IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 674 of 2001 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH =========================================
========================================= SHAKUNTALADEVI GIRJA RAVAT Applicant(s) Versus STATE OF GUJARAT & 11 Respondent(s) ========================================= Appearance :
MR MITUL K SHELAT for Applicant(s) : 1, MR LB DABHI, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, MR KALPESH N SHASTRI for Respondent(s) : 1, MR NIRAV C THAKKAR for Respondent(s) : 2 4. M/S THAKKAR ASSOC. for Respondent(s) : 5, 8, 11, RULE UNSERVED for Respondent(s) : 6, MR RC KAKKAD for Respondent(s) : 7, RULE SERVED for Respondent(s) : 9 10, 12, MR YN RAVANI for Respondent(s) : 12, ========================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 12/01/2012 CAV JUDGMENT [1.0] Present Special Criminal Application under Article 226 of the Constitution of India has been preferred by the petitioner herein – the widow of deceased Girja Ravat, who was serving as a Cook in the Jamnagar Air Force I Mess and who is alleged to have been brutally murdered by respondent Nos.2 to 11 and others, praying for reinvestigation and/or further investigation of the case i.e. Sessions Case No.28/1997 pending in the Court of learned Sessions Court, Jamnagar by Central Bureau of Investigation.
[2.0] Facts leading to filing of the present petition in nutshell are as under:
[2.1] Petitioner herein is the widow of one Girja Ravat (deceased) who was serving as a Cook in the Jamnagar Air Force I Mess. It is alleged by the petitioner that her husband has been brutally murdered by respondent Nos.2 to 11 herein and others – the officers of the Air Force.
[2.2] It appears that on around 09.11.1995, 94 bottles of English liquor were alleged to have been stolen from the canteen of Jamnagar Air Force I for which one complaint was lodged by one Ajitsinh K. Zala before the Jamnagar City 'B' Division Police Station which was registered as C.R. No.I476/1995 for the offences under Section 457 and 380 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). It appears that one Shri J.J. Siddhu who was serving as a warrant officer in Air Force I Base, Jamnagar, received an information from one informant that civilian cook i.e. deceased Girja Ravat has stolen the English liquor and relying upon the said information, the Air Commander K.C. Philipos ordered to search the quarter of deceased Girja Ravat and therefore, Squadron Leader Anup Sud along with 12 other officers of Air Force Base I Jamnagar went to search the house of deceased Girja Ravat on 13.11.1995 and at about 3.15 p.m., nothing objectionable was found from the house of the petitioner. Despite the above, they took away husband of the petitioner by stating that a piece of glass was found from the compound of the quarter and therefore, the petitioner's husband was taken to the Guardroom of Air Force, Jamnagar for further inquiry by the search party. That one another cook Shri Mahesh Ramdas was told to sign the seizure memo prepared by the search party. It is the case on behalf of the petitioner that after her husband was taken to the Guardroom of the Air Force, Jamnagar for further inquiry by the search party, the whereabouts of her husband were not known, however, she was informed that her husband would be back by 4 p.m. It is the case on behalf of the petitioner that as her husband did not return till 4 p.m., Mahesh Ramdas went to inquire to the guard room on cycle and where he heard screaming and shouting of Girja Ravat and on inquiry, he was told to leave the guard room. It is the case on behalf of the petitioner that as the petitioner's husband did not return till 10.30 p.m. in the night, the petitioner went to Mahesh Ramdas and others complaining about the same and therefore, Mahesh Ramdas along with his wife Vandna went to the guardroom which was found to have been locked and the guard of the guardroom informed the petitioner and two others that the petitioner's husband was taken to a certain place and he will be relieved from that place as soon as investigation is over. It is the case on behalf of the petitioner that thereafter she went to her relatives' residence and Mahesh Ramdas and his wife Vandna went to their residence. It is the further case on behalf of the petitioner that thereafter the petitioner went to the guardroom at around 5 O'clock in the evening and she was told that she may leave for her residence and at around 6 O'clock in the evening her husband would be sent back to his house. It is the case on behalf of the petitioner that she called upon one W.P. Kumar and M.N. Singh, her relatives who inquired with the guardroom at Jamnagar Air Force Base I and was told that petitioner's husband would be back by one hour i.e. in the night and later on, the petitioner went to her residence and at around 5 O'clock in the morning, the door of the petitioner's house was knocked at by one orderly of Air Force, Jamnagar who informed the petitioner that her husband Girja Ravat has died. It is the case on behalf of the petitioner that having heard the news of the death of her husband, she rushed to the house of Shambhubhai, Mahesh Ramdas and others and after waking them up, she went to the SSQ wherein the body of the petitioner's husband was found lying in almost naked condition with only a baniyan and the dead body had numerous injuries, abrasions etc. and the petitioner was told that her husband has expired.
[2.3] That initially the death of the husband of the petitioner was registered as accidental death for which Accidental Death Entry No.99/1995 was made. However, it was the specific case on behalf of the petitioner that accused persons have committed offences under Sections 302, 331 and 114 of the IPC. That thereafter, the investigation was carried out by the I.O.. That thereafter one FIR was lodged against the accused persons – officers of the Air Force, Jamnagar for the offences punishable under Sections 302, 331 and 114 of the IPC for the death of husband of the petitioner – Girja Ravat with Jamnagar City 'B' Division Police Station and the I.O. investigated the case and all the accused persons are charge sheeted for the offences under Sections 302, 331 and 114 of the IPC and thereafter the case is committed to the learned Sessions Court, Jamnagar which is numbered as Sessions Case No.28/1997.
[2.4] It is the case on behalf of the petitioner – widow of the deceased that though the accused persons are chargesheeted for the offences under Sections 302, 331 and 114 of the IPC, as such there is no proper investigation carried out by the I.O. and the accused persons are likely to get the benefit of such a faulty investigation and even some accused persons have also filed the discharge applications. It is the case on behalf of the petitioner that as the accused persons are the officers of the Air Force, Jamnagar, who are very influential, there is no proper investigation carried out by the I.O. and accused persons are chargesheeted only with a view to make a show that the accused persons are chargesheeted. It is submitted that as such due to faulty investigation, the benefit is likely to be taken by the accused persons. Therefore, it is submitted that this is a fit case for further investigation / reinvestigation of the case by the independent agency like CBI. It is submitted that as the accused persons are high ranking officers of the Air Force, Jamnagar, it is apprehended that the local investigating officer would not be in a position to investigate the case thoroughly and the benefit of such a faulty investigation is likely to be taken by the accused persons.
[2.5] It is submitted that the husband of the petitioner has been brutally murdered by the accused persons – officers of Air Force, Jamnagar. It is further submitted that despite the fact that there were more than 23 injuries found on the body of the deceased, initially the case was registered as accidental death case and thereafter at the insistence of the petitioner and others and when thereafter there was much hue and cry, the FIR was lodged against the accused persons for offences under Sections 302, 331 and 114 of the IPC. However, without any proper investigation, the chargesheet has been filed against the accused persons. It is submitted that as respondent Nos.2 to 11 are serving in Air Force and some of them are in Air Force Police, the whole issue has been shuttled by recording false statements and as such there was total noncooperation on the part of respondents – accused. It is further submitted by Shri Shelat, learned advocate appearing on behalf of the petitioner that it transpires from the chargesheet papers that as such the investigation is yet not been completed. It is submitted that all the accused persons inclusive of Dr. Yamuna, who declared the husband of the petitioner as dead, all formed unlawful assembly and have committed the serious offence of murder and even Dr. Yamuna has also mislead the investigation by making false statements as if there were two or three minor injuries on the body of the deceased Girja Ravat. It is submitted that there were as many as 23 serious injuries received by deceased Girja Ravat. It is further submitted by Shri Shelat, learned advocate appearing for the petitioner that even the statement of officers of the Air Force have not been recorded nor any documentary evidence has been seized or recovered from the main gate or guardroom or the log book being entered and maintained by the vehicle used by the raiding party, which is absolutely necessary to be recovered and seized so that proper and fair investigation into case can be carried out. It is submitted that therefore, the investigation which has been carried out, which is carried out for the sake of being just carried out and it is not the legal, proper, impartial and fair investigation in such a serious offence of murder. Therefore, it is prayed for reinvestigation/further investigation by the CBI so that truth can prevail and the trial can commence further after full fledged and proper, impartial investigation is carried out. Therefore, it is requested to order reinvestigation / further investigation of the entire case with respect to the death of Girja Ravat by CBI in exercise of powers under Section 173(8) of the CrPC. It is submitted that considering the fact that the accused persons are highranking officers of Air Force, Jamnagar, it will be just and proper to order for further and/or reinvestigation of the case under Section 173(8) of the CrPC, by the independent agency like Central Bureau of Investigation.
[2.6] Shri Shelat, learned advocate appearing on behalf of the petitioner has relied upon the decision of the Hon'ble Supreme Court in the case of Rubabbuddin Sheikh v. State of Gujarat & Anr. reported in (2010)2 SCC 200. It is submitted that as observed by the Hon'ble Supreme Court in the said decision, it is not necessary to ensure that the investigation should not only be fair but should also seem to be fair, in order to instill confidence in the minds of victim's relatives and the general public.
[2.7] Shri Shelat, learned advocate appearing on behalf of the petitioner has also relied upon the decision of the Hon'ble Supreme Court in the case of State of West Bengal & Ors. v. Committee for protection of Democratic Rights, West Bengal & Ors. reported in (2010) 3 SCC 571 by submitting that as held by the Hon'ble Supreme Court in the said decision, the State has a duty to enforce human right of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. It is submitted that as observed by the Hon'ble Supreme Court in the said decision, Article 21 of the Constitution of India in its broad application not only takes within its field enforcement of rights of an accused but also the rights of the victim.
[2.8] Shri Shelat, learned advocate appearing on behalf of the petitioner has also relied upon the decision in the case of Ramesh Kumari v. State (NCT of Delhi) and Ors. reported in (2006) 2 SCC 677 in support of his prayer to direct reinvestigation / further investigation of the case by the CBI. Shri Shelat, learned advocate appearing on behalf of the petitioner has also relied upon the decision of the Gauhati High Court in the case of Shri Pranab Jyoti Gogai v. State of Assam & Ors. reported in 1992 Cri.L.J. 154.
[2.9] Shri Mitul Shelat, learned advocate appearing on behalf of the petitioner has further submitted that in the present case even the State had earlier preferred Special Criminal Application No.302/1999 before this Court praying for further investigation of the case under Section 173(8) of the CrPC by CBI or any other independent agency by submitting and admitting that no detailed investigation is carried out and therefore, the case is required to be further investigated. It is submitted that unfortunately the said Special Criminal Application preferred by the State for further investigation by CBI came to be dismissed for nonprosecution for nonremoval of office objections. Therefore, it is submitted that even the State is/was of the opinion that there is no detailed and proper investigation carried out by the I.O. Therefore, it is submitted that this is a fit case to order for further investigation under Section 173(8) of the CrPC that too by independent agency like CBI.
[3.0] Shri L.B. Dabhi, learned Additional Public Prosecutor has requested to pass appropriate order as the State itself had earlier preferred Special Criminal Application No.302/1999 before this Court praying for further investigation of the case by CBI, which came to be dismissed for nonprosecution by this Court due to nonremoval of office objections by the State.
[4.0] Shri Y.N. Ravani, learned advocate appearing on behalf of CBI has requested to pass appropriate order by submitting that whatever the directions are issued by this Court, the CBI shall act on that and comply with the same.
[4.1] Learned advocates appearing for respective private respondents – original accused have tried to submit that no case is made out for further investigation under Section 173(8) of the CrPC and that too by the CBI. It is submitted that as such accused persons are already chargesheeted and the case is committed to the learned Sessions Court and therefore, unless a case is made out before the learned Sessions Court for further investigation under Section 173(8) of the Code of Criminal Procedure, no such relief can be granted in a petition under Article 226 of the Constitution of India. Therefore, it is requested to dismiss the present petition.
[5.0] Heard learned advocates appearing for respective parties at length. At the outset it is required to be noted that present petition has been preferred by the petitioner as a victim and widow of the deceased who is alleged to have been murdered brutally by the accused persons who are highranking officers/officers of the Air Force, Jamnagar in whose custody the deceased has died and has prayed for further investigation of the case in exercise of powers under Section 173(8) of the CrPC by an independent agency like CBI. It is true that after the investigation all the accused persons are chargesheeted for the offences under Sections 302, 331 and 114 of the IPC and the case is committed to the learned Sessions Court. However, it is the case on behalf of the petitioner and even the State that the investigation has not been carried out in a proper manner and the statement of concerned persons are not recorded and even the investigation is faulty and the benefit of such faulty investigation is likely to be taken by the accused persons. It is the case on behalf of the petitioner that as the accused persons are the officers of the Air Force, Jamnagar and Air Force Police, Jamnagar, it is apprehended that there is no proper investigation by the I.O. and therefore, it will be just and proper to order for further investigation by the CBI – an independent agency.
[5.1] At this stage it is required to be noted that in the present case, the State had earlier preferred Special Criminal Application No.302/1999 before this Court praying for further investigation of the case in exercise of powers under Section 173(8) of the CrPC by CBI or any other independent agency. It is required to be noted that in the said application, the State has specifically admitted that the investigation has been faulty and there is no proper investigation carried out by the I.O. as no statements are recorded of higher officials of the Air Force nor any documentary evidence seized or recovered from the main gate or guardroom, ground duty list or log entry of the vehicle used by raiding party, which was necessary to be recovered and seized so that complete investigation can be carried out. It is also required to be noted at this stage that in the said petition, it was specifically mentioned by the State in ground No.B that as the I.O. is a police officer while Shri Philipos is a Commander and Anup Sood is a Squadron Leader (accused persons) and as they are high officials having rank higher than the I.O. and therefore, it is desirable in the interest of justice, if the same offence is investigated by the higher officials of the rank above Air Commander and Squadron Leader. Therefore, it was the specific prayer on behalf of even State to order for further investigation under Section 173(8) of the CrPC by CBI or any other independent agency.
[5.2] In the case of Committee for protection of Democratic Rights, West Bengal & Ors. (Supra) (2010)3 SCC 571, the Hon’ble Supreme Court in para 68 has observed and held as under:
68. Thus, having examined the rival contentions in the context of the Constitutional Scheme, we conclude as follows:
(i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any Constitutional or Statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure.
(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said Article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State.
(iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the Constitutional Courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. Moreover, in a federal constitution, the distribution of legislative powers between the Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than the Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between the Parliament and the State Legislatures, it is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of "the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review".
(iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure.
(v) Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226 of the Constitution.
(vi) If in terms of Entry 2 of List II of The Seventh Schedule on the one hand and Entry 2A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the Statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the court fails to grant relief, it would be failing in its constitutional duty.
(vii) When the Special Police Act itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a Restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of The Union, cannot be read as restriction on the powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure.
[5.3] In the case of Rubabuddin Sheikh (Supra), the Hon’ble Supreme Court has observed that it is necessary to ensure that the investigation should not only be fair but should also seem to be fair, in order to instill confidence in the minds of victims’s relatives and general public. It is required to be noted that in the said decision the Hon’ble Supreme Court transferred the investigation of the case to CBI at the stage when the State police had completed the investigation and chargesheet had been submitted.
[5.4] Now, considering the facts of the case on hand, it appears that investigation in the present case cannot be said to have been conducted in a proper direction. It appears to the Court that I.O. has failed to carry out fair investigation. The offences alleged to have been committed by the accused persons, who are the high ranking officers of the Air Force, Jamnagar, are of grave nature which needs to be strictly dealt with. It appears that statement of number of witnesses/officers of the Air Force have not been recorded. The relevant documentary evidences are not seized or recovered from the main gate or guardroom or guard duty list or log book entry of the vehicle used by raiding party which was required to be recovered and seized so that complete investigation can be said to have been carried out. It is also required to be noted and as stated herein above, in the present case, even the State had earlier come before this Court by way of Special Criminal Application No.302/1999 praying for further investigation of the case under Section 173(8) by CBI or any other independent agency admitting the lapse on the part of the I.O. in proper investigating the case and had requested for further investigation by CBI under Section 173(8) of the Code of Criminal Procedure on the ground that the I.O. is much below the rank than the accused persons who are high officials having high rank than the I.O. It appears to the Court that the benefit of such a faulty and/or halfhearted investigation by the concerned I.O. is likely to be taken by the accused persons. Merely filing of the chargesheet is not sufficient. The endeavour of the I.O. should be to find out the real truth so that the real accused persons are convicted and punished. As such the I.O. was required to investigate the case thoroughly without considering who is the accused person. As observed by the Hon’ble Supreme Court in catena of decisions as such the I.O. is the master of investigation and nobody can interfere in his duty of investigation. In the present case, unfortunately the I.O. has failed to perform his duty and to investigate the case thoroughly and in proper manner as the accused persons are the highranking officers and of higher rank than the I.O. As stated herein above, even the State has also admitted the same while submitting the earlier petition before this Court being Special Criminal Application No.302/1999 which unfortunately came to be dismissed for non prosecution due to nonremoval of office objections.
[5.5] Now, so far as the contention on behalf of the original accused that as the accused persons are already chargesheeted and such a prayer for further investigation can be made before the concerned trial Court and unless the concerned trial Court is satisfied, such a prayer under Article 226 of the Constitution of India may not be granted is concerned, it is required to be noted that the present petition has been filed by the petitioner – widow of the deceased – victim under Article 226 of the Constitution of India for further investigation of the case under Section 173(8) of the CrPC by CBI and such powers to order further investigation by CBI are not vested with the trial Court. Even in the case of Rubabuddin Sheikh (Supra), the Hon’ble Supreme Court has ordered for further investigation by CBI even after the State police completed the investigation and the chargesheet was submitted.
[5.6] As observed by the Hon’ble Supreme Court in the case of Babubhai v. State of Gujarat & Ors. reported in (2010) 12 SCC 254, not only fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. It is further observed by the Hon’ble Supreme Court that therefore, the investigation must be fair, transparent and judicious as it is the minimum requirement of Rule of Law. In the said decision, the Hon’ble Supreme Court has also observed that if the Court comes to the conclusion that the investigation has been done in a manner with an object of helping a party, the Court may direct for further investigation and ordinarily not for reinvestigation.
[5.7] In view of the above and for the reasons stated above, the petition succeeds and it is directed to Central Bureau of Investigation, Gandhinagar to further investigate the case of the death of deceased Girja Ravat – Sessions Case No.28/1997, in exercise of powers under Section 173(8) of the CrPC and to carry out further investigation within a period of six months from the date of the present order and submit report before the concerned Sessions Court, Jamnagar in Sessions Case No.28/1997 immediately and thereafter the learned Sessions Court to proceed further with the trial in accordance with law and on merits and till then the further proceedings of Sessions Case No.28/1997 pending in the Court of learned Sessions Judge, Jamnagar are stayed. Rule is made absolute accordingly. D.S. permitted.
(M.R. Shah, J.) *menon