Gujarat High Court Ishrat Case Assigned to SIT

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Gujarat High CourtGujarat High CourtState vs Union on 12 August, 2010Author: Jayant Patel,&Nbsp;Honble Kumari,&Nbsp;Gujarat High Court Case Information System function loadSearchHighlight()

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CR.MA/10625/2009 111/ 111 JUDGMENT

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL

MISC.APPLICATION No. 10625 of 2009

In

SPECIAL

CRIMINAL APPLICATION No. 822 of 2004

With

CRIMINAL


In

CRIMINAL


With

State vs Union on 12 August, 2010

Indian Kanoon - http://indiankanoon.org/doc/1879844/ 1


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CRIMINAL


In

CRIMINAL


With

SPECIAL


With

SPECIAL


With

CRIMINAL


In

SPECIAL


With

SPECIAL


For

Approval and Signature:

HONOURABLE

MR.JUSTICE JAYANT PATEL

HON'BLE

SMT. JUSTICE ABHILASHA KUMARI




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=========================================================

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 anyorder made thereunder ?

5

Whether

it is to be circulated to the civil judge ?

=========================================================

STATE

OF GUJARAT & 1 - Applicant(s)

Versus

UNION

OF INDIA & 5 - Respondent(s)

========================================================= Appearance

:

MR




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KAMAL TRIVEDI, ADVOCATE GENERAL WITH MR JM PANCHAL, SPECIAL PUBLICPROSECUTOR WITH MS SANGEETA VISHEN, APP for state (IN ALL THE MATTERS),

MR PS

CHAMPANERI, ASSTT SOLICITOR GENERAL for UNION OF INDIA IN ALL CONCERNEDMATTERS,

MR YN

RAVANI for CBI

MR IH SYED

FOR THE PETITIONERS OF SPECIAL CRIMINAL APPLICATION NO.822 OF 2004 ANDCONCERNED CRI. MISC. APPLICATIONS

MR MUKUL

SINHA WITH MR AN PATEL FOR PETITIONER OF SPECIAL CRIMINAL APPLICATION NO.1850OF 2009 AND CONCERNED APPLICATIONS

MR ND

NANAVATI WITH MR MITESH AMIN FOR PETITIONER OF SPECIAL CRIMINAL APPLICATIONNO.2012 OF 2009 AND CONCERNED APPLICATIONS

=========================================================

CORAM

:

HONOURABLE

MR.JUSTICE JAYANT PATEL

and

HON'BLE

SMT. JUSTICE ABHILASHA KUMARI

Date

: 12/08/2010

ORAL

JUDGMENT

(Per




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: HONOURABLE MR.JUSTICE JAYANT PATEL)

As

all the matters are inter-connected and the facts are common, they are being considered by this commonjudgement.

On

15.6.2004, vide C.R. No.8/2004 of Crime Branch Police Station, a complaint was filed by Shri J.G. Parmar,P.I. (Crime Branch), Ahmedabad informing that on 14.6.2004 at about 23.00 hrs., an information wasreceived by Joint Commissioner of Police Shri P.P. Pandey through his personal sources that in Blue ColourIndica Car bearing Registration No.MH-02-JA-4786, one Javed and two Pakistani Fidayeens, with arms and

ammunition, have left Mumbai

for reaching Ahmedabad and they were to enter Ahmedabad early morning at any time. As the saidinformation was supported by Intelligence Sources, Additional Commissioner of Police (Crime Branch),

Mr.D.G. Vanzara called ACP and PI and under his direct guidance, strong checking was ordered and it wasplanned to catch hold of the car and necessary teams were constituted; one team at Narol Chokdi Four-Roads,one team at CTM Four-Roads, one team at Naroda S.T. Workshop Three-Roads; one team atNaroda-Himatnagar Railway Crossing; one team at Indira Bridge Circle; and one team at Vishala Circle weredeployed and they were comprising of Shri Amin - ACP, PSI Shri P.G. Waghela, PSI Shri C.J.Goswami, PIShri B.D. Vanar, ACP Shri Singal and PI Shri Agrawat. The teams had started watch since 1.30 am in themorning and when there was watch of the team of Shri Amin - ACP, at about 4 am in the morning, at Narol,the above Indica Car with Registration No.MH-02-JA-4786 came from Mumbai and took a right turn towards

Naroda, therefore, they had followed the car. The informations were supplied to other teams on phone and itwas informed on mobile to Shri Singal that the car had taken turn from Naroda-Himatnagar Railway Crossing

to Airport Road and it might run away, therefore, the car is required to be intercepted. Hence, over IndiraBridge, the members of the team comprising of ACP Shri Singal, PI Shri Tarun Barot, PI Shri RI Patel, PIShri K.M. Waghela, PI Shri D.H. Goswami, PSI Shri I.K. Chauhan and other staff in their vehicle proceededtowards Airport Road and near Kotarpur Workshop took a sharp turn and their vehicles were kept close to thedivider and other members of the team had taken different position. At that time, when the Indica Car reducedits speed because of the turning at Kotarpur Water Works, Commando Mr.Mohan Nanjibhai (BuckleNo.1898), who was sitting in the Police Vehicle, under the direction of Shri Amin, fired at the rear tyre ofIndica Car and as a result thereof, the car had come to a halt, close to the divider. At that time, from the leftside, one terrorist came out with AK 56, got down and took his position behind the divider and started firingto the Police Vehicle. The other terrorists, who were sitting in the car had also started firing, but Shri Amin,the informant/complainant himself and Commando Mr.P.C. Mohanbhai and driver of the car Mr.Bhalabhaiand PSI Mr.K.M. Desai got down from the vehicle and took their position on the back side of the vehicle,therefore, they saved themselves and the Commando, under the orders of Shri Amin, started firing in hisself-defence with Government weapon AK 47 Rifle. About 10 rounds were fired and during the same, it waslearnt that, as per the information, they were dangerous terrorists, therefore, ACP Shri Singal had ordered forfiring. The member of his team, Commando Mr.P.C. Mohanbhai (Buckle No.2211) and Commando Mr.A.Chaudhari (Buckle No.842) started firing towards the persons sitting in the Indica Car. Therefore, both theCommandos, by taking their position with their weapons of AK47 fired 32 rounds and 10 rounds with theSten-gun in response to the firing of the terrorists. Simultaneously, the

informant/complainant with his




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service revolver fired four rounds, Shri Amin fired five rounds, Shri Barot fired six rounds and Shri I.K.Chauhan fired three rounds towards terrorists. The cross firing continued for some time and thereafter whenthe firing was stopped, they went near to Indica Car and it was found that on the rear-seat one terrorist, oneterrorist on the driving seat, one female terrorist sitting next to driver and one terrorist near the divider, totalfour terrorists died on the spot.

It

was stated in the complaint that all the deceased were terrorist - Fidayeens of

prohibited Lashkar-e-Taiba

had the conspiracy to kill the Chief Minister of Gujarat, Shri Narendra Modi with suicidal attempt, therefore,they had procured arms and ammunition and wanted to create terrorist activities in India. The other aspectswere also referred in the complaints of having possession of arms and ammunition of foreign automaticweapons without licence, without passports, etc., and also for entering India from Pakistan

without there being proper

visa. The alleged offences in the complaint were under Section 3(2)(a) & (c), 13, 14 of the Foreigners' Act,Section 120B, 121, 121A, 122, 123, 307, 553, 186 of IPC, Section 27, 29 of the Arms Act and Section3(1)(a)(b) and 3(2), 3(3), 20 and 21 of the Prevention of Terrorism Act and Section 135(1) of the BombayPolice Act. The accused shown in the complaint were (1) Jishan Johar @ Jaanbaaz @ Abhas Abdul Gani,resident of Pakistan and the addressed shown was Nar Nanak Kalerbadi, District Gujranwala, Punjab,Pakistan, (2) Amjad Ali @ Salim @ Chandu @ Raj Kumar; (3) Javed resident of Poona and (4) a ladyterrorist, whose name and address was not known. It may be recorded that thereafter, it has come out thataccused No.3 was Javed @ Praneshkumar Pillai and the lady was Ishrat Jahan Raza.

The

investigation of the said complaint was assigned to Ms.Parixita Gurjar, A.C.P. Mahila, Crime Branch,Ahmedabad City. Further, on 14.7.2004, an application was made to the designated Judge, Pota Court by thesaid investigating officer for addition of the charge under Sections 4

and 5 of Explosive Substances Act

and for the offence under Section 4 and 53 of the Prevention of Terrorism Act (hereinafter referred to as'POTA"). It appears that when the substantial investigation was completed and investigation in part was yet tobe completed, at that stage, the mother of deceased Ishrat Jahan named Mrs.Shamima Kausar Mohammedpreferred Special Criminal Application No.822 of 2004, challenging the action by the police contending thather daughter has been killed in the fake encounter, therefore, prayed to direct Central Bureau of Investigation(hereinafter referred to 'CBI' for the sake of convenience) to carry out the investigation of the complaintregistered with DCP, Ahmedabad City by registering the case with them. The prayer is also made in the saidpetition to direct the State to provide adequate compensation to the petitioner but, of course, no argumentswhatsoever were made by the learned Counsel appearing for the petitioner on the said aspect at all at the timeof final hearing of the matter. Therefore, it can be said that the petitioner

restricted the case to direct the investigation by CBI as per above referred prayer only.

It




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appears that in this petition, on September 20, 2004, this Court had passed the order of issuing notice andinterim relief was not granted at that stage and it was observed that it would be open to the petitioner to praythe relief after response from the respondent No.5 State of Gujarat. The matter remained as it was andthereafter was admitted on 18.12.2006 by this Court. In the meantime, the investigation by Ms.Parixita Gurjarhad continued and completed. As per her investigation, it was a case of genuine encounter and the reportthereafter was also submitted by her to the concerned Court. In the affidavit filed by her in the said petition,reference to the investigation is made by her at paragraph 15 of the said affidavit and she has stated the

concluding part of her investigation as under:-

"I

say that in the light of the above evidence and recoveries, it becomes quite clear that all the four were part ofconspiracy of Pak-based terrorist outfit, Lashkar-e-Taiba and they were reaching Ahmedabad with the purposeof killing Shri Narendra Modi (CM/Gujarat).

But for the alertness and bravery of Gujarat Police, they would have caused great havoc in the State. Theywere killed during a genuine police action in self-defence when they fired at the police, which was later onsupported and corroborated by scientific and expert evidences."

It

appears that before the aforesaid matter could be finally heard, the Magisterial Inquiry under Section 176 ofCr.P.C., was conducted by Sub-Divisional Magistrate, Ahmedabad. It also appears that the Sub-DivisionMagistrate, during the course of the inquiry in the Inquiry Case No.13/2004, recorded the statements of thewitnesses and he collected further material during the course of the inquiry. Before the conclusion of theinquiry by the Sub-Divisional Magistrate of Ahmedabad, it appears that on 10.8.2009, the Sub-DivisionalMagistrate forwarded the papers to the Chief Metropolitan Magistrate for holding the inquiry by theJudicial/Metropolitan Magistrate in view of the guidance received by him vide the letter dated 26.6.2009 fromthe State Government that the inquiry for the custodial death should be by the Judicial Magistrate or the

Metropolitan Magistrate. The aforesaid aspect is apparent from the R & P of the learned MetropolitanMagistrate, which was called for by us during the course of hearing in Inquiry No.1/2009. It further appearsthat on 12.8.2009, the Chief Metropolitan Magistrate, thereafter assigned the matter to the MetropolitanMagistrate, Court No.1, for holding inquiry. The proceedings of the said Metropolitan Magistrate, Court No.1shows that he received the papers on 12.8.2009 and on 13.8.2009, summons were issued to Mrs.ShamimaKausar Mohammed, Wife of Mohammed Shamim Raza and mother of Ishrat Raza, and on 17.8.2009, thesummons were issued to Gopinath Pillai, father of deceased Javed Praneshkumar Pillai and Sajeda JavedSheikh. On 31.8.2009, Mrs.Shamima Kausar Mohammed and Arman M. Salim did not remain present and theMagistrate, in view of the statement already recorded on 31.8.2004 before the Sub-divisional Magistratefound it proper not to issue further summons for recording of the statements. Thereafter, on 3.9.2009, father ofthe deceased Javed alias Praneshkumar Pillai,

Gopinath Pillai remained present

and his statement was recorded, whereas the wife of Javed, Sajeda did not remain present, but in view of herstatement already recorded before the Sub-divisional Magistrate dated 10.9.2004, the learned magistrate foundit proper not to issue further summons for recording of the statement. Thereafter on 7.9.2009, the learnedMagistrate has concluded the inquiry under Section 176 of Cr. P.C., and the report has been submitted to theChief Metropolitan Magistrate. The contents of the said report to the extent found proper would be referred toand dealt with hereinafter, but the pertinent aspect is that as per the said report of the learned Magistrate it wasa case of fake encounter and the concerned police officer, with a view to earn favour for further promotionand appreciation of the Hon'ble Chief Minister, had hatched the conspiracy.




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In

the meantime, it appears that the Additional Director General of Police (CID and Intelligence), Gujarat State,Gandhinagar, held an inquiry

and the report has been submitted to the Director General of Police by him vide letter dated 14.10.2004 and inhis inquiry report, he has found that Javed and Ishrat and other two Pakistani terrorists, with a view to achieve

the target of pre-planned conspiracy, had proceeded towards Ahmedabad. He found that all the four personswere involved in the terrorist activities. It is found by him that the attempt should be made to get theassistance of Central Intelligence Authority and there should be exchange of information, which may resultinto avoiding such incidents in future. On the aspects of genuineness of encounter, he has found that theaforesaid all the four persons have lost their lives in the police encounter. It can be said that he has concurredwith the outcomes of the report of Ms.Parixita Gurjar.

It

appears that the petitioners of Special Criminal Application No.822 of 2004 preferred application to expeditethe hearing of Special Criminal Application No.822 of 2004 and for directing the authority to supply

documents. In the said application on 25.7.2008, the order was passed by this Court to place the applicationwith the main matter. Thereafter, it appears that the main matter together with the aforesaid application cameup for hearing before this Court (Coram: K.S. Jhaveri, J.) and on 13.8.2009 this Court passed the order,relevant of which reads from paragraphs 2 to 14 as under:-

2. On

7th

August 2009 in pursuance of a suggestion to explore the possibility of handing over the investigation to highercadres, the matter was adjourned to today.

3. Heard

learned Advocates for the respective parties. Ultimately there is a consensus that a Investigating Team may beconstituted for the purpose of carrying out the investigation in the aforesaid First Information Report beingC.R. No.8 of 2004 registered with DCB Police Station, Ahmedabad City.

4. Mr.

Trivedi, learned Advocate General has submitted a list of Police Officers including Additional DirectorGenerals of Police, Inspector Generals of Police and Deputy Inspector Generals of Police, Superintendents ofPolice and Deputy Superintendent of Police. After discussion Mr. Mukul Sinha, learned Advocate for thepetitioner left the matter to the Court in respect of selection of three officers from the said list.

5. Therefore,

a Team of Investigation of the following three Police Officers shall be constituted for the purpose of inquiringinto the aforesaid First Information Report:

[1] Shri

Promod Kumar, Additional Director General




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[2] Shri

Mohan Jha, Inspector General

[3] Shri

J.K. Bhatt, Deputy Inspector General of Police

Shri

Promod Kumar, Additional Director General will be the Convener of the Team of Investigation.

6. After

constitution of the Team, the present investigation officer shall hand over the relevant materials of the caseincluding record of investigation done so far to the said Team on demand.

7. It

will be open to the petitioner to make suggestions to the Investigating in the matter of further investigationwhere the petitioner feels it necessary.

8. After

considering the suggestion of the petitioner it shall be open to the Investigating Team to decide the line ofaction of investigation.

9. The

Investigating Team will be entitled to appoint subordinate officers not below the rank of Police Inspector, as itdeem fit, to assist them in the investigation like recording statement of witnesses, preparing panchnama, etc.

10. The

Investigating Team will consider all the aspects from every angle, which are relevant for the purpose offinding out whether the incident was a genuine encounter or a fake one.

11. It

will be open to the petitioner to have the inspection of the record which pertains to the daughter of thepetitioner qua the FSL report and the ballistic report about the car in which the petit ioner's daughter wastraveling and if such a request is made the Investigating Team will give such inspection.

12. The

petitioner shall give their suggestion to the Investigating Team within two weeks from today i.e. on or before28th August 2008 and the Investigating Team will commence the investigation and complete the same withinthree months thereafter i.e. On or before 30th November 2009.

13. The




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report of the Investigating Team shall be kept on record of these proceedings before this Court on the nextdate.

14. The

matter is to be treated as part-heard and the same shall be listed for hearing on 30th November 2009."

It

appears that the attention of the Court was not drawn by either side that the inquiry under Section 176 ofCr.P.C., was on and partly undertaken by the Sub-divisional Magistrate, and the Sub-divisional Magistrate,vide letter dated 10.8.2009 had already forwarded the inquiry to the Chief Metropolitan Magistrate and theChief Metropolitan Magistrate had already forwarded the papers to the Metropolitan Magistrate, Court No.1,for further inquiry under Section 176 of Cr.P.C., on 12.8.2009, nor the copy of the order was forwarded to theMetropolitan Magistrate that the order dated 13.8.2009 has been passed by this Court for constitution of SITand the inquiry to be made by the SIT.

It

appears that on 7.9.2009, as referred to herein above the learned Metropolitan Magistrate has concluded theinquiry and has given report. At that stage, initially on 9th September, 2009, Criminal Misc. ApplicationNo.10624 of 2009 in Special Criminal Application No.822 of 2004 was preferred by Shri Girish LaxmanSingal, who is one of the police officers, involved in the alleged incident of encounter and prayed to declarethat the report dated 7.9.2009 of the learned

Metropolitan Magistrate, in purported exercise of power under Section 176 of Cr.P.C., as null and void andthe prayer was also made to issue appropriate directions to the Investigating Team appointed by this Courtvide order dated 13.8.2009 to continue to proceed ahead with the task as directed. The prayer was also madeto grant interim stay against the operation of the report dated 7.9.2009 of the learned Magistrate.

Simultaneously, an application was also made being Misc. Criminal Application No.10621 of 2009 in SpecialCriminal Application No.822 of 2004 by Girish Laxman Singal, the very Police Officer to be impleaded asparty in the proceedings of Special Criminal Application No.822 of 2004.

The

another pertinent aspect is that on the very day i.e. on 9.9.2009, the State of Gujarat, through Secretary, HomeDepartment, preferred Criminal Misc. Application No.10625 of 2009 in Special Criminal Application No.822of 2004 contending that the order passed by the learned Magistrate dated 7.9.2009 in purported exercise of thepower under Section 176 of Cr.P.C., can be said amounting to over-reach the process already issued by thisCourt for constitution of SIT and further contending that there could not have been any question of holdinginquiry under Section 176(1A) by the learned Magistrate, therefore, the report of the learned Magistrate is notonly without jurisdiction, but would throttle

the conduct of the proceedings pending before this Court, therefore, the prayer was made to pass the order forclarification in the matter of above referred

order dated 13.8.2009 passed by this Court and the interim prayer was made to stay execution, operation andimplementation of the report of the learned Magistrate dated 7.9.2009. On 9.9.2009, this Court (Coram:K.S.Jhaveri, J.) stayed the report and directed for further inquiry against the learned Magistrate and thereafter,the matter was carried before the Apex Court and thereafter, vide order dated 19.4.2010, the Apex Court hasdirected for final hearing before the Division Bench of this Court. Hence, the present group of petitions beforeus.




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It

may be recorded that as on today, since Criminal Misc. Application No.10621 of 2009 and No.10624 of 2009have already been disposed of vide order dated 9.9.2009 passed by this Court (Coram: K.S. Jhaveri, J.), weare required to decide Special Criminal Application No.822 of 2004 with Criminal Misc. ApplicationNo.10625 of 2009 only, which are for the prayer of transfer of investigation to CBI with the prayer of theState to clarify in connection with the report of the learned Magistrate in the Inquiry under Section 176 of

Cr.P.C. Criminal Misc. Application No.7570 of 2010 is preferred by Gopinath Pillai, father of Javed @Praneshkumar Pillai for being joined as party in the proceedings of Special Criminal Application No.822 of2004 on the ground that the son of the applicant was also killed in the said alleged encounter on 15.6.2004.The aforesaid appears to be in the proceedings arising from Special Criminal Application No.822 of 2004preferred by the mother of one of the deceased Ishrat Jahan namely; Mrs.Shamima Kausar Mohammed.

The

State has filed interim application through the Secretary, Home Department, being Criminal

Misc. Application No.13526 of 2009 in Misc. Criminal Application No.10625 of 2009 in Special Criminal

Application No.822 of 2004 for extension of time of SIT, which came to be constituted pursuant to the abovereferred order passed

by this Court on 9.9.2009 as SIT has yet to complete the investigation and the work undertaken by it.

Special

Criminal Application No.1850 of 2009 is preferred by Gopinath Pillai, the father of the deceased Javed @Praneshkumar Pillai, contending, inter alia, that his son was in the business of cosmetic and it wasunbelievable that he was Fidayeen, a dread terrorist, and contended that his son has been wrongly killed, andthe prayer is made to direct transfer of investigation to CBI. Hence, the prayer made in the petition is the same

as made by the petitioners of Special Criminal Application No.822 of 2004.

Special

Criminal Application No.2012 of 2009 has been preferred by Shri Girish Laxman Singal, one of the PoliceOfficers involved in the incident of alleged encounter, for quashing and setting aside the report dated 7.9.2009passed by the learned Magistrate under Section 176 of Cr.P.C., by invoking the power by this Court underArticle 226 of the Constitution of India read with Section 482 of Cr.P.C.

Criminal

Misc. Application No.7503 of 2010 has been preferred by Mrs.Shamima Kausar Mohammed, who is alsopetitioner of Special Criminal Application No.822 of 2004 for being impleaded as party in the proceedings ofSpecial Criminal Application No.2012 of 2009, contending that she was required to be impleaded as party inview of the proceedings of Special Criminal Application No.822 of 2009 and the other proceedings arisingtherefrom, including the proceedings before the Hon'ble Supreme Court of India, but has not been joined,therefore, she may be permitted to be impleaded as party.

Similar

application is made by Shri Gopinath Pillai, father of Javed @ Praneshkumar Pillai, to be impleaded as partyin Special Criminal Application No.2012 of 2009 preferred by Shri Girish Laxman Singal, the Police Officerfor quashing and setting aside the report submitted by the learned Magistrate under Section 176 of Cr.P.C.,




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being party interested.

We

have heard Mr.I.H. Saiyed, learned Counsel appearing for the petitioner of Special Criminal ApplicationNo.822 of 2004, Mrs.Shamima Kauser, who is also interested party in the proceedings of other connectedCriminal

Misc. Application as well as Special Criminal Applications, Mr.Mukul Sinha, learned Counsel appearing withMr.A.N.Patel, learned Counsel for Gopinath Pillai, father

of Javed @ Praneshkumar Pillai, petitioners of Special Criminal Application No.1850 of 2009 and the otherapplications made by him being interested party in the other Criminal Misc. Applications as well as SpecialCriminal Applications. We have also heard Mr.Kamal Trivedi, learned Advocate General for the State ofGujarat in all the matters, with Mr.J.M. Panchal, learned Special Public Prosecutor. We have heard Mr.N.D.Nanavati, learned Sr. Counsel with Mr.Mitesh Amin, learned Counsel for Girish Laxman Singal, PoliceOfficer concerned, petitioner of Special Criminal Application No.2012 of 2009 and in all other Criminal Misc.Applications preferred by him in the inter-connected Special Criminal Application. Mr.P.S. Champaneri,

learned Assistant Solicitor General for the Union of

India and Mr.Y.N. Ravani, learned Counsel for CBI.

The

contentions raised by the learned Counsel for the respective parties shall be dealt with hereinafter to the extentfound relevant for deciding the controversy involved in the present group of petitions.

The

present group of petitions mainly involves, two broad aspects; one is challenge to the report of the learnedMagistrate in the inquiry under Section 176 of Cr.P.C., and another is for transferring the investigation toCBI. In the incidental aspect, which may also be required to be considered to the extent for consideration ofthe aforesaid two broad aspects are the exercise of the power of this Court under Section 226 of theConstitution of India for entertainment of a petition, challenging the report of the Magisterial Inquiry underSection 176 of Cr.P.C., and another is for protecting the rights of the citizens under Article 21 of theConstitution of India. The

third aspect, which may also be required to be considered is that whether the investigation deserves to bemade in the alleged encounter if yes, by whom, so as to protect the rights of the citizens as against the powersexercised by the police officers. But at the same time, we have to keep in mind that the matter is not at thestage of investigation and we have to consider as to whether the alleged incident calls for any furtherinvestigation or not and observations to that extent only, keeping in view that the rights of either side may beof the accused or of the victims or all the concerned, may not be prejudiced, in any manner, if ultimately anytrial is to take place. Incidentally, the aspects of the role of the State or the approach of the State in suchmatter also would be an aspect to be considered by us.

It

is a fact that the incident is of alleged encounter. The following aspects are undisputed;

(a) The




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registration of FIR by the police officer against the alleged accused, who

are stated to be terrorists;

(b) The

incident of alleged encounter and loss of lives by all the four persons, including Javed @ Praneshkumar Pillai

and Ishrat Jahan;

(c) The

investigation made by police officer, Ms.Parixita Gurjar and she having found the encounter genuine and alsohaving found the conspiracy hatched by the alleged terrorists for killing the Chief Minister of the State.

In

inquiry report of the learned Magistrate shows that the encounter is not genuine, but a fake one and it has beenstated that the same is out of the conspiracy hatched by the police officer to earn credit for promotion and

appreciation from Hon'ble Chief Minister of the State. It is in this light of the aforesaid facts situation, we arerequired to examine various aspects referred to herein above.

As

the magisterial inquiry and the report submitted by the learned Metropolitan Magistrate is one of the strongbasis by the petitioner of Special

Criminal Application No.822 of 2004 and No.1850 of 2009, before we proceed to examine the aspects ofinvestigation, if any, and the further aspects relating thereto, it would be appropriate to first consider andexamine the legality and validity of the report of the learned Magistrate.

It

was contended by Mr.Nanavati, learned Counsel for the concerned Police Officers and Mr.Kamal Trivedi,learned Advocate General that the report of the learned Magistrate under Section 176 is without jurisdiction. Itwas also submitted that the same could also be said as to over-reach the judicial process and the orders passedby this Court in Special Criminal Application No.822 of 2004. It was alternatively submitted that even if thisCourt finds that the learned Magistrate had power to hold an inquiry under Section 176(1A) of Cr.P.C., thenalso the finding recorded by the learned Magistrate in the inquiry are absolutely perverse, not supported byany material whatsoever and also without following the mandatory procedure, therefore, it was submitted thatthe report be quashed and set aside and such report cannot be at all considered by this Court for furtherconsidering the matter on the aspects of transfer of investigation to any SIT or any other agency.

Whereas

Mr.Syed as well as Mr.Sinha, learned Counsel appearing for respective parties, who are parents of thedeceased, contended that the learned Magistrate was well within his power to inquire and to submit report,therefore, it cannot be said to be without jurisdiction. It was also submitted that the State, which is otherwiserequired to protect the rights of the citizen as against the police officer, should not and cannot challenge thereport of the learned Magistrate, even if its own officers are to face consequences on account of such report.

It




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was submitted that the finding of the learned Magistrate is with the basis and even if two views are possible,the matter would require further investigation or inquiry. It was also submitted that at the stage of the reportunder Section 176 Cr.P.C., by the learned Magistrate, the petition for

challenging the legality and validity of the report, either by the State or by the concerned Police Officer, whoare involved in the incident, cannot be maintained under

Section 482 of Cr.P.C., or under Article 226 or 227 of the Constitution of India. It was submitted that whenthe matter is at the stage of inquiry under Section 176 Cr.P.C., and the registration of FIR is yet to take placeagainst the concerned Police Officers, it cannot be said that any right is prejudiced or any right has accrued tothe proposed accused, who are police officers to challenge the said report and thereby to stall the furtherprocess of law. In the submission of both the learned Counsel for the aforesaid parties, the report of thelearned Magistrate is valid and the challenge to the said report cannot be entertained by this Court and mayfurther be considered by this Court for the purpose of considering the matter for investigation through theother independent agency like CBI.

Whereas,

the learned Assistant Solicitor General for the Central Government supported the report of the learnedMagistrate by contending that the same is within the jurisdiction of the learned Magistrate and cannot betermed as without jurisdiction. The role of CBI, in any case, would arise only if the inquiry or investigation isassigned to CBI by this Court, therefore, on behalf of CBI, no submissions have been made on the said aspect,about the legality and validity of the report of the learned Magistrate.

Section

176 of Cr.P.C., prior to the amendment of 2005 reads as under :-

Section

176 of the Code of Criminal Procedure, 1973 (prior

to amendment made in 2005) :

When

any person dies while in the custody of the police or when the case is of the nature referred to in clause (i) orclause (ii) of sub-section (3) of Section 174], the nearest Magistrate empowered to hold inquests shall, and inany other case mentioned in sub-section (1) of Section 174, any Magistrate so empowered may hold aninquiry into the cause of death either instead of, or in addition to, the investigation held by the police officer,and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry intoan offence.

The Magistrate

holding such an inquiry shall record the evidence taken by him in connection therewith in any mannerhereinafter prescribed according to the circumstances of the case.

Whenever such

Magistrate considers it expedient to make an examination of the dead body of any person who has beenalready interred, in order to discover the cause of his death, the Magistrate may cause the body to be




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disinterred and examined.

Where an inquiry is

to be held under this section, the Magistrate shall, wherever practicable, inform the relatives of the deceasedwhose names and addresses are known, and shall allow them to remain present at the inquiry.

Section

176, after the amendment w.e.f. 23.6.2006 reads as under :-

Section

176 of the Code of Criminal Procedure, 1973 (after

to amendment made in 2005

w.e.f. 23.6.2006):-

[***]

When the case is of the nature referred to in clause (i) or clause (ii) of sub-section (3) of Section 174], thenearest Magistrate empowered to hold inquests shall, and in any other case mentioned in sub-section (1) ofSection 174, any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or inaddition to, the investigation held by the police officer, and if he does so, he shall have all the powers inconducting it which he would have in holding an inquiry into an offence.

[(1A) Where, (a)

any person dies or disappears' or

(b) rape is alleged

to have been committed on any woman, while such person or woman is in the custody of the police or in anyother custody authorised by the Magistrate or the Court, under this Code in addition to the inquiry orinvestigation held by the police, an inquiry shall be held by the Judicial Magistrate or the MetropolitanMagistrate, as the case may be, within whose local jurisdiction the offence has been committed.]

The Magistrate

holding such an inquiry shall record the evidence taken by him in connection therewith in any mannerhereinafter prescribed according to the circumstances of the case.

Whenever such

Magistrate considers it expedient to make an examination of the dead body of any person who has beenalready interred, in order to discover the cause of his death, the Magistrate may cause the body to bedisinterred and examined.

Where an inquiry is




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to be held under this section, the Magistrate shall, wherever practicable, inform the relatives of the deceasedwhose names and addresses are known, and shall allow them to remain present at the inquiry.

The Judicial

Magistrate or the Metropolitan magistrate or Executive Magistrate or police officer holding an inquiry orinvestigation, as the case may be, under sub-section (1A) shall, within twenty-four hours of the death of a

person, forward the body with a view to its being examined to the nearest Civil Surgeon or other qualifiedmedical man appointed in this behalf by the State Government, unless it is not possible to do so for reasons tobe recorded in writing.]

Explanation. In

this section, the expression 'relative' means parents, children, brothers, sisters and spouse."

The

aforesaid shows that prior to 23.6.2006, the magisterial inquiry in all cases, for the cause of death was to be

held by the Magistrate empowered to hold inquest,

which, in the State of Gujarat, is Sub-divisional Magistrate/Executive Magistrate concerned of the area.Whereas, after 23.6.2006, in a case where the death is in the custody of the police, or in any other custodyauthorised by the Magistrate or the Court, the inquiry is to be held by the Judicial Magistrate or theMetropolitan Magistrate, as the case may be, within whose jurisdiction the offence has been committed.Further Sub-section (5) of Section 176, after amendment on 23.6.2006, shows that the Magistrate concernedwill have the power to forward the body of the deceased to Civil Surgeon or other qualified Medical man. It istrue that the date of incident is 15.6.2004. Therefore, the aspect of applicability of the amended provisions ofthe Act may also be required to be considered.

The

learned Counsel for the police officer and the State did contend that as the incident is during the period priorto the Amendment, Metropolitan Magistrate had no authority to hold the inquiry and the inquiry, if any, couldbe held by Sub-divisional Magistrate. It was also submitted that in a case of encounter, even otherwise also itcannot be said that the person has expired in the police custody, therefore, even if considered that theamendment applies, the requirement of Section 176(1A) were not satisfied, therefore, also the learnedMagistrate could be said as had no jurisdiction.

Holding

of an inquiry, in our view, can be said as provision of law regulating the procedure for the inquiry in the caseof custodial death. It is by now well settled that when any procedural law is amended by the Legislature orParliament, it will have a retro-active character and to be applied retrospectively namely; that it would applyto all pending cases covered by the said provision. The reference can also be made to the decision of the ApexCourt in the case of 2006

(1) SCC 141 Sudhir G. Angur & Ors. Vs. Sanjeev and Ors., reported in

(2006) 1 SCC, 141 and

more particularly the observations made by the Apex Court at paragraph 11 of the said decision




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on page 147 and 148. Therefore, it is not possible to accept the contention of the learned Counsel Mr.Nanavatias well as Mr.Trivedi, learned Advocate General that merely because the incident is of 15.6.2004, theamended provisions of Cr.P.C., under Section 176(1A) would not apply. We are inclined to take the aforesaidview, in view of two further peculiar circumstances; one is that the inquiry before the Sub-divisionalMagistrate prior to 23.6.2006 was not completed and had the inquiry been completed prior to the amendmentthe matter would have been different. Second is that as per the opinion of the State Government itself, videabove referred letter addressed by the Sub-divisional magistrate to the Chief Judicial Magistrate, pending

inquiry in the case of custodial death were to be assigned to the Judicial Magistrate or the MetropolitanMagistrate of the area concerned.

On

the aspects of no applicability to the provisions of Section 176(1A), in the case of a death in police encounter ,we find that such contention raised by

Mr.Nanavati as well as learned Advocate General Mr.Kamal Trivedi is meritless inasmuch as theinterpretation of the word 'custody' as sought to be canvassed, if restricted to only actual physical custody,after arrest, it would result into frustration of the intention of the Parliament for holding of judicial inquiry by

the Magistrate concerned. Even otherwise also the word 'custody' is not defined under Code of CriminalProcedure. Therefore, custody is to be understood in normal parlance as against the police powers. Literalmeaning of the word 'custody' would mean to get control of the physique or the movement of the personconcerned. Such control can be by putting the person behind bars and it can only be by controlling thephysical movement of the person concerned. In the case of Niranjan Singh and Anr. Vs. Prabhakar RajaramKharote and Ors., reported in AIR 1980 SC 785, the

Apex Court at paragraph 7, while interpreting the word 'custody' within the meaning of Section 437 ofCr.P.C., observed the relevant of which reads as under :-

"7. ...

This word is of elastic semantics but it score meaning is that the law has taken control of the person. Theequivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a maninto informal custody but not arrested him, have detained him for interrogation but not taken him into formalcustody and other like terminological dubieties are unfair evasions of the straightforwardness of the law. Weneed not dilate on this shady facet here because we are satisfied that the accused did physically submit beforethe Sessions Judge and the jurisdiction to grant bail thus arose."

Further,

it was observed at paragraph 9 as under:-

"9. He

can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remandto judicial or other custody. He can be said to be in judicial custody when he surrenders before the Court andsubmits to its direction. ..."

The

present case is a case of police encounter, where the police officers in exercise of their powers wanted toeffect the arrest and at that stage when they wanted to intercept the car and catch hold of the persons in orderto apply force, may be by way of self-defence, the incident had happened. Therefore, it can be said that the




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police while controlling the physical movement of the alleged accused have exercised their police power andsuch being the situation, it can be said that the provisions of death in the custody for the purpose of holdinginquiry can be made applicable.

The

reference may also be made to the decision of Division Bench of the Allahabad High Court in

the case of Hari Krishna

Maheshwari @ Hari Maheshwari Vs. State of U.P., reported in 1997(1) Crimes 432 and the

observations made at paragraph 18, the relevant of which reads as under :-

"Accordingly,

we are of the view that the opening words of Section 176(1) of the Code of Criminal Procedure, namely;"When any person dies while in the custody of the police" should be interpreted also to mean that "Whenever

the police claims to have killed any person in encounter". This interpretation of Section 176 of the Code ofCriminal Procedure will ensure protection of Human Rights in all cases of death where the police claims tohave killed the person in encounter and in such cases, the Magistrate will be under an obligation to inform therelatives of such person. This also will safeguard any clandestine effort on the part of the police to kill aperson in its custody and then claim that the person has been killed in an encounter."

The

reference may also be made to another decision of the decision of the Apex Court in the case of State of A.P.v. Gangula Satya Murthy, reported in (1997) 1 SCC, 272 and more particularly the observations made atparagraph 19, relevant of which reads as under :-

"19. The

other reasoning based on Section 26 of the Evidence Act is also fallacious. It is true any confessions made to apolice officer is inadmissible under Section 25 of the Act and that ban is further stretched through Section 26to the confession made to any other person also if the confessor was then in police custody. Such 'custody'need not necessarily be post-arrest custody. The word 'custody' used in Section 26 is to be understood in apragmatic sense. If any accused is within the ken of surveillance of the police during which his movementsare restricted then it can be regarded as custodial surveillance for the purpose of the section. If he makes anyconfession during that period to any person be he not a police officer, such confession would also be hedgedwithin the banned contours outlined in Section 26 of the Evidence Act."

Therefore,

it is not possible for us to accept the contention that the report of the learned Magistrate is without jurisdictionor competence, since the same is that the incident prior to 23.6.2006 or that since there was no formal arrest,they were not in the police custody, even if the amended provisions were to apply to the incident prior to23.6.2006.

Much

grievance has been raised by the learned Counsel for the police officer Shri N.D. Nanavati and Shri KamalTrivedi, Advocate General for the State on the aspects of findings recorded by the learned Magistrate on the




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surmises and conjunctures and not supported by any valid material for such purpose. Whereas, the learnedCounsel appearing for the relatives of the deceased supported the report of the learned Magistrate underSection 176 of Cr.P.C.

In

order to trace the material in support of the findings we had called for the record and proceedings of the

learned Magistrate. It is true that on the aspects of any alleged conspiracy to earn credit and thereby to havepromotion in the service and to have appreciation of the Hon'ble Chief Minister by the police officer, thefindings recorded by the learned Magistrate are absolutely without there being any material for such purpose.

Further

it was not for the learned Judicial Magistrate to opine for the consequential benefits as ought to have been orcould have been derived by the concerned Police Officers. Even if it is considered that such aspects had anyrelevance for the purpose of tracing the motive being one of the causes of death, it must be supported by anyevidence or material on record. There is no material as observed earlier in the file of the learned Magistrate torecord the findings in the inquiry as stated in the report. Therefore, to that extent such findings can be said as

without there being any material whatsoever. But the matter does not end there on the aspects of otherfindings recorded by the learned Magistrate based on; (1) the presence of well developed rigor mortis on thebody of the deceased at the time of postmortem; (2) the ballistic report for the use of the bullet; (3)non-availability of the signs of gun-powder in the hand-wash report; (4) the entry and exit wounds of thebullet marks on the body of the person concerned; (5) the bullet marks on the vehicles, Indica Car could notbe said to be without there being no existence Of such probabilities, nor can it be said without there beingabsolutely no material whatsoever for such purpose. We may record the word of caution that our aforesaidobservations are limited to the extent of considering the report of the learned magistrate only for the purposeof examining the controversy as to whether the further investigation is called for or not and it will neither beconsidered as a prima facie observations, nor shall it be considered as a finding by this Court, in any mannerwhatsoever, which may prejudice the rights of either party to the proceedings at the further investigation, if it

is so ordered or at the trial, as the case may be.

But

at the same time, it does appear to us that the learned Magistrate has shown undue haste in concluding theinquiry without taking assistance of the experts, which was as such required in view of the complicated issuesas were to be considered by him for the purpose of tracing the truth as to whether the probabilities, which hehas considered is near to the truth or not or same is supported by other experts or not. It is hardly required tobe stated that the learned Magistrate had the power as if the inquiry could be held by him in connection withany offence committed within his jurisdiction and the span of such inquiry could be extended to as if theinquiry under Section 202 of Cr.P.C., which pertains to the inquiry when a complaint is received for anyoffence, but the learned Magistrate proposed to hold the inquiry by just issue of process. It does appear thatspan of inquiry and the scope and ambit of the power of the learned Magistrate, which appears to us as has notbeen fully considered by the learned Magistrate and the learned Magistrate, upon having acted on thestatements as were recorded by the Sub-divisional Magistrate, has proceeded to examine the matter and hasrecorded the findings. Further, the original record shows that all proceedings of Rjokam/daily

sheets are written on plain

paper sheets and not printed papers used for writing the Court proceedings. Further, the whole inquiry reportof more than 200 pages is hand-written. Hence, as observed earlier, such an approach could be said as anundue haste shown by the learned Magistrate in concluding the inquiry, which, to us, remains unexplained.But if the finding in the report is supported by the material its efficiency would not be lost, nor any finding




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can be considered in absence of any material for such purpose.

The

aforesaid takes us to examine the value to be attached to the report of the learned Magistrate in a case wherethe cause of death found by the learned Magistrate other than what is reported to him by any informant or thepolice, as the case may be. In a case where the cause of death found by the learned Magistrate is not in

conformity with the information supplied to him and he finds that the cause of death is otherwise, may be onaccount of the fake encounter or the police officers have exceeded the exercise of the power or that anyevidence is suppressed and is wrongly shown as an accidental death, then in that case, the report of theMagistrate could be said as having a recommendatory value to the State or the victim, as the case may be, forfurther putting law into motion. May be that the victim may file complaint or the State, through its officers, inorder to see that the law is further put into motion may get the complaint registered against the allegedoffender on account of the report of the learned Magistrate. At that stage, once the FIR is registered, theinvestigation is to be independently conducted by the investigating officer in an impartial manner and anystatement made either before the police in the inquiry of accidental death or before the learned Magistrate inthe inquiry under Section 176, may hold good only to the extent of getting clue for the further investigationand for the information by the investigating officer and it would be for the investigating officer to further

examine the matter and to apply his mind independently. Even after the investigation is concluded and thetrial is to take place, at that stage also, any statement recorded before the learned Magistrate in the inquirywould not be treated as an evidence for such trial, save and extent for the purpose of impeaching thecredibility of the witnesses as per the Evidence Act, if the contingencies so arise. Reference may be made tothe decision of the Apex Court in the case of Gauri Shanker Sharma v. State of U.P., reported in 1990 (Suppl.)SCC, 656, and more particularly the observations made by the Apex Court at paragraph 6, the relevant ofwhich reads as under :-

"6. ...

However, the evidence of PW 6 was challenged on the ground that he had in his statement before M.M.

Swarup, Executive Magistrate, affirmed the defence of AI that the deceased was apprehended from near aculvert in village Harma-Harora on 20.10.1971. The learned trial Judge negatived this contention as thecertified copy of the statement said to have been made to M.M. Swarup in an enquiry under Section 176 of theCode of Criminal Procedure was inadmissible in evidence since the said enquiry could not be equated to a

judicial proceedings and was, therefore, inadmissible in evidence. He was of the view that the same could notbe admitted in evidence under Section 90 of the Evidence Act. In this view the proper course was to call forthe original statement, confront the witness with the contradictory part and on proof use it as evidence todiscredit the witness. We agree with the learned trial judge that the contents of a certified copy of thestatement recorded under Section 176 of the Code would not be admissible in evidence unless thecontradiction is proved by putting it to the witness in cross-examination and the maker has had an opportunityto admit or deny it. In our view it has to be proved like any other previous statement. ..." (Emphasis supplied)

It

is in this light of the aforesaid evidentiary value we have to further examine the aspects for maintainability ofpetition preferred by the Police Officer for quashing and setting aside the report of the learned Magistrate andalso the contention raised by the State for clarification in connection with the report of the learned Magistrate.

If

the report is to hold only a recommendatory value by way of fact finding inquiry, it is not possible for us toaccept the contention of the learned Counsel appearing for the police officer, Shri N.D. Nanavati that theconcerned person, who is referred to in the report under Section 176 of the Cr.P.C. will have right to challenge




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such report. At the same time, it is not possible for us to accept the contention of the learned Counsel for therelatives of the deceased that the functioning by the learned Magistrate or the report submitted by him isbeyond the scope for exercise of the power by this Court under Article 226 of the Constitution. It is hardlyrequired to be stated that the power of this Court under Article 226 of the Constitution is wide enough tocover the functioning of a statutory authority may be on administrative side or may be on judicial side. Even ifit is considered for the sake of consideration that the report of the learned Magistrate is like an administrativedecision under Section 176 of Cr.P.C., then also it is by now well settled any administrative act of any State or

its agency is subject to judicial review under Article 226 of the Constitution of India. If the functioning of thelearned Magistrate, if considered for the purpose of holding inquiry, though the ultimate outcome at theinquiry may have only recommendatory value and no prejudice is caused to the rights of any party who aredirectly or indirectly connected therewith, then also it would not be outside the scope of Article 226 of theConstitution of India. It is also by now well settled that functioning by any authority in the matter of holdinginquiry, may be either affecting adversely any party or otherwise would also be subject to judicial reviewunder Article 226 of the Constitution. But at the same time, the jurisdiction of this Court under Article 226 isdiscretionary and there are self-imposed restrictions. Further, unless it is satisfactorily demonstrated before theCourt that any prejudice is caused to the party, which invokes the jurisdiction before this Court under Article226 of the Constitution, this Court may decline the entertainment of the dispute or may decline the exercise ofthe power under Article 226 of the Constitution of India, either by applying the theory of useless formality or

no useful purpose is to be served or by declining the exercise of the discretionary jurisdiction, may be on theground that no prejudice is caused by an outcome of the report or may be on the ground that further process ofputting the law into motion is sought to be throttled at the initiation or inception notwithstanding theavailability of all rights and defence to the proposed accused, if the complaint is registered for the offencebased on such report. It is also by now well settled that if the complaint is filed before the Magistrate underSection 201 of Cr. P.C., and the Magistrate decides to hold the inquiry and the findings at the inquiry isrecorded, but until the process is issued to the accused, the proposed accused has no say in the matter, nor hashe any right to challenge or interfere in the proceedings at the stage of holding the inquiry at the stage ofinquiry under Section 202 of Cr.P.C. Therefore, keeping in view the said aspect, the maintainability is to beconsidered. We find that keeping in view the aforesaid facts and circumstances, it would not be a case toexercise the power under Article 226 of the Constitution of India at the instance of the petitioner, who is a

police officer and thereby to quash and set aside the report of the learned Magistrate under Section 176 ofCr.P.C.. However, so far as certain observations made by us to the report of the learned Magistrate isconcerned, we may further observe that the same are only to the extent of further considering the case as towhether the investigation is to be made for finding out the genuineness of the encounter and the assignment ofthe investigation to any agency or not as prayed by the relatives of the victims while exercising the powerunder Article 226 of the Constitution of India, more particularly because of the stand of the State Governmentfor not accepting the report and taking up of the stand that the State Government has a different view againstthe report of the learned Magistrate. It is under these circumstances, we have examined the report of thelearned Magistrate for further putting the law into motion while exercising power under Article 226 of theConstitution of India, as the prayer of the petitioners, who are relatives of the victim is to further investigateinto the complaint by transferring the investigation to other agency. The observations made by us may not beunderstood to mean that we have exercised the power under Article 226 of the Constitution at the instance ofthe police officers, who are referred to in the report of the learned Magistrate or even at the instance of theState, which has also challenged the report of the learned Magistrate, but such observations are forexamination of the report for considering the case of petitioners, who are parents of the deceased forappropriate directions in the matter after considering the stand of the State Government.

At

this stage, we also find it proper to observe that in a matter where the learned Magistrate has reported in theinquiry under Section 176 of Cr.P.C., in the case of custodial death or an encounter of such type, it wouldhardly be fair on the part of the State to side with any persons, who are referred to or found to have beeninvolved in the incident. The role of the State is to exercise and supplement its sovereign power. The




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substratum of such sovereign power could be maintained only if the State takes all care to see that theoffenders are booked and the innocent persons are not harassed. The State, in any action against any offender,must be the pioneer in putting the law into motion and the State has the domain of the prosecution against theaccused in the prevailing system of administration of justice. The role of the State being a welfare State isexpected to be of an independent and neutral role, without siding with either parties, may be its own officer orthe citizen in a case when the matter pertains to commission of offence. The attempt on the part of the Statewould be to explore the truth and to supplement the action in furtherance of tracing or exploring the truth. The

welfare State cannot be expected to throttle any process, including that of by initiation of any action in theCourt of law, which may have adverse effect in putting the law into motion. The reason being that it is for theState to ensure the enforcement of law. In a democratic welfare State the role of the State has to be infurtherance to enforcement of the law and not for creation of any hurdle, obstacle or hindrance, which mayresult into throttling any process of smooth enforcement of law. But thereby it cannot be said that the Statewill have no remedy whatsoever, if it finds that the report of the learned Magistrate is beyond jurisdiction orunwarranted. As observed earlier, if the report of the learned Magistrate under Section 176 is to be treated ashaving recommendatory value, it is for the State to normally accept the report and to decide whether anyfurther action is called for or not. If there are extraordinary very strong and valid reasons for non-enforcementof the report of the learned Magistrate, it may do so, but such decision of the State action would be subject to

judicial review of this Court under Article 226 of the Constitution of India. If, while taking such decision,

there is dereliction or abdication by the State has itself from its statutory duty cast upon it or has failed tomaintain the principles of welfare State for enforcing the rule of law, the Constitutional Court under Article226 of the Constitution would be well within its power to issue appropriate mandamus to the State and theparties affected thereby may have recourse to law as permissible. All such observations lead us to record oneconclusion that the State is expected to function in an impartial manner, in cases where the question is forenforcement of law in connection with the alleged offence or in connection with the fact finding inquiry to beheld by the competent authority concerned. If the action of the State is tested in that light, it does appear to usthat the State could have avoided the course adopted by it for challenging the report of the learned Magistrateunder Section 176 of Cr.P.C., by invoking the powers of this Court under Code of Criminal Procedure orunder Article 226 of the Constitution of India, as the case may be, but it appears that as this Court, at therelevant point of time, had also directed for investigation by SIT and the process was on, the action for

clarification could not be said to be without any justification whatsoever but we cannot countenance theapproach of the State for challenging the report of the learned Magistrate on the other grounds as stated in theapplication made by the State and of making submissions, which, if accepted would result into throttling theprocess for enforcement of law.

Under

these circumstances, we find that when this Court is to finally consider and rule on the aspects of whetherfurther investigation is to be made or not and if yes by whom, including the present SIT or otherwise, nouseful purpose would be served in further recording the conclusion on the aspects of the role of the State, butsuffice it to state that the challenge made by the State to the report of the learned Magistrate under Section 176of Cr.P.C., cannot be sustained at the instance of the State.

The

aforesaid takes us to further examine the aspects of the substantial controversy to be considered for furtherinquiry or investigation in the alleged incident and if yes, by whom ?

As

recorded by us earlier, as per the report of the investigation made by the Police Officer, Ms.Parixita Gurjar,the incident of encounter was found to be genuine. It has also transpired in her investigation that all the fourpersons were terrorists, out of which, two were Pakistanis and members of Lashkar-e-Taiba and the other two




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persons namely; Javed @ Praneshkumar Pillai and Ishrat Jahan were Indian nationals, but associated with theactivities of Lashkar-e-Taiba and all the four persons had hatched conspiracy of killing the Chief Minister ofGujarat State and for such purpose, they had entered Ahmedabad as per the accusation made in the FIR.

As

per the investigation made by Special Additional DIG (CID and Intelligence), there was no further detailed

investigation, but he has mainly relied upon the statements recorded before the Investigation Officer,Ms.Gurjar and on the aspects of genuineness of the encounter, he has found that all the four persons have losttheir lives in the police encounter. In substance, as observed earlier, he has concurred with the report ofMs.Gurjar, Investigating Officer.

In

an inquiry under Section 176 of Cr.P.C., it does appear that the statements were recorded of all the persons,except Mr.Gopinath Pillai, before the Sub-divisional Magistrate and even for Mr.Gopinath Pillai, thestatement was earlier recorded, but in response to the summons issued by the learned Metropolitan Magistrate,statement was given by him. The learned Metropolitan Magistrate has, for all the purpose, had no material,

except the material as was submitted before the Sub-divisional Magistrate and the statement of Mr.GopinathPillai, which is said to have been recorded before him. The findings of the learned Magistrate in the report oncertain aspects, if considered, it appears that he has been guided by the presence of rigor mortiswell-developed on the entire bodies of the deceased, therefore, he has drawn the inference that the death ofJaved @ Praneshkumar Pillai and Ishrat Jahan could be within 12 to 24 hours prior to the postmortem i.e.between 3.40 p.m. of the 14th day of June 2004 and 3.40 a.m. of the 15th day of June, 2004. The secondaspect considered by the learned Magistrate is on the exist and entry wounds of the bullet injuries sustained byboth the deceased, therefore, he has drawn inference that the bullets must have been fired from close range, asthe exit wounds in the body caused by the bullets were larger in size than the entry wounds, the bullets werenot fired from a distant place, as stated in the encounter report. The learned Magistrate, in view of the absenceof remains of exploded ammunition in the form of nitrite and lead from the samples of the hand wash of both

the deceased, as per the FSL Report, has drawn inference that the deceased did not operate any weapon witheither of their hands. As per the postmortem report of both the deceased, bullets were found near the body ofthe deceased and the FSL - Ballistic Report shows that such bullets are common for both AK 47 and AK 56Rifle, but the learned Magistrate has found that the firing has been made from AK 56 Rifle and notGovernment AK 47 Rifle, therefore, he has drawn the inference of non-genuineness of the encounter, but suchinference can be said to be doubtful. Even on the aspects of undigested food particles found from the bodies ofthe deceased, the learned Magistrate, for the purpose of drawing inference, has taken the estimated time forconsumption of food by both the deceased and has drawn the inference that on 14.6.2004 both the deceasedmust have died and such inference is also doubtful. It is true that on the aspects of operative activities of thedeceased as terrorists, the learned Magistrate has recorded the findings and drawn the inference, which, assuch, is not supported by any record of the investigation made by the Sub-divisional Magistrate prior to thepapers received by him, nor any material produced before him and further his finding against the policeofficers for earning credit and to have promotion by getting appreciation of the Hon'ble Chief Minister, byshowing the incident of encounter of terrorists also appears to be, not at all supported by any materialwhatsoever. Therefore, if the aforesaid findings recorded by the learned Metropolitan Magistrate areconsidered, mainly on the aspects of approximate time of death and on the aspect of bullets fired from theweapon at a close range, and the finding that the deceased had not fired any weapon, even if not given fullweightage, as sought to be described by the learned Magistrate and are treated as having a recommendatoryvalue, then also it can be said as a reasonable probability expressed by the learned Metropolitan Magistrate inthe Inquiry under Section 176 of Cr.P.C., on the basis of the materials as referred to hereinabove.

The




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aforesaid is coupled with two relevant circumstances emerging from the report of the SIT constituted pursuantto the earlier order passed by this Court that the weapons, which were used by the Police Officers, who firedat the deceased, had not been deposited with the SIT and the same had not been sent for ballistic opinion tothe Forensic Science Laboratory, meaning thereby, the weapons were not recovered by the InvestigatingOfficer for getting the ballistic opinion in the course of the investigation when was made either by Ms.ParixitaGurjar, or by Shri Mahapatra, Additional DGP. Further in the very report of SIT, it has been stated that thetelephone/mobile call details of the concerned Police Officers are yet to be collected, which means that the

call details of the Police officers at the relevant point of time were not collected by the Investigating Officer,who undertook the investigation. Both the aforesaid aspects go to show that the incident of encounter isfurther required to be investigated. The another aspect, which may have the bearing to the investigation is thatat the time when the interim order was passed by this Court for constitution of SIT, the State had also agreedfor further investigation. The aforesaid circumstances can be said as valid basis for further investigation tofind out as to whether the encounter was genuine or the deceased were killed prior to the alleged encounter.

Attempt

was made by Mr.Trivedi, learned Advocate General as well as Mr.Nanavati, learned Counsel for theconcerned Police Officer to contend that when the police officers in discharge of their duties, with a view to

curb terrorist activities and thereby for the safety of the State, have exercised the power, the champions ofhuman rights are making hue and cry by pointing the finger at the police officers and thereby creatingobstacles in discharge of their duties. It was submitted that as per the investigation made so far by theInvestigating Officer of the rank of Assistant Commissioner of Police and the further inquiry made by theAdditional DGP, all the four deceased were rank terrorists and they were involved in terrorist activities,therefore, this Court, keeping in view the said aspects, may not give much consideration when a complaint isbrought by the relative just by saying that the encounter was a fake one and there was no genuine encounterby projecting them as law-abiding citizens or not involved in the terrorist activities.

It

is true that the investigation so far did reveal for the alleged association of both the deceased namely; Javed @Praneshkumar Pillai and Ishrat Jahan, but if the genuineness of the encounter is at doubt, this Court cannotproceed on the basis that since the deceased were associated with the terrorist activities, even if their closerelatives so desire by invoking the power of this Court, the same should be discarded on a mere ground thatthe persons concerned were associated with the so-called terrorist activities.

At

this stage, we may profitably advert to the views expressed by the Apex Court in the case of People's Unionfor Civil Liberties Vs. Union of India and Anr., reported at (1997) 3 SCC 433 and more particularly theobservations by the Apex Court at paragraph 6, the relevant of which reads as under :-

"6. ...It

is true that Manipur is a disturbed area, that there appears to be a good amount of terrorist activity affectingpublic order and, may be, even security of that State. It may also be that under these conditions, certainadditional and unusual powers have to be given to the police to deal with terrorism. It may be necessary tofight terrorism with a strong had which may involve vesting of good amount of discretion in the policeofficers or other paramilitary forces engaged in fighting them. If the version of the police with respect to theincident in question were true, there could have been no question of any interference by the court. Nobody cansay that the police should wait till they are shot at. It is for the court to say how the terrorists should be fought.We cannot be blind to the fact that even after fifty years of our independence, our territorial integrity is notfully secure. There are several types of separatist and terrorist activities in several parts of the country. They




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have to be subdued. Whether they should be fought politically or be dealt with by force is a matter of policyfor the Government to determine. The courts may not be the appropriate forum to determine those questions.All this is beyond dispute. But the present case appears to be one where two persons along with some otherswere just seized from a hut, taken to a long distance away in a truck and shot there. This type of activitycannot certainly be countenanced by the courts even in the case of disturbed areas. If the police hadinformation that terrorists were gathering at a particular place and if they had surprised them and arrestedthem, the proper course for them was to deal with them according to law. "Administrative liquidation" was

certainly not a course open to them."

In

the very judgement, the Apex Court referred the decision of the Division Bench of the Andhra Pradesh HighCourt in the case of Challa Ramkonda Reddy v. State of A.P., wherein it has been observed as under:-

"In

our opinion, the right to life and liberty guaranteed by Article 21 is so fundamental and basic that nocompromise is possible with this right. It is 'non-negotiable'. ... The State has no right to take any action which

will deprive a citizen of the enjoyment of this basic right except in accordance with a law which is reasonable,fair and just."

Therefore,

we cannot countenance the contention that no investigation is called for even if the genuineness of theencounter is at doubt. It is hardly required to be stated that if the deceased have lost their lives in the encounterand the police officers were well within their power, it could be said to be deprivation of life and libertythrough a process established by law, but if the truth ultimately found is otherwise, it would call for furtheraction in accordance with law. Under these circumstances, we find that the present case is not such where noinvestigation is called for on the aspects of genuineness of the encounter.

The

next aspect is if the investigation is to be made on the aspect of genuineness of encounter, such investigationby whom?

The

contention of the learned Counsel for the petitioners - relatives of the deceased is that keeping in view the factthat high-ranked police officials are involved, the investigation is required to be given to CBI, which is acentral agency.

The

learned Counsel appearing for the petitioners also contended that the investigation, if made through thepresent SIT, there would not be any credibility, because other high-ranked police officers of the State areinvolved in the incident. It was also submitted that the approach of the State Government in the presentlitigation is to side with the police officers, who are involved in the incident and the said aspect is apparentfrom the litigation initiated by the State Government against the report of the learned Magistrate under Section176 of Cr. P.C. and as on today, the contention of the State Government is to oppose and challenge the reportof the learned Magistrate under Section 176 of Cr. P.C. It was, therefore, submitted that in view of suchcircumstances, if the present SIT is continued, they will not be able to properly conduct the investigation tofind out the truth, therefore, with a view to provide more credibility and to instill confidence the investigation




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deserves to be assigned to CBI.

Whereas,

on behalf of the police officer, it was submitted by Mr.Nanavati, learned Counsel that he has no objection ifthe investigation is conducted by CBI or any other agency, including SIT already constituted by this Court.

Whereas,

on behalf of the State, it has been submitted by Mr.Kamal Trivedi, learned Advocate General that the SITalready constituted can further investigate into the matter. He also submitted that the approach of the CentralGovernment by filing earlier affidavit, was for not to take up the investigation and by subsequent affidavit,has shown readiness to investigate into the incident lacks bonafide. It was submitted that there have been moreserious and heinous offences having national and international ramification in the recent past, which areinvestigated by the police officers of the respective States and he elaborated the example as that of Parliamentattack case, Akshardam attack case, serial bomb blasts at Mumbai, etc. It was submitted that all such offences,though had national and international ramification, were registered and successfully investigated by the policedepartments of the respective States. He contended that there are no extraordinary circumstances shown by the

petitioners, nor such circumstances, in fact, exit, which justify the deviation from the well-developed federalstructure of crime investigation. He also contended that there are no allegations leveled against the SITconstituted by this Court with the consent of all the parties. It was submitted that when the said team is furtherinvestigating into the alleged offences, it provides credibility and instill confidence, which would also be theaspects, which this Court may consider while exercising extraordinary jurisdiction. Therefore, it wassubmitted that the prayer for transferring the investigation to CBI or for incorporation of any officer(s) of CBIor any other Central Agency in SIT is not acceptable to the State Government. He also contended that ifinvestigation is assigned to CBI or any officer of CBI or Central Agency inducted into SIT, it will demoralizethe Police Officers of the State Government or, at least, other members of the SIT, therefore, it was submittedthat this Court may continue with the investigation through the SIT, which is already constituted and in anycase, may not be assigned to CBI as prayed by the relatives of the deceased - concerned petitioners.

On

the aspects of assignment of the investigation to CBI in a case where one of the alleged accused was sittingMember of Legislative Assembly (MLA), this Court (Coram: Jayant Patel, J. - one of us) had an occasion toconsider the said aspect in the case of Bharatbhai Umedsang & Anr. v. State of Gujarat, in Special CriminalApplication No.1855 of 2008 and allied matters, decided on 13.4.2010. This Court, at paragraphs 41 and 42,observed as under :-

"41. In

the case of State of West Bengal and Ors Vs. Committee for Protection of Democratic Rights, West Bengal &Ors reported at 2010 STPL (Web) 129 SC, while considering the question about the power of theconstitutional Court under Article 32 or 226 for entrustment of the investigation to CBI, the ConstitutionalBench of the Apex Court recorded conclusions, the relevant of which for the present group of matter is at para45(ii) as under:

"(ii)

Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personalliberties except according to the procedure established by law. The said Article in its broad application notonly takes within its fold enforcement of the rights of an accused but also the rights of the victim. The Statehas a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any




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person accused of commission of a cognizable offence,which may include its own officers. In certainsituations even a witness to the crime may seek for and shall be granted protection by the State."(Emphasissupplied)

While

recording the final analysis at para 46, the Apex Court did observe that the Apex Court and the High Court

have not only the power and jurisdiction, but also an obligation to protect the fundamental rights, guaranteedby Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly. But at thesame time, the further observations by way of caution, have been made at para 47, relevant of which reads asunder:

"Before

parting with the case, we deem it necessary to emphasize that despite wide powers conferred by Articles 32and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposedlimitations on the exercise of these Constitutional powers. The very plenitude of the power under the saidArticles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to

conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decidewhether or not such power should be exercised but time and again it has been reiterated that such an order isnot to be passed as a matter of routine or merely because a party has levelled some allegations against thelocal police. This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situationswhere it becomes necessary to provide credibility and instill confidence in investigations or where the incidentmay have national and international ramifications or where such an order may be necessary for doingcomplete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a largenumber of cases and with limited resources, may find it difficult to properly investigate even serious cases andin the process lose its credibility and purpose with unsatisfactory investigations." (Emphasis supplied)

42. Under

these circumstances, it can be said that it is by now well settled that this Court under Article 226 of theConstitution has power to protect the rights of the citizen and to enforce the duty upon the investigatingagency to ensure that there is fair and impartial investigation against any person accused of commission ofcognizable offence which may also include its own officer. While exercising the power, the facts of each caseis to be considered for ensuring that there is fair and impartial investigation. Further, such power are to beexercised not in routine but by way of exceptional circumstance and the reason being that in normalcircumstance, as referred to hereinabove, by extracting the decision of the Apex Court in the case ofGangadhar Janardhan Mhatre(supra), the matter is to be left to investigating agency and to the concernedMagistrate for overseeing the investigation or getting or taking cognizance of the offence or otherwise. It isonly in exceptional circumstance, this Court may be required to step into the investigation to streamline theinvestigation for ensuring the fairness and impartiality in the investigation so as to instill confidence into theinvestigation and to enforce law and it is only in very very extraordinary case, where there is sufficientmaterial before the Court to record the substance in the apprehension of the complainant or the victim thateven highest officer of the State, if assigned with the investigation, has

Documents

Gujarat High Court Ishrat Case Assigned to SIT