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CR.MA/15981/2010 14/ 14 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 15981 of 2010
In
CRIMINAL
MISC.APPLICATION No. 9832 of 2010
In
SPECIAL
CRIMINAL APPLICATION No. 1850 of 2009
=========================================================
SIT
- THRO' KARNAL SINGH - IPS - Applicant(s)
Versus
SAMIMA
KAUSAR WD/O MOHMMED SHAMIM RAZA & 4 - Respondent(s)
=========================================================
Appearance
:
MR
YOGESH S LAKHANI for
Applicant(s) : 1,
MR MUKUL
SINGHA for Respondent No.1-2
None for Respondent(s) : 1 - 2, 5,
MR
KAMAL TRIVEDI, LD ADVOCATE GENERAL WITH MR P.K. JANI, LD. GOVT.
PLEADER ASSISTED BY MS SANGEETA VISHEN AGP for Respondent(s) : 3,
MR
PS CHAMPANERI, LD ASSTT SOLICITOR GENERAL for Respondent(s) :
4,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 12/05/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
This
Court, on 21.4.2011, had passed the following order:-
“1.As
per the order dated 08.04.2011 passed by this Court, all the
reports have been submitted. We have gone through the reports and
have considered the contents thereof. Since the investigation is at
a crucial stage, we find that the contents of the reports are not
required to be recorded since to do so would prejudice the
investigation.
2.However, three pertinent aspects are
required to be recorded qua each member of SIT. One is that Mr.
Karnail Singh, Chairman of the SIT, who has been posted at Mizoram,
has shown his inability to continue with the present assignment. We
have gone through his report and we find that the difficulty being
faced by him appears to be genuine. Of course, he has also stated
other aspects in the report which, if required, shall be considered
at a later stage. Under these circumstances, we allow Mr.Karnail
Singh to be relieved as Chairman of SIT. Since we may be required to
induct another member as SIT who may be the Chairman, or otherwise,
as per his seniority in the IPS cadre, we keep that aspect open. It
is directed that the Union of India, through Mr.P.S. Champaneri, on
the next date, shall communicate names of other officers who may be
spared for inclusion in the present SIT.
3.The second aspect is that on account
of the non- availability of the Chairman, SIT shall now comprise of
two members, namely, Mr.Mohan Jha and Mr. Satish Verma.
4.We have seen the individual report
of both the members and we find that there are various differences
of opinion in the mode and manner of investigation. Further, we
have seen from the report that if there is no separate demarcation
of duties, it may hamper the smooth investigation. Therefore, we
find it proper to demarcate the duties of both the members of SIT.
However, it is clarified that the demarcation of duties by this
Court may not be taken to mean that there is a perception that any
officer is either working properly or not working properly.
However, demarcation of duties is essential with a view to
streamline the investigation without any impediment therein.
5.We have heard both the members of
the SIT. Considering the facts and circumstances and having gone
through the reports submitted by the members of SIT including
Chairman, Mr. Karnail Singh, we find that the investigation through
SIT shall be looked after in the following manner:
Mr.Mohan
Jha shall look after the administrative work being member of SIT.
Mr.Satish
Verma shall look after the actual and further investigation of the
case which is already stated vide order dated 08.04.2011 at
paragraph no.7, i.e., pertaining to complaint being C.R.No.8/04
dated 05.06.2004 registered with DCB Police Station, Ahmedabad.
6.Hence, SIT shall work accordingly.
7.It was submitted by Mr.Lakhani,
amicus curiae on behalf of SIT that since no officer of the rank of
SP/DIG level is available, it would help the member of SIT to
further investigate the matter if such an officer is spared by the
State Police Department. We leave it to the discretion and
decision of the member of SIT who has been assigned with the work of
investigation. If he finds it proper, he may requisition the
officer of his choice who is not connected with the incident
directly or indirectly. Upon the requisition being made by him, the
State Government shall spare that officer for assisting the member
of SIT for investigation.
8.It has been further stated that the
report of the Central Forensic Laboratory as well as AIIMS may take
some time, approximately four weeks. An attempt shall be made by
requisitioning both the authorities to submit the reports earlier,
preferably within a period of two weeks, if possible. The order of
this Court shall be communicated to the Central Forensic Laboratory
as well as AIIMS.
9.Another aspect which we need to
record is that when we passed the order dated 08.04.2011, it was
already mentioned that SIT had requisitioned transfer of certain
officers including Mr.P.P. Pandey, Mr.G.L. Singhal and Mr.Tarun
Barot pursuant to our order dated 28.01.2011. In spite of the
requisition made by SIT, the said officers were not transferred by
the State Government. There are certain materials which, prima
facie, suggest that this has affected the investigation. Not only
that, after the order dated 08.04.2011 was passed by this Court, the
State Government was required to take immediate action. In spite of
the same, the said officers have been transferred on 19.04.2011,
just one day prior to the date on which the reports were to be
submitted. The pertinent aspect is that at para 3 of the order
dated 08.04.2011, it is clearly stated that the directions were to
be complied with within one week. However, it prima facie appears
that until the visit of the members of the Central Forensic
Laboratory and team of AIIMS, the transfer orders were not passed.
Prima facie, the said action on the part of the State, in spite of
the specific direction by this Court, can be said to be in breach
and non-compliance of the direction of this Court. However, upon
the inquiry further made by the Court, it has been reported by the
learned Advocate General that Mr.Balwant Singh, Additional Chief
Secretary, Home Department, is the authority who had to comply with
the direction. Hence, before we prima facie conclude on the aspect
as to whether it is a case for initiation of action under the
Contempt of Courts Act for breach and non-compliance to the order of
this Court, an opportunity may be given to the said officer to
submit his reply and explanation, if any, and thereafter,
appropriate action may be initiated, if required. Hence, we direct
Mr.Balwant Singh, Additional Chief Secretary, Home Department to
submit a reply and explanation, if any, as to why proceedings under
the Contempt of Courts Act should not be initiated for committing
alleged breach and non-compliance of the directions issued by this
Court for transferring certain police officers as requisitioned by
SIT, pursuant to the order passed by this Court. Such explanation
shall be submitted on, or before, 11.05.2011.
10.It has been submitted on behalf of
the SIT that NIA has been requested to supply certain details which,
in spite of reminders, have not been supplied to the SIT.
11.Hence, we direct that NIA shall
supply the requisite details as desired by SIT within two weeks.
Mr.Champaneri, learned Assistant Solicitor General has agreed to
communicate the order to the NIA. Mr.Champaneri has submitted that
whatever information is available will be supplied if there is no
legal impediment, and if there is any legal impediment, the same
shall be reported to this Court, on the next date.
12.Mr.Saiyed appearing on behalf of
Shamima Kausar wanted to tender an affidavit claiming to contain
certain factual narrations of events that transpired at the office
of SIT, when the complaint was tendered by Shamima Kausar.
13.We find that the said aspect need
not be looked into at this stage. If she is so desirous, the same
may be submitted to the SIT who shall look into the matter, in
accordance with law.
14.S.O. to 12.05.2011 at 2.30
p.m. Mr.Champaneri shall submit the names of the suggested
officers on that day.
15.Before parting with this order, we
may observe that the work which has been undertaken by Mr.Karnail
Singh as Chairman of SIT, as transpires from his individual report,
is found to be satisfactory by us and we record a sense of
appreciation.
16.The
reports submitted by the members of SIT shall be kept in a sealed
cover, in the safe custody of the Registrar General.”
Pursuant
to the earlier order, Mr.P.S. Champaneri, learned Assistant
Solicitor General on behalf of the Central Government has tendered
the names of three officers; (1) Dr. Satyapal Singh, IPS (MH:80),
(2) Shri J.V. Ramudu, IPS (AP:81), and (3) Shri Rajesh Ranjan, IPS
(BH:84) and he declared before the Court that as per the
instructions received by him from the Ministry of Home Affairs,
Government of India, any officer so nominated by this Court will
devote full time for ensuring that the investigation is completed at
the earliest.
We
have heard Mr.Kamal Trivedi, learned Advocate General with Mr.P.K.
Jani, learned Government Pleader for the State as well as Mr.Mukul
Sinha, learned Counsel for the original petitioner.
Mr.Sinha
has left the matter to the Court, whereas on behalf of the State of
Gujarat, some reservation was shown for officer at Sr. No.3, Shri
Rajesh Ranjan. As the choice and options are available, we find
that we need not go into the aspects of reservation expressed on
behalf of the State. Dr. Satyapal Singh, even amongst the officers
nominated is the Senior Most Officer and he is, in any case, senior
to the remaining both the members of SIT. Hence, we find that Dr.
Satyapal Singh, IPS (MH:80) can be nominated as the Chairman of SIT.
Consequently, SIT now shall comprising of the members as under:-
(a) Dr.
Satyapal Singh, IPS (MH:80) shall be the Chairman of SIT
(b) Mr.Mohan
Jha, IPS – Member of SIT
(c) Mr.Satish
Verma, IPS – Member of SIT
In
view of the full-fledged constitution of SIT, the functioning of SIT
shall now be as per the order dated 28.1.2011, vide paragraph 5 and
the detailed direction given therein, save and except that in place
of Mr.Karnal Singh, IPS as the Chairman, Dr. Satyapal Singh, IPS
shall be the Chairman. Hence, ordered accordingly. It is observed
that in view of the aforesaid direction now bifurcation of the work
as specified vide order dated 21.4.2011 as per para 5 and 6 would no
more survive. The State shall issue necessary Notification for such
purpose within one week. SIT shall further investigate into the
matter and submit the report on or before 23.6.011 in a sealed
cover. The report shall be submitted to the Registrar (Judicial),
High Court of Gujarat.
As
per the above referred order dated 21.4.2011, it appears that the
affidavit has been filed by Mr.Balwant Singh, IAS, Additional Chief
Secretary, Home Department. We may observe that the affidavit is
not with the details about the role played at every level by the
concerned officer from the date on which the requisition was
received from SIT until the sanction for transfer order was granted
by the State Government. We may record that unless and until
date-wise details with the role played by the officer concerned for
pursuing the matter or not pursuing the matter with the name of the
officer concerned is given, it may be difficult for the Court to
hold the responsibility, if such question arises in future under the
Contempt of Courts Act. Further in absence thereof it cannot be
termed as sufficient explanation. We would have directed the said
Officer to file the affidavit, however, on his behalf Mr.Trivedi,
learned Advocate General has stated that such affidavit shall be
filed on or before 23.6.2011. Hence, we direct that the said
affidavit with the aforesaid shall accordingly be filed before this
Court on or before 23.6.2011.
It
was next contended by the learned Advocate General on behalf of the
State by tendering the affidavit of Shri Rahul Gupta, IAS working as
the Deputy Secretary, Home Department, stating that the State has
formed the monitoring authority to be looked after for the
functioning of the Special Task Force in all encounter matters and
it was submitted that as now SIT could not function effectively, the
investigation be handed over to Special Task Force working under the
monitoring authority by this Court for the alleged incident of
encounter in question.
We
are unable to appreciate such a stand on the part of the State, more
particularly when the said aspect was already considered by us in
the order dated 24.9.2010 in Criminal Misc. Application No.9832 of
2010, which has been disposed of and the SIT was constituted vide
the said order. We may record that similar arguments and
contentions were raised when we considered the aspects of
reconstitution of SIT vide order dated 24.9.2010 in Criminal Misc.
Application No.9832 of 2010. It was observed by the Court at para
17 to 20, which reads as under:-
“17. After
the aforesaid exercise was completed but before this Court proceeded
to pass the order for constitution of new SIT by including the names
of the officers which this Court may find proper, the learned
Advocate General pressed into service, the affidavit dated 20th
September, 2010, filed by Mr.Rahul Gupta, Deputy Secretary of the
Home Department, contending that the State Government has issued a
Notification dated 16.09.2010 for constitution of Monitoring
Authority and Special Task Force for investigation of the police
encounter deaths and it was also submitted that the Chairman of the
Monitoring Authority may be a retired Honourable Judge of the
Supreme Court of India or a retired Honourable Judge of the High
Court of Gujarat.
18. It
may also be recorded that in Paragraph-8 of the affidavit, it has
been stated on behalf of the State Government as under:
“8. I
respectfully say and submit that under the circumstances, while
respectfully reserving my liberty to press for the reliefs prayed
for in the Special Criminal Application filed by the State of
Gujarat and reiterating the prayer that in view of the changed
circumstances, that is to say, SIT of riot cases having expressed
its inability, this Honourable Court may be pleased to permit the
Special Investigation Team, constituted by this Honourable Court
earlier, to complete the investigation under the monitoring
authority, as contemplated vide notification dated 16/9/2010 or the
investigation in question may be ordered to be completed by the
Special Task Force contemplated vide same notification dated
16/9/2010 under the monitoring of the said Monitoring Authority. In
the respectful submission of the State, the said course of action
would not only instill confidence and credibility in the
investigation, but would result into a complete justice to all the
parties rather than constituting an agency having officers of
different police forces since such a course of action has an inbuilt
risk of inevitable confusion in the investigation for various
reasons.”
19. When
the learned Advocate General Mr.Trivedi was called upon to clarify
the stand of the State Government on the aspects of constitution of
new SIT by this Court, it was declared by the learned Advocate
General that the attempt on the part of the State Government is by
way of a suggestion that the investigation may be assigned to the
Special Task Force who is to work under the Monitoring Authority
instead of new SIT comprising of the other officers who, in the
submission of the learned Advocate General, could be officers from
outside Gujarat State. It was submitted that there is no attempt on
the part of the State to nullify the effect of the judgment of this
Court but the Notification for constitution of Special Task Force
may be considered as one of the options available to the Court
instead of constituting a new SIT. He also submitted that prior to
the Notification dated 16th September, 2010, for
constitution of Special Task Force and Monitoring Authority, the
Government has already given the names of the officers reserving its
rights and contentions in the SLP pending before the Apex Court.
Therefore, it was submitted that the said aspects may be considered
before passing further order.
20. It
is hardly required to be stated that a judgment or order of the High
Court in exercise of the power under Article 226 of the Constitution
cannot be nullified by any executive action of the Government, be it
a policy matter or constitution of a Special Task Force or the
constitution of the Monitoring Authority, or otherwise. Therefore,
once this Court having recorded the findings for constitution of a
SIT having a particular character and composition, such decision on
the part of the State can hardly be considered as a valid ground to
recall the observations made for constitution of SIT, thereby
instilling confidence and credibility to the investigation. Under
these circumstances, based on the Notification, such suggestion
cannot be accepted. Further, when this Court has already ruled for
inclusion of certain officers in the SIT, unwillingness on the part
of the State for induction of any officer of IPS cadre from outside
the State can neither be countenanced nor endorsed. We may record
that the Constitution provides the competence of any State or the
Union or any constitutional authority, including the judiciary, for
protection of the rights of citizens and controls the exercise of
power by any executive. In a Federal structure which prevails in our
nation, once this Court has exercised the power under Article 226 of
the Constitution, and has ruled for assigning the investigation to a
broad-based SIT, such reservations expressed on behalf of the State
cannot be countenanced by this Court. The aforesaid is coupled with
the circumstance that State has not filed any review application for
recalling of the order. Further, even if the State, for the reasons
best known to it, is desirous of constituting the Special Task Force
or a Monitoring Authority, it may be made applicable to other cases,
namely, encounter cases other than the one considered and examined
by this Court in exercise of the power under Article 226 of the
Constitution. Further, if such aspect is considered, it may also
indirectly dilute the observations made by this Court in the
judgment and also by the Apex Court, permitting the High Court to
constitute a new SIT. Hence, we find that such ground should not
operate as a bar or by way of a second thought for non-constitution
of the SIT and the assignment of investigation to it.”
The
pertinent aspect is that when this Court expressly ruled that by
executive action the judgement or the order of the High Court in
exercise of the power under Article 226 of the Constitution of India
cannot be nullified, be it policy matter or be it constitution of
Special Task Force or constitution of monitoring authority or
otherwise and when it was further observed that even if the State
for the reasons best known to it, is desirous to constitute Special
Task Force or monitoring authority, it may be made applicable to
other cases namely; the encounter cases other than the one
considered and examined by this Court in exercise of the power under
Article 226 of the Constitution of India, there was absolutely no
necessity on the part of the State or its Officer to file such an
affidavit. The another aspect is that the aforesaid order dated
24.9.2010, whereby the aforesaid contentions were negatived and SIT
was constituted, was carried before the Apex Court and no
interference has been made. Under these circumstances, the approach
on the part of the State to re-agitate the
question of transferring the investigation to the Special Task Force
can hardly be canvassed and we deprecate the same. In all fairness,
it was expected for the State to wait till induction of the Chairman
of SIT, who may be officer from the Central Government and the
submission could have been made thereafter,
but it appears that the stand of the State as was earlier, which has
been negated, is to see that the investigation may be assigned to
the Special Task Force. We leave the matter at that stage, without
observing further but the fact remains that as per the above
referred direction issued by us, full-fledged SIT has been
constituted and, therefore, in any case, there is no reason to take
a different view as sought to be canvassed.
We
may only record that the SIT, which is constituted shall be given
all assistance by the State Officers and any impediment in the
function of the SIT in any manner, shall be reported to this Court.
We
may also record that Shri Girish Laxman Singhal and others have
preferred SLP (Cr.) No.9489 of 2011 before the Apex Court, but vide
order dated 11.5.2011, the Apex Court has clarified that its earlier
order dated 3.5.2011 shall not preclude the High Court from hearing
the matter and to pass appropriate orders. However, it is clarified
that the present order, in any case, shall be subject to the order
that may be passed by the Apex
Court in the aforesaid SLP.
S.O.
To 24.6.2011.
(Jayant Patel, J.)
(Smt. Abhilasha Kumari, J.)
vinod
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