The petitioner is brother of late Jasu Gagan Shial, who was allegedly killed by police in a false encounter. Two other persons namely Aher Ranmal Ram and Aher Narayan Jesti Bandhiya were also killed by the police in the year 1996-97 during police custody, in separate incidents.
2. Earlier, Special Civil Application No. 319 of 1997 was filed by office-bearers of an organization called Action Committee for Prevention of Police Atrocities, who claimed to uphold rule of law and for ensuring democratic functioning of all the organs of the State. A Division Bench of this Court, after considering relevant material on record and hearing learned counsel for the parties and considering affidavit dated 01.12.1997 filed by the then Under Secretary, Home Department, State of Gujarat, and also relying on decisions of the Apex Court with regard to the subject matter of the petition, vide judgment dated 09.03.1998 issued certain directions. Para 13 of the said judgment reads as under:
"13. In the circumstances detailed above, we direct Shri Hiralal, Special Inspector General of Police, C.I.D. Crime, Gujarat State, to investigate into the circumstances which led to the death of M/s. Jasu Gagan Shial, Aher Ranmal Ram and Aher Naran Jesti Bandhiya and in case if he considers that cognizable offences have been committed warranting further investigation thereto,he may do the same in accordance with law and bring the accused to trial.
On completing the investigation he will take further follow-up action also in accordance with law. Any observation made in this judgment should not influence the investigation in any manner.
We direct the Special I.G.P. to complete the investigation/enquiry as expeditiously as possible at any rate within six months from the date of receipt of a copy of this judgment.
Rule is made absolute in the above terms".
3. The above directions were to be carried out within 6 months from the date of receipt of the copy of the above judgment. Since some more time was required to complete investigation/inquiry, an application was preferred by the respondent authorities being Civil Application No.8022 of 1998 in the above Special Civil Application No.319 of 1997. Considering the said request, a Division Bench of this Court passed the following order on 03.09.1998:
"This Court on 9.3.1998 directed Shri Hiralal, Special Inspector General of Police, CID Crime, Gujarat State, to investigate into the circumstances which led to the death of S/Shri Jasu Gagan Shial, Aher Ranmal Ram and Aher Naran Jesti Bandhiya giving him six months time to complete the said investigation/ inquiry. Now the petitioner/ State prays that some more time be granted to complete the investigation/ inquiry.
2. We heard the petitioner's counsel and the counsel for the respondents. The counsel for the respondents has strongly objected to grant of further time. It is submitted that even though sufficient time was given, the officer has not completed the inquiry within time.
3. Having regard to the facts and circumstances of the case, we extend the time for completion of the investigation/ inquiry till 1st November 1998.
4. The Civil Application is disposed of accordingly".
Thus, the subject matter of the petition was to be investigated / inquired into by 01.11.1998.
4. The petitioner, who is brother of deceased-Jasu Gagan Shial, has filed this petition with the following prayers.
"[A] To transfer investigation to any independent investigation agency that may deemed fit and proper by this Hon'ble Court in the facts and circumstances of the case for Investigation into the death of Jasu Gagan Shial during police encounter, Aher Ranmal Ram during police remand in connection with FIR being II-CR No.85 of 1998 registered at Kutiyana Police Station, District Junagadh and Aher Narayan Jesti Bandhiya during police custody in connection with FIR bearing II-CR No.28 of 1995 and FIR bearing I-CR NO.4 of 1996 and be further pleased to direct the such investigating agency to complete investigation within a stipulated period and preferably within six months;
[B] To direct such investigating agency to register fresh FIR/s and also investigate the complicity of concerned police officers and police personnel and their failure to complete the investigation and thereby discharge their obligation;
[C] During the pendency and/or final disposal of the present petition be pleased to direct respondent no.3 and 4 to place on record the stage of investigation and its outcome, if any, on affidavit in the form of action taken report pursuant to judgment and order dated 09.03.1998 passed in Special Civil Application No.319 of 1997;
[D] to award the costs of the present petition."
4.1 The petitioner is constrained to file this petition against the inaction on the part of the respondent authorities and their failure to comply with the directions issued by this Court in various orders.
5. Shri N.D.Nanavaty, learned Senior Advocate appearing with Mr. Harshit Tolia for the petitioner, at the outset, lamented the approach on the part of the State Government in not complying with the orders referred to herein above and on the strength of decision of the Apex Court in the case of D.K.Basu v. State of West Bengal [(1997)1 SCC 1] and Article 21 of the Constitution of India prayed to issue appropriate directions to the State authorities.
6. Heard Mr. P.K.Jani, learned Public Prosecutor appearing with Mr. J.K.Shah, learned APP for the respondent authorities. Mr. D.R.Patel, Under Secretary, Law & Order, Home Department, State of Gujarat filed affidavit dated 16.01.2012. Paras 1, 2 and 3 of the said affidavit read as under:
"[1] I have gone through the copy of petition which came to be served upon me on 13-01-2012. I say that I have also perused the annexures attached with the memo of petition. I am conversant with the facts of the case and I am authorized to file present affidavit.
[2] I say that I have inquired about the status of the case in relation to death of three persons mentioned in the petition. I stat that the inquiry so far made by the State Government shows that no record is available with respect to the above case. I say that as on date there is no documentary evidence available with the undersigned department disclosing the compliance of earlier orders passed by this Hon'ble Court. In view of the above, the State is contemplating a detailed enquiry.
[3] Under the circumstances, it is most respectfully prayed before this Hon'ble Court to grant reasonable time to enable the undersigned to place on record of the case the status and action taken report on the next date of hearing".
6.1 Mr. D.R.Patel, Under Secretary, Law & Order, Home Department, State of Gujarat filed another affidavit dated 13.02.2012. Paras 2, 3 and 4 of the said affidavit read as under:
"[2] I state that the State Government has appointed Shri A.K.Sharma IPS, presently discharging duty as Inspector General of Police, Gandhinagar Range to inquiry into all these details. I state that the order in this regard was passed on 19th January, 2012.
I therefore state that considering the significance and importance of the matter Mr. A.K.Sharma was asked to give his report within 10 days.
[3] I state that on 10th February, 2012 Mr. A.K.Sharma, Inspector General of Police has sent a report to Addl. Chief Secretary, Home Department, Gandhinagar. In the said report it is stated that the report as submitted by Shri Hiralal, Commissioner of Police, Ahmedabad at the relevant time is not available in the Office of the Commissioner of Police Ahmedabad. A copy of the report dated 10th February, 2012 is annexed hereto and marked as Annexure-I to this affidavit.
[4] I therefore state that the report as prepared by Shri Hiralal the then Special Inspector General of Police is not in the government record anywhere.
That is stated that there is a endorsement in the outward register of Office of the Government Pleader that the report was submitted to the Registry of the High Court of Gujarat on 16.11.1998.
7. In view of the above affidavits, this Court passed order dated 27.02.2012 observing that the subject matter of the petition, including the prayers emanate from the order dated 09.03.1998 passed in Special Civil Application No.319 of 1997, which was a petition in the nature of public interest litigation, the Registry was directed to place the matter before the Hon'ble the Acting Chief Justice for passing appropriate order for placing the matter before this Court or before the Court taking up PILs. On the submission made by the Registrar [Judicial], Hon'ble the Acting Chief Justice passed order dated 07.03.2012 on the administrative side directing the Registry to place the matter before this Court. Accordingly, the matter is placed before this Court on 09.03.2012.
7.1 On 09.03.2012, in view of the statement made by the Under Secretary, Law & Order, Home Department, Government of Gujarat in the affidavit dated 13.02.2012 viz. `there is a endorsement in the outward register of Office of the government Pleader that the report was submitted to the Registry of the High Court of Gujarat on 16.11.1998`, the Registrar [Judicial] was directed to explain as to whether any such report was received by the Registry of this Court or not. Pursuant to the said order, Registrar [Judicial] made a submission dated 15.03.2012 inter alia stating as under:
"In this connection, it is further respectfully submitted that upon verification of papers of SCA No.319 of 1997, it appears that the said matter was consigned to the Record Room on 9.7.2010 after classification & destruction as provided under Rules. On close scrutiny, it is found that a simple copy of CAV Judgment delivered by the Hon'ble Court alongwith the original Memo and without copy of final Writ communicating final order, as per endorsement made in Form 19E attached to the said matter. There is no mention with regard to any Report as submitted by Shri Hiralal, received from the Office of Govt. Pleader nor are there any papers pertaining to such Report kept in the said matter'.
7.2 Again by order dated 02.04.2012, the learned Government Pleader was requested to inform this Court about the record referred to in the communication dated 10.09.1998 by the office of the Additional Director General of Police, CID [Crime], Gujarat State, Ahmedabad. In the said order this Court directed to produce relevant rules for destroying the old records of the High Court of Gujarat as referred in the note dated 15.03.2012 and the procedure followed. Pursuant to the said order, the Registrar [Judicial] submitted submission dated 10.04.2012. Along with the submission dated 10.04.2012, the Registrar [Judicial] enclosed xerox copy of Chapter-XV with regard to Destruction of Records under Gujarat High Court Rules, 1993; extract of rules 162, 163, 164, 168 and 169; Circular issued by the then Registrar [Judicial] on 13.05.2009; submissions made to Hon'ble the Acting Chief Justice; and order passed therein and reiterated that no such report was received by the Registry, High Court of Gujarat as affirmed and declared by the deponent of the affidavit dated 13.02.2012.
8 In view of the affidavits filed by the Under Secretary, Law & Order, Home Department, Government of Gujarat, explanation rendered by the Registrar [Judicial] and the material available on record, it is evident that the report at the end of the inquiry / investigation, as ordered by the Division Bench of this court on 09.03.1998 in Special Civil Application No.319 of 1997, has not been placed on record of this Court as on date. Further, due to the non-availability of the report in the office of the Commissioner of Police, Ahmedabad; Home Department, State of Gujarat; Office of the Government Pleader; and the Registry of the High Court, virtually, the satisfaction expressed by the Division Bench about the necessity to order investigation and submission of report at the end of such inquiry / investigation, still exists and on consideration of the overall facts and circumstances and considering serious allegations with regard to custodial death of three persons, at this stage, I am inclined to issue the following directions:
[i] The Additional Director General of Police CID [Crime], Gujarat State, to investigate into the circumstances which led to the death of M/s.
Jasu Gagan Shial, Aher Ranmal Ram and Aher Naran Jesti Bandhiya.
On completing the investigation he will submit the report before this Court so that further follow-up action can be taken in accordance with law.
[ii] The Additional Director General of Police CID [Crime], Gujarat State shall also investigate/inquire into the circumstances in which the earlier report, prepared by Shri Hiralal, the then Special Inspector General of Police, is disappeared.
[iii] Any observation made in this order shall not influence the investigation in any manner and the Additional Director General of Police CID [Crime], Gujarat State is directed to complete the investigation / enquiry as expeditiously as possible and within three months from the date of receipt of a copy of this order.
For further order, post the matter on 27th July, 2012.
[Anant S. Dave, J.] *pvv Top