations made by the Court were only for the limited purpose of deciding the issue whether investigation was required to be handed over to CBI or not and they were not to be construed as expression of opinion on the merits of the case.
(j) In a recent three-Judge bench decision of the Apex Court in Samaj Parivartan Samudaya and others v. State of Karnataka and others [(2012) 7 SCC 407], after reference to the provisions of sections 173(8), 202 and 210 of Cr.P.C., it is observed that, all these provisions clearly indicated the legislative scheme under Cr.P.C. that initiation of an investigation and filing of a charge-sheet do not completely debar further or wider investigation by the investigating agency or police, or even by a specialized investigation agency. The Court further observed:
“66. Wherever and whenever the State fails to perform its duties, the Court shall step in to ensure that the rule of law prevails over the abuse of process of law. Such abuse may result from inaction or even arbitrary action of protecting the true offenders or failure by different authorities in discharging statutory or legal obligations in consonance with the procedural and penal statutes. In respect of the past actions, the only option is to examine in depth the huge monetary transactions which were effected at the cost of national wealth, natural resources, and to punish the offenders for their illegal, irregular activities. The protection of these resources was, and is the constitutional duty of the State and its instrumentalities and thus, the Court should adopt a holistic approach and direct comprehensive and specialized investigation into such events of the past.”
(k) Earlier a three-Judge bench of the Apex Court in State of Bihar v. Ranchi Zila Samta Party [1996 Cri.L.J. 2168], directed that the entire investigation shall stand entrusted to CBI and directed CBI to take over the investigation already made by the State Police, inclusive of the FIRs, arrests and attachments and deal appropriately therewith.
13. As discussed in detail in paragraphs 6, 7 and 9 herein, investigation into the murder of the petitioner's son does not appear to have been carried out in conformity with the legal provisions discussed in paragraph 11 and the control exercised by one police officer of a very high rank, all throughout and even after the orders for further investigation by this Court, provides sufficient ground to conclude that the investigation was controlled and the line of investigation was determined and supervised so as to put to naught the allegations made and the suspicion raised by the acquaintances and family members of the deceased. As discussed in detail earlier in paragraph 9, the investigation would hardly inspire confidence not only in the minds of the bereaved and aggrieved family members, but even general public on taking an objective view of the matter. On the other hand, the deceased having been an active RTI activist, so- many people whose vested interests may have been affected by his applications under the RTI Act, could have a motive to contribute into his killing. Therefore, a perfunctory investigation on the basis of statements of the accused persons themselves may not unearth the whole truth and meet the ends of justice. Therefore, it is imperative that proper and comprehensive investigation is undertaken by an agency which is not under the control of the State Government.
14. The Right to Information Act, 2005 declared in its Preamble that, whereas the Constitution of India has established democratic Republic and democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed; and to preserve the paramountcy of the democratic ideal, that it was enacted. The Constitutional powers conferred upon the highest judicial institution in the State to entertain public interest litigation and issue necessary direction was also a step forward in enforcing the fundamental rights of the citizens and ensuring the rule of law . These progressive steps cannot be allowed to be nullified and no one should face a threat to his life when he approaches a court of law to exercise his right of access to justice. In such milieu, murder of a petitioner in a PIL and an RTI activist, in front of the High Court, could be read as a clear message to the concerned citizens that they may have to pay by their lives, if they insist upon using the tools placed in their hands by law and approach the Court for redressal of public grievance against some individuals. The commission of murder, in the facts of the present case, amounted to an affront to the judicial system and a challenge to implementation of an Act of Parliament, with national repercussions and has to be viewed seriously. Therefore, it is of utmost importance that the case on hand is thoroughly investigated and properly prosecuted by independent and competent officers, so as to inspire confidence and reaffirm faith of the people in rule of law.
15. In the facts and for the reasons discussed hereinabove, while concluding that the investigation into murder of the son of the petitioner was far from fair, independent, bona fide or prompt, this Court refrains from even remotely suggesting that the investigating agency should or should not have taken a particular line of investigation or apprehended any person, except in accordance with law. It is clarified that the observations made herein are only for the limited purpose of deciding whether further investigation was required to be handed over to CBI, and they shall not be construed as expression of an opinion on any particular aspect of the investigation carried out so far. However, in view of the peculiar facts and circumstances, following the ratio of several judgments of the Apex Court discussed hereinabove and in the interest of justice and to instill confidence in the investigation into a serious case having far reaching implications that we order that further investigation into I-C.R.No.163 of 2010 shall be transferred to the Central Bureau of Investigation (CBI), with the direction that the CBI shall immediately undertake an independent further investigation, and all the officers and authorities under the State Government shall co-operate in such investigation so as to facilitate submission of report of investigation by the CBI as early as practicable and preferably within a period of six months. The police authorities of the State are directed to hand over the records of the present case to the CBI authorities within ten days and thereafter the CBI shall take up comprehensive investigation in all matters related to the offence and report thereof shall be submitted to the Court of competent jurisdiction and, in the meantime, further proceeding pursuant to the charge-sheets submitted by respondent No.5 shall remain stayed. Rule is made absolute accordingly. In view of disposal of the main petition, the Misc. applications are disposed as not surviving.
Before parting with the judgment, it has to be acknowledged that learned Government Pleader Mr.P.K.Jani has, while duly and diligently defending the respondent, been forthright and displayed exemplary objectivity, earning credit for the office of the Public Prosecutor.
A copy of this order shall be served on the office of the CBI at Gandhinagar and its central office at New Delhi. Direct service by the petitioner is also permitted.
Sd/-
( D.H.Waghela, J.) Sd/-
( J.C.Upadhyaya, J.) Upon the above judgment and order being pronounced today, learned Government Pleader Mr.Prakash K.Jani requested for staying operation of the order for a period of three weeks. Since we do not find any justification for granting the request, it is rejected.
(KMGThilake)
Sd/ ( D.H.Waghela, J.) Sd/ ( J.C.Upadhyaya, J.)