I. In respect of an incident of rape, an FIR was lodged. The Dy.S.P. recorded the statement of the prosecutrix, wherein she narrated the facts alleging rape against the appellant. II. The prosecutrix, appeared before the Chief Judicial Magistrate, Sirohi, on 9.4.1997 and lodged a complaint, stating that the police was not investigating the case properly. She filed an application that her statement be recorded under Section 164 Cr.P.C. III. The prosecutrix had signed the said application. It was also signed by her lawyer. However, she was not identified by any one. IV. There is nothing on record to show with whom she had appeared before the Court. V. From the signatures on the FIR and Medical Report, it appears that she is not an educated person and can hardly form her own signatures. VI. Thus, it leads to suspicion regarding how an 18 year old, who is an illiterate rustic villager, reached the court and how she knew that her statement could be recorded by the Magistrate. VII. More so, she appeared before the Chief Judicial Magistrate, Sirohi, and not before the area Magistrate at Sheoganj. VIII. The Chief Judicial Magistrate on the same day disposed of the application, directing the Judicial Magistrate, Sheoganj, to record her statement. IX. The prosecutrix appeared before the Judicial Magistrate, Sheoganj, at a far distance from Sirohi, where she originally went, on 9.4.1997 itself, and her statement under Section 164 Cr.P.C. was recorded on 10.4.1997 as on 9.4.1997, since the public prosecutor could not produce the Case Diary. X. Signature of the prosecutrix on the papers before the Chief Judicial Magistrate, Sirohi and Judicial Magistrate, Sheoganj, do not tally with the signatures on the FIR and Medical Report. There is apparent dissimilarity between the same, which creates suspicion. XI. After completing the investigation, charge-sheet was filed before the Judicial Magistrate, Sheoganj, on 20.3.1998. XII. The Judicial Magistrate, Sheoganj, vide order dated 25.3.1998, refused to take cognizance of the offences on the basis of the statement of the prosecutrix, recorded under Section 164 Cr.P.C. The said court erred in not taking cognizance on this count as the said statement could not be relied upon. XIII. The revisional court as well as the High Court have rightly held that the statement under Section 164 Cr.P.C. had not been recorded correctly. The said courts have rightly set aside the order of the Judicial Magistrate, Sheoganj, dated 25.3.1998, not taking the cognizance of the offence. XIV. There is no provision analogous to Section 207-A of the old Cr.P.C. The Judicial Magistrate, Sheoganj, should have committed the case to the Sessions court as the said application could be entertained only by the Sessions Court. More so, it was not permissible for the court to examine the weight of defence evidence at that stage. Thus, the order is insignificant and inconsequential being without jurisdiction. 25. In view of the above, we do not find any force in the appeal. It is, accordingly, dismissed. The judgment and order of the revisional court, as well as of the High Court is upheld. The original record reveals that in pursuance of the High Court’s order, the case has been committed by the Judicial Magistrate, Sheoganj, to the Court of Sessions on 23.4.2012. The Sessions Court is requested to proceed strictly in accordance with law, expeditiously and take the case to its logical conclusion without any further delay. We make it clear that none of the observations made herein will adversely affect either of the parties, as the same have been made only to decide the present case.

REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                      CRIMINAL APPEAL NO. 1496 of 2012




      Ajay Kumar Parmar                                       …Appellant


                                   Versus


      State of Rajasthan
           …Respondent




                               J U D G M E N T




      Dr. B.S.CHAUHAN, J.




      1.    This appeal has been preferred against the impugned judgment and
      order dated 9.1.2012 passed  by  the  High  Court  of  Judicature  for
      Rajasthan at Jodhpur in S.B. Criminal Revision  Petition  No.  458  of
      1998, by way of which, the High Court  has  upheld  the  judgment  and
      order dated 25.7.1998,  passed  by  the  Sessions  Judge  in  Revision
      Petition No. 5 of 1998. By way of the said revisional order, the court
      had reversed the order of discharge of the appellant for the  offences
      under Sections 376 and 342 of the Indian Penal Code, 1860 (hereinafter
      referred to as the ‘IPC’) dated  25.3.1998,  passed  by  the  Judicial
      Magistrate, Sheoganj.
      2.    The facts and circumstances giving rise to this  appeal  are  as
      follows:
      A.    An FIR was lodged  by  one  Pushpa  on  22.3.1997,  against  the
      appellant stating that the appellant had raped her  on  10.3.1997.  In
      view thereof, an investigation ensued and the appellant was  medically
      examined. The prosecutrix’s clothes were then also recovered and  were
      sent for the preparation of FSL report.  The prosecutrix was medically
      examined on 22.3.1997, wherein it was opined by the  doctor  that  she
      was habitual to sexual intercourse, however, a final opinion regarding
      fresh intercourse would be given only after receipt of report from the
      Chemical Examiner.


      B.    The statement of the prosecutrix was recorded under Section  161
      of Code of Criminal Procedure, 1973, (hereinafter referred to as  `the
      Cr.P.C.’), by the  Dy.S.P.,  wherein  she  narrated  the  incident  as
      mentioned in the FIR, stating that she had been employed as a  servant
      at the residence of one sister Durgi for the past six years. Close  to
      the residence of sister Durgi, Dr. D.R. Parmar and his son Ajay Parmar
      were also residing. On the day  of  the  said  incident,  Ajay  Parmar
      called  Pushpa, the prosecutrix home on the pretext that there  was  a
      telephone call for her. When she reached the residence of Ajay Parmar,
      she was raped by him and was restrained from  going  out  for  a  long
      period of time and kept indoors  without  provision  of  any  food  or
      water. However, the next evening, she was pushed  out  surreptitiously
      from the back exit of the said house. She then tried to commit suicide
      but was saved by Prakash Sen and  Vikram  Sen  and  then,  eventually,
      after a lapse of about 10 days, the complaint in question  was  handed
      over to the SP, Sirohi.  Subsequently, she herself appeared before the
      Chief  Judicial  Magistrate,  Sirohi  on  9.4.1997,   and   moved   an
      application before him stating that, although she had  lodged  an  FIR
      under Section 376/342 IPC, the police was not investigating  the  case
      in a correct manner and, therefore,  she wished to make her  statement
      under Section 164 Cr.P.C.


      C.    The Chief Judicial Magistrate,  Sirohi,   entertained  the  said
      application  and disposed it of on the  same  day,  i.e.  9.4.1997  by
      directing the Judicial Magistrate, Sheoganj, to record  her  statement
      under Section 164 Cr.P.C.


      D.    In  pursuance  thereof,  the  prosecutrix  appeared  before  the
      Judicial Magistrate, Sheoganj, which is at a far distance from Sirohi,
      on 9.4.1997 itself and handed over all the  requisite  papers  to  the
      Magistrate.  After examining the order passed by  the  Chief  Judicial
      Magiastrate, Sirohi, the Judicial Magistrate, Sheoganj,  directed  the
      public prosecutor to produce the Case Diary of the case at  4.00  P.M.
      on the same day.


      E.    As the public prosecutor could not produce  the  Case  Diary  at
      4.00 P.M, the  Judicial  Magistrate,  Sheoganj,  directed  the  Public
      prosecutor to produce the Case Diary on 10.4.1997 at  10.00  A.M.  The
      Case Diary was then produced before the said court on 10.4.1997 by the
       Public prosecutor.  The Statement of the  prosecutrix  under  Section
      164 Cr.P.C., was recorded after being identified by the lawyer, to the
      effect that the said FIR lodged by  her  was  false;  in  addition  to
      which, the statement made by her under Section 161 Cr.P.C., before the
      Deputy Superintendent of  Police was also false; and finally  that  no
      offence whatsoever was ever committed by the appellant, so far as  the
      prosecutrix was concerned.


      F.    After the conclusion of  the  investigation,  charge  sheet  was
      filed against the appellant.  On 25.3.1998, the  Judicial  Magistrate,
      Sheoganj,  taking note of the statement given by the prosecrutix under
      Section 164 Cr.P.C., passed an order of not taking cognizance  of  the
      offences under Sections 376 and  342 IPC and not  only  acquitted  the
      appellant but  also  passed  strictures  against  the    investigating
      agency.


      G.    Aggrieved, the public prosecutor filed  a  revision  before  the
      Learned Sessions Judge, Sirohi, wherein,  the  aforesaid  order  dated
      25.3.1998 was reversed  by  order  dated  25.7.1998  on  two  grounds,
      firstly,  that a case under Sections 376 and 342 IPC  was  triable  by
      the Sessions Court and the Magistrate, therefore, had no  jurisdiction
      to discharge/acquit the appellant on any ground whatsoever, as he  was
      bound to commit the case to the Sessions Court,  which was  the   only
      competent court  to  deal  with  the  issue.   Secondly,  the  alleged
      statement of the prosecutrix under Section 164 Cr.P.C. was  not  worth
      reliance as she had not been produced before  the  Magistrate  by  the
      police.


      H.    Being aggrieved by the aforesaid order  of  the  Sessions  Court
      dated 25.7.1998, the appellant moved the High Court and the High Court
      vide its impugned judgment  and  order,  affirmed  the  order  of  the
      Sessions Court on both counts.
            Hence, this appeal.


      3.    Ms. Aishwarya Bhati, learned counsel appearing on behalf of  the
      appellant, has  submitted  that  in  view  of  the  statement  of  the
      prosecutrix as  recorded  under  Section  164  Cr.P.C.,  the  Judicial
      Magistrate, Sheoganj, has rightly refused to take  cognizance  of  the
      offence and has  acquitted the appellant stating that no fault can  be
      found with  the said order, and therefore it is stated that both,  the
      Revisional Court, as well as the High Court committed a serious  error
      in reversing the same.


      4.    On the contrary, Shri Ajay  Veer  Singh  Jain,  learned  counsel
      appearing for the State, has opposed the appeal, contending  that  the
      Magistrate ought not to have refused to take cognizance  of  the  said
      offences and has committed a grave error in acquitting the  appellant,
      after taking note of  the  statement  of  the  prosecutrix  which  was
      recorded under Section 164 Cr.P.C.  The said statement was recorded in
      great haste. It is further submitted  that,  as  the  prosecutrix  had
      appeared before the Magistrate independently, without  any  assistance
      of the police, her statement recorded under Section 164 Cr.P.C. is not
      worth acceptance. Thus, no interference is called for. The  appeal  is
      liable to be dismissed.


      5.    We have considered the rival submissions  made  by  the  learned
      counsel for the parties and perused the records.
            A three Judge bench of this  Court in Jogendra Nahak &  Ors.  v.
      State of Orissa & Ors., AIR 1999 SC 2565, held that Sub-Section  5  of
      Section 165, deals with the statement of  a  person,  other  than  the
      statement of an accused i.e. a confession.  Such a  statement  can  be
      recorded, only and only when, the  person  making  such  statement  is
      produced before the Magistrate by the police. This Court held that, in
      case such a course of action, wherein such person is allowed to appear
      before the Magistrate of his own volition, is made  permissible,   and
      the doors of court are opened to them to come as they please,  and  if
      the Magistrate starts recording all their statements, then   too  many
      persons sponsored by culprits might throng before the portals  of  the
      Magistrate courts, for the purpose of creating record  in  advance  to
      aid the said  culprits.   Such statements would be very helpful to the
      accused to get  bail and discharge orders.


      6.    The said judgment was distinguished by  this  Court  in  Mahabir
      Singh v. State of Haryana, AIR 2001 SC 2503, on facts, but the   Court
      expressed its anguish at the fact that the statement of  a  person  in
      the  said  case  was  recorded  under  Section  164  Cr.P.C.  by   the
      Magistrate, without knowing him personally or without any  attempt  of
      identification of the said person, by any other person.


      7.    In view of the above, it is evident that this case  is  squarely
      covered by the aforesaid judgment of the three Judge bench in Jogendra
      Nahak & Ors. (Supra), which held that  a  person  should  be  produced
      before a Magistrate, by the police for recording his  statement  under
      Section  164  Cr.P.C.  The  Chief  Judicial  Magistrate,  Sirohi,  who
      entertained  the  application  and  further  directed   the   Judicial
      Magistrate, Sheoganj, to record the statement of the prosecutrix,  was
      not known to the prosecutrix in the case and the latter also  recorded
      her statement, without any attempt at  identification,  by  any  court
      officer/lawyer/police or anybody else.


      8.    In Sanjay Gandhi v. Union of India, AIR 1978 SC 514, this  court
      while  dealing with the competence of the Magistrate to  discharge  an
      accused, in a case like the instant one at hand, held :
                 “….it is not open to the committal Court  to  launch  on  a
                 process of satisfying itself that a prima  facie  case  has
                 been made out on the merits. The jurisdiction  once  vested
                 in him under the earlier Code but has been  eliminated  now
                 under the present Code. Therefore, to hold that he  can  go
                 into the merits even for a prima facie satisfaction  is  to
                 frustrate the Parliament's purpose in  re-moulding  Section
                 207-A (old Code) into its present non-discretionary  shape.
                 Expedition was intended by this change  and  this  will  be
                 defeated successfully if interpretatively we  hold  that  a
                 dress rehearsal of a trial  before  the  Magistrate  is  in
                 order. In our view,  the  narrow  inspection  hole  through
                 which the committing Magistrate has to  look  at  the  case
                 limits  him  merely  to  ascertain  whether  the  case,  as
                 disclosed by the police report, appears to  the  Magistrate
                 to show an offence triable solely by the Court of  Session.
                 Assuming the facts to be correct as stated  in  the  police
                 report, …..the Magistrate has simply to  commit  for  trial
                 before the Court of Session. If, by error, a wrong  section
                 of the Penal Code is quoted, he may look into that  aspect.
                 If made-up facts unsupported by any material  are  reported
                 by the police and a sessions offence is made to appear,  it
                 is perfectly open to the Sessions Court under  Section  227
                 CrPC to discharge the accused. This provision takes care of
                 the alleged grievance of the accused.”

       (Emphasis added)


      9.    Thus, it is evident from the aforesaid  judgment  that  when  an
      offence is cognizable by the Sessions  court,  the  Magistrate  cannot
      probe into the matter and discharge the accused. It is not permissible
      for him to do so, even after considering the evidence on record, as he
      has no jurisdiction to probe or look  into  the  matter  at  all.  His
      concern should be to see what provisions of  the  Penal  statute  have
      been mentioned and in case an offence triable by  the  Sessions  Court
      has been mentioned, he must commit the case to the Sessions Court  and
      do nothing else.


      10.   Thus, we are of the considered opinion that the  Magistrate  had
      no business to discharge the appellant.   In fact,  Section  207-A  in
      the old Cr.P.C., empowered the Magistrate to exercise  such  a  power.
      However, in the Cr.P.C. 1973, there is no provision analogous  to  the
      said Section 207-A. He was bound under law, to commit the case to  the
      Sessions  Court,  where  such  application  for  discharge  would   be
      considered. The order of discharge  is  therefore,  a  nullity,  being
      without jurisdiction.


      11.   More  so,  it  was  permissible  for  the  Judicial  Magistrate,
      Sheoganj, to take into consideration the evidence in defence  produced
      by the appellant as it has consistently been held by this  Court  that
      at the time of framing  the  charge,  the  only  documents  which  are
      required  to  be  considered  are  the  documents  submitted  by   the
      investigating agency alongwith the charge-sheet.   Any document  which
      the accused want to rely upon cannot be read  as  evidence.   If  such
      evidence is to be considered, there would be a mini trial at the stage
      of framing of charge. That would defeat the object of  the  Code.  The
      provision about hearing the submissions of the accused  as  postulated
      by Section 227 means hearing  the  submissions of the accused  on  the
      record of the case as filed by the prosecution and documents submitted
      therewith and nothing more. Even if, in a rare case it is  permissible
      to consider  the  defence  evidence,  if  such  material  convincingly
      establishes that the whole  prosecution  version  is  totally  absurd,
      preposterous or concocted, the instant case  does  not  fall  in  that
      category. (Vide: State of Orissa v. Debendra Nath Padhi, AIR  2003  SC
      1512; State of Orissa v. Debendra Nath Padhi, AIR 2005 SC 359;  S.M.S.
      Pharmaceuticals Ltd. v. Neeta Bhalla & Anr., AIR 2005 SC 3512;  Bharat
      Parikh v. C.B.I. & Anr., (2008)  10 SCC 109; and Rukmini  Narvekar  v.
      Vijaya Satardekar & Ors., AIR 2009 SC 1013)


      12.   The court should not pass an order of acquittal by resorting  to
      a course of  not taking cognizance, where prima facie case is made out
      by the Investigating Agency.  More so, it is the duty of the court  to
      safeguard the  right  and  interests  of  the  victim,  who  does  not
      participate in discharge proceedings. At the stage of  application  of
      Section 227, the court has to shift the evidence in order to find  out
      whether or not there is sufficient ground for proceeding  against  the
      accused.  Thus,  appreciation  of  evidence  at  this  stage,  is  not
      permissible. (Vide:  P. Vijayan v. State of Kerala & Anr., AIR 2010 SC
      663; and R.S. Mishra v. State of Orissa & Ors., AIR 2011 SC 1103).


      13.   The scheme of the Code, particularly, the provisions of Sections
      207 to 209 Cr.P.C., mandate the Magistrate to commit the case  to  the
      Court of Sessions,   when  the  charge-sheet  is  filed.   A  conjoint
      reading of these provisions make it crystal clear that  the  committal
      of a case exclusively triable by the Court  of  Sessions,  in  a  case
      instituted by the police is mandatory.
            The scheme of the Code simply provides that the  Magistrate  can
      determine, whether the facts stated in the report make out an  offence
      triable exclusively, by the Court of Sessions.  Once  he  reaches  the
      conclusion that the facts alleged in the report, make out  an  offence
      triable exclusively by the Court of Sessions, he must commit the  case
      to the Sessions Court.


      14.   The Magistrate, in exercise  of  its  power  under  Section  190
      Cr.P.C., can refuse to take  cognizance  if  the  material  on  record
      warrants so.  The Magistrate must, in such a case, be  satisfied  that
      the complaint, case diary, statements of the witnesses recorded  under
      Sections 161 and 164 Cr.P.C., if any, do not make out any offence.  At
      this stage, the Magistrate performs a judicial function.  However,  he
      cannot appreciate the evidence on record and reach a conclusion as  to
      which evidence is acceptable, or can be relied upon.   Thus,  at  this
      stage appreciation of evidence is impermissible. The Magistrate is not
      competent to weigh the evidence and the balance of probability in  the
      case.


      15.   We find no force in  the  submission  advanced  by  the  learned
      counsel for the appellant that the Judicial Magistrate, Sheoganj,  has
      proceeded strictly in accordance with law laid down by this  Court  in
      various judgments wherein  it  has  categorically  been  held  that  a
      Magistrate has a power to drop  the  proceedings  even  in  the  cases
      exclusively triable by the Sessions Court  when  the  charge-sheet  is
      filed by the police.  She has placed  very  heavy  reliance  upon  the
      judgment of this Court in Minu Kumari & Anr. v. State of Bihar & Ors.,
      AIR 2006 SC 1937 wherein this Court placed reliance upon  its  earlier
      judgment in Bhagwant Singh v. Commissioner of Police & Anr., AIR  1985
      SC 1285 and held  that  where  the  Magistrate  decides  not  to  take
      cognizance and to drop the proceeding or takes a view that there is no
      sufficient ground for proceeding against some of the persons mentioned
      in the FIR, notice to informant  and  grant  of  being  heard  in  the
      matter, becomes mandatory.
            In the case at hand, admittedly, the Magistrate  has  not  given
      any notice to the complainant before  dropping  the  proceedings  and,
      thus, acted in violation of the mandatory requirement of law.


      16.   The application filed  before  the  Chief  Judicial  Magistrate,
      Sirohi, has been signed by the prosecutrix, as well as by her counsel.
        However, there has been no identification of the prosecutrix, either
      by the said advocate or by anyone else. The Chief Judicial Magistrate,
      Sirohi, proceeded to deal with the application without  identification
      of the prosecutrix and  has  no  where  mentioned  that  he  knew  the
      prosecutrix personally.  The Judicial  Magistrate, Sheoganj,  recorded
      the statement of the prosecutrix  after  she  was  identified  by  the
      lawyer. There is nothing on record  to  show  that  she  had  appeared
      before the Chief Judicial Magistrate, Sirohi or  before  the  Judicial
      Magistrate, Sheoganj,  alongwith  her  parents  or  any  other  person
      related to her. In such  circumstances,  the  statement  so  recorded,
      loses its significance and legal sanctity.
      17.    The  record  of  the  case  reveals  that  the  Chief  Judicial
      Magistrate, Sirohi, passed an  order  on  9.4.1994.   The  prosecutrix
      appeared before the Judicial Magistrate, Sheoganj, at a place far away
      from Sirohi, on the same date with  papers/order  etc.  and  the  said
      Judicial Magistrate directed the public prosecutor to produce the Case
      Diary on the same date at 4.00 P.M.   The  case  Diary  could  not  be
      produced on the said day.  Thus, direction was issued to  produce  the
      same in the morning of the next day.  The statement  was  recorded  on
      10.4.1997.  The fact-situation reveals that the court  proceeded  with
      utmost haste and any action taken so  hurridly,  can  be  labelled  as
      arbitrary.


      18.   The original record reveals that the prosecutrix had lodged  the
      FIR herself and the same bears  her  signature.    She  was  medically
      examined  the  next  day,  and  the  medical  report  also  bears  her
      signature.  We have compared the aforementioned  signatures  with  the
      signatures appearing upon  the  application  filed  before  the  Chief
      Judicial Magistrate, Sirohi, for recording her statement under Section
      164 Cr.P.C., as also with, the signature on the statement  alleged  to
      have been made by her under Section 164 Cr.P.C.,  and after  examining
      the same, prima facie we are of the view that they have not been  made
      by the same person,  as the two  sets  of  signatures  do  not  tally,
      rather there is an apparent dissimilarity between them.


      19.   Evidence of identity of handwriting has been dealt with by three
      Sections of the Indian Evidence Act, 1872 (hereinafter referred to  as
      the ‘Evidence Act’) i.e. Sections 45, 47 and 73.  Section  73  of  the
      said Act provides for a comparison made by the Court  with  a  writing
      sample given in its presence, or admitted, or proved to be the writing
      of the concerned person. (Vide: Ram Chandra & Anr. v. State  of  Uttar
      Pradesh, AIR 1957 SC 381; Ishwari Prasad Misra v.  Mohammad  Isa,  AIR
      1963 SC 1728; Shashi Kumar Banerjee & Ors. v. Subodh  Kumar  Banerjee,
      AIR 1964 SC 529;  Fakhruddin v. The State of Madhya Pradesh, AIR  1967
      SC 1326; and State of Maharashtra v. Sukhdeo Singh & Anr., AIR 1992 SC
      2100).


      20.         In Murari Lal v. State of Madhya Pradesh, AIR 1981 SC 363,
      this Court, while dealing with the said  issue,  held  that,  in  case
      there is  no  expert  opinion  to  assist  the  court  in  respect  of
      handwriting available,  the  court  should  seek  guidance  from  some
      authoritative text-book and the courts own experience  and  knowledge,
      however even in the absence of the same, it should discharge its  duty
      with or without expert, with or without any other evidence.


      21.   In A. Neelalohithadasan Nadar v. George Mascrene  &  Ors.,  1994
      Supp. (2) SCC 619, this Court considered a case involving an  election
      dispute regarding whether certain voters had voted more than once. The
      comparison of their signatures on the counter foil  of  the  electoral
      rolls with their admitted signatures was in  issue.  This  Court  held
      that in election matters when there is a need of expeditious  disposal
      of the case, the  Court  takes  upon  itself  the  task  of  comparing
      signatures, and thus  it  may  not  be  necessary  to  send  the  said
      signatures for comparison to a handwriting expert. While taking such a
      decision, reliance was placed by the Court, on its  earlier  judgments
      in State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14;  and  Ram
      Pyarelal Shrivastava v. State of Bihar, AIR 1980 SC 1523.


      22.   In O. Bharathan v. K. Sudhakaran & Anr., AIR 1996 SC 1140,  this
      Court considered a similar issue and held that the  facts  of  a  case
      will be relevant to decide where the Court will exercise its power for
      comparing the signatures and where it will  refer  the  matter  to  an
      expert. The observations of the Court are as follows:
                 “The learned Judge in our view  was  not  right......taking
                 upon himself the hazardous task of  adjudicating  upon  the
                 genuineness and authenticity of the signatures in  question
                 even without the assistance of a skilled and trained person
                 whose services could have been easily availed of. Annulling
                 the verdict of popular will is as much a serious matter  of
                 grave  concern  to  the  society  as  enforcement  of  laws
                 pertaining to criminal offences, if not more. Though it  is
                 the province of the expert to act as Judge or jury after  a
                 scientific  comparison  of  the  disputed  signatures  with
                 admitted signatures, the caution administered by the  Court
                 is to the course to be adopted in such situations could not
                 have been ignored unmindful of  the  serious  repercussions
                 arising out of the decision to the ultimately rendered.”


      (See also: Lalit Popli v. Canara Bank & Ors., AIR 2003 SC 1795; Jagjit
      Singh v. State of Haryana & Ors., (2006) 11 SCC 1; Thiruvengada Pillai
      v. Navaneethammal, AIR 2008 SC 1541; and G. Someshwar Rao v.  Samineni
      Nageshwar Rao & Anr., (2009) 14 SCC 677).


      23.   The opinion of a handwriting expert is fallible/liable to  error
      like that of any other witness, and yet, it cannot be brushed aside as
      useless. There is no legal bar to prevent  the  Court  from  comparing
      signatures or handwriting, by  using  its  own  eyes  to  compare  the
      disputed writing with the admitted writing and then from applying  its
      own observation to prove the said  handwritings  to  be  the  same  or
      different, as the case may be, but  in  doing  so,  the  Court  cannot
      itself become an expert in this regard and must refrain  from  playing
      the role of an expert, for the simple reason that the opinion  of  the
      Court may also not be conclusive. Therefore, when the Court takes such
      a task upon itself, and findings are recorded solely on the  basis  of
      comparison of signatures or handwritings, the Court must keep in  mind
      the risk involved, as the opinion formed  by  the  Court  may  not  be
      conclusive and is susceptible to error, especially when  the  exercise
      is conducted by one, not  conversant  with  the  subject.  The  Court,
      therefore, as a matter of prudence and caution should hesitate  or  be
      slow to base its findings solely  upon  the  comparison  made  by  it.
      However, where there is an opinion whether of an  expert,  or  of  any
      witness, the Court may then apply its own observation by comparing the
      signatures,  or  handwritings  for  providing  a  decisive  weight  or
      influence to its decision.


      24.   The aforesaid discussion leads to the following inferences:
        I. In respect of an incident  of  rape,  an  FIR  was  lodged.  The
           Dy.S.P. recorded the statement of the prosecutrix,  wherein  she
           narrated the facts alleging rape against the appellant.
       II. The prosecutrix, appeared before the Chief Judicial  Magistrate,
           Sirohi, on 9.4.1997 and lodged a  complaint,  stating  that  the
           police was not investigating the case  properly.  She  filed  an
           application that her statement be  recorded  under  Section  164
           Cr.P.C.
      III. The prosecutrix had signed the said application.   It  was  also
           signed by her lawyer.  However, she was not  identified  by  any
           one.
       IV. There is nothing on record to show with whom she  had   appeared
           before the Court.
        V. From the signatures on the FIR and Medical  Report,  it  appears
           that she is not an educated person and can hardly form  her  own
           signatures.
       VI. Thus, it leads to suspicion regarding how an 18 year old, who is
           an illiterate rustic villager, reached the  court  and  how  she
           knew that her statement could be recorded by the Magistrate.
      VII. More so, she appeared  before  the  Chief  Judicial  Magistrate,
           Sirohi, and not before the area Magistrate at Sheoganj.
     VIII. The Chief Judicial Magistrate on the same day  disposed  of  the
           application, directing the  Judicial  Magistrate,  Sheoganj,  to
           record her statement.
       IX.  The  prosecutrix   appeared  before  the  Judicial  Magistrate,
           Sheoganj, at a far distance from Sirohi,  where  she  originally
           went, on 9.4.1997 itself, and her statement  under  Section  164
           Cr.P.C. was recorded on 10.4.1997  as  on  9.4.1997,  since  the
           public prosecutor could not produce the Case Diary.
        X. Signature of the prosecutrix on  the  papers  before  the  Chief
           Judicial Magistrate, Sirohi  and Judicial Magistrate,  Sheoganj,
           do not tally with the signatures on the FIR and Medical  Report.
           There is apparent dissimilarity between the same, which  creates
           suspicion.
       XI. After  completing  the  investigation,  charge-sheet  was  filed
           before the Judicial Magistrate, Sheoganj, on 20.3.1998.
      XII. The Judicial Magistrate, Sheoganj, vide order  dated  25.3.1998,
           refused to take cognizance of the offences on the basis  of  the
           statement of the prosecutrix, recorded under Section 164 Cr.P.C.
             The said court erred in not taking cognizance on this count as
           the said statement could not be relied upon.
     XIII.  The revisional court as well as the  High  Court  have  rightly
           held that the statement under Section 164 Cr.P.C. had  not  been
           recorded correctly.  The said courts have rightly set aside  the
           order of the Judicial Magistrate, Sheoganj, dated 25.3.1998, not
           taking the cognizance of the offence.
      XIV. There is no provision analogous to  Section  207-A  of  the  old
           Cr.P.C. The Judicial Magistrate, Sheoganj, should have committed
           the case to the Sessions court as the said application could  be
           entertained only by the Sessions Court.  More  so,  it  was  not
           permissible for the court  to  examine  the  weight  of  defence
           evidence at that stage. Thus, the  order  is  insignificant  and
           inconsequential being without jurisdiction.


      25.   In view of the above, we do not find any force in the appeal. It
      is, accordingly, dismissed. The judgment and order of  the  revisional
      court, as well as of the High Court is  upheld.  The  original  record
      reveals that in pursuance of the High Court’s order, the case has been
      committed by the  Judicial  Magistrate,  Sheoganj,  to  the  Court  of
      Sessions on 23.4.2012.   The Sessions Court is requested  to   proceed
      strictly in accordance with law, expeditiously and take  the  case  to
      its logical conclusion without any further delay.  We  make  it  clear
      that none of the observations made herein will adversely affect either
      of the parties, as the same have been made only to decide the  present
      case.


                                       ……..………………………J.
                                        (Dr. B.S. CHAUHAN)



                                                    ……………….………………………………………J.
                             (FAKKIR     MOHAMED     IBRAHIM     KALIFULLA)




      New Delhi,
      September 27,  2012

42. On behalf of the CBI, it was stated that they need six weeks’ further time to complete the investigation. They are directed to positively complete the investigation within six weeks and submit the final charge- sheet before the transferee court in Mumbai. 43. The Sohrabuddin case stands transferred to Mumbai by this order. It is the case of the CBI that the case of Sohrabuddin and the case of Tulsiram Prajapati are closely connected and in order to avoid any miscarriage of justice, both the cases can only be tried before the same court. It will, therefore, be open to the CBI to make an application for transfer of the Tulsiram Prajapati case also to the same court where the Sohrabuddin case is transferred. In case, such an application is filed, the court will pass appropriate orders, in accordance with law, after hearing all concerned. 44. In the result, the appeal is dismissed but the transfer petition is allowed.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1503 OF 2012
               [ARISING OUT OF SLP (CRIMINAL) NO.9003 OF 2010]

Central Bureau of Investigation              … Appellant

                                   Versus

Amitbhai Anil Chandra Shah and Another       … Respondents


                                    WITH

                 TRANSFER PETITION (CRIMINAL) NO.44 OF 2011

Central Bureau of Investigation              … Petitioner

                                   Versus

Dahyaji Gobarji Vanzara & Others             … Respondents


                               J U D G M E N T


Aftab Alam, J.

1.    Leave granted.
2.    This order deals with an appeal and a transfer petition filed  by  the
Central Bureau of Investigation (the CBI).  The  appeal  (arising  from  SLP
(Criminal) No.9003 of 2010) is directed against the order dated October  29,
2010  passed  by  the  Gujarat  High   Court   in   Criminal   Miscellaneous
No.12240/2010 granting bail to Amitbhai Anil Chandra Shah  (respondent  no.1
in this appeal and accused No.16 in the transfer  petition)  in  case  No.RC
BS1/S/2010/0004 (Criminal Case No.5 of 2010) (“the Sohrabuddin  case”),  who
until his arrest in the case was the minister  of  State  for  Home  in  the
State of Gujarat. In the transfer petition, a prayer  is  made  to  transfer
the Sohrabuddin case outside the  State  of  Gujarat  for  trial.  Both  the
appeal and  the  transfer  petition  are  the  result  of  the  developments
following the orders passed by the Court in Writ  Petition  (Criminal)  No.6
of 2007 (Rubabbuddin  Sheikh  v.  State  of  Gujarat  &  Others)  seeking  a
direction for the investigation  of  the  case  concerning  the  killing  of
Sohrabuddin and the disappearance of his  wife,  Kausarbi  by  the  CBI.  In
order to put the two issues  in  context,  therefore,  it  is  necessary  to
slightly go back into the  facts  of  that  case  and  see  how  the  matter
unfolded before it came to the present stage.
3.    This Court by order dated January 12, 2010[1] passed in the  aforesaid
writ petition directed the CBI to  investigate  the  case  relating  to  the
killings of Sohrabuddin and his wife Kausarbi. The order came to  be  passed
after the proceedings in this Court in regard to those killings had gone  on
for over four years, initially on the  basis  of  two  letter-petitions  and
subsequently under the aforesaid writ petition. At the beginning, the  State
of Gujarat stoutly and vociferously  denied  that  the  encounter  in  which
Sohrabuddin was killed was stage-managed and it was only later that it  came
around to accept that it was actually so and  his  wife,  Kausarbi  too  was
killed while she was in illegal police custody and her body was disposed  of
in a manner as to make it untraceable. Some sort  of  an  investigation  was
made by the Gujarat Police and a charge-sheet  was  submitted  on  July  16,
2007 against thirteen (13) persons who were members of  the  Anti  Terrorist
Squad, Gujarat Police and the  Special  Task  Force,  Rajasthan  Police.  On
behalf of the writ-petitioner (Rubabbuddin Sheikh, the brother of the  slain
Sohrabuddin), however, it was submitted that the charge-sheet was  deceptive
and was designed more to cover up rather than uncover the entire  conspiracy
behind the murder of Sohrabuddin and his wife. It was pointed out  that  the
Gujarat Police had completely ignored the killing of Tulsiram  Prajapati  in
a similar police encounter one year after the  killing  of  Sohrabuddin  who
was killed simply because he was a witness to the abduction  of  Sohrabuddin
and his wife by the police party.  On  September  30,  2008  the  Court  was
informed that following the submission of  the  charge-sheet,  even  as  the
matter was under  the  scrutiny  of  this  Court,  the  case  was  hurriedly
committed and the trial court had fixed the hearing on the charge on  a  day
to day basis. The Court on that date stayed further proceedings in  Sessions
Case no. 256 of 2007 and directed for the records of the case to be  put  in
the safe custody of the Registrar General of the Gujarat High Court.
4.    In further proceedings before this Court, the State  of  Gujarat  took
the stand that all that was required to be done was done in the  matter  and
there was nothing more for this Court to do. It was argued on behalf of  the
State that with the submission of the charge-sheet this  Court’s  power  and
authority to monitor the investigation came to an  end  and  the  case  came
under the exclusive jurisdiction of the  magistrate/trial  court  who  would
proceed further on the basis of the charge-sheet submitted by the police.
5.    This Court felt otherwise. It appeared to the Court that there were  a
number of aspects of the case, including the killing of  Tulsiram  Prajapati
that were not addressed at all by the Gujarat Police. The State of  Gujarat,
however, continued to maintain that the killing  of  Tulsiram  Prajapati  in
the police encounter had no connection with the killings of Sohrabuddin  and
his wife. That being the position taken by the State it was but natural  for
the State police not to investigate any linkages  between  the  killings  of
Sohrabuddin and his wife on  the  one  hand  and  the  killing  of  Tulsiram
Prajapati on the other.
6.    Among the number of reasons that weighed with the  Court  to  ask  the
CBI to investigate into the killings  of  Sohrabuddin  and  his  wife,  even
after  the  submission  of  charge-sheet  by  the  Gujarat  Police  was  the
trenchant refusal by the State of Gujarat and the State police  to  see  any
connection between the killings of Sohrabuddin and his wife and the  killing
of Tulsiram Prajapati. In the order dated January  12,  2010  by  which  the
investigation of the case was entrusted to  the  CBI,  the  Court  commented
upon the persistent effort to disconnect the Prajapati  encounter  from  the
killings of Sohrabuddin and his wife as under:

           “From the charge-sheet, it also appears that  the  third  person
           was ‘sent somewhere’.  However,  it  appears  that  the  literal
           translation of the charge-sheet in Gujarati would mean  that  he
           was ‘anyhow made to disappear’. From this, we are also satisfied
           that an attempt was made by  the  investigating  agency  of  the
           State of Gujarat to mislead the Court.”  (paragraph  63  of  the
           order)


           “The possibility of the third person  being  Tulsiram  Prajapati
           cannot be ruled out, although  the  police  authorities  or  the
           State had made all possible efforts to  show  that  it  was  not
           Tulsiram. In our view, the fact  surrounding  his  death  evokes
           strong suspicion that a deliberate attempt was made to destroy a
           human witness.” (paragraph 65 of the order)


           “No justification can be found for the Investigating Officer Ms.
           Johri walking out of the investigation with respect to  Tulsiram
           Prajapati’s death without even informing this Court.” (paragraph
           66 of the order)


                                              (emphasis added)


7.    Further, recounting the many deficiencies in the investigation by  the
Gujarat Police, this Court also noticed its omission  to  analyse  the  call
details of the accused. The Court observed:
           “So far as the call records are concerned, it would  be  evident
           from  the  same  that  they  had  not  been  analysed  properly,
           particularly the call  data  relating  to  three  senior  police
           officers  either  in  relation  to  Sohrabuddin’s  case  or   in
           Prajapati’s case.” (paragraph 66 of the order)

8.    In light of the above and a number  of  other  acts  of  omission  and
commission as appearing from the eight Action Taken  Reports  (submitted  in
course of hearing of the writ  petition)  and  the  Gujarat  Police  charge-
sheet, this Court asked the CBI to investigate the killings  of  Sohrabuddin
and his wife Kausarbi, giving the following directions:

      “82. Accordingly, in the facts and circumstances even  at  this  stage
      the police authorities of the State are  directed  to  hand  over  the
      records of the present case to the CBI Authorities within a  fortnight
      from this date and thereafter the CBI Authorities shall  take  up  the
      investigation and complete the same within six months from the date of
      taking over the investigation from the State police  authorities.  The
      CBI Authorities shall investigate all aspects of the case relating  to
      the killing of Sohrabuddin and his wife Kausarbi including the alleged
      possibility of a larger conspiracy. The report of the CBI  Authorities
      shall be filed in  this  Court  when  this  Court  will  pass  further
      necessary orders in accordance with the said report, if necessary.  We
      expect that the police authorities  of  Gujarat,  Andhra  Pradesh  and
      Rajasthan shall cooperate with the CBI Authorities in  conducting  the
      investigation properly and in an appropriate manner.”


(emphasis added)

9.    It may here be noted that another writ petition [being  Writ  Petition
(Criminal) No.115 of 2007] filed by Narmada  Bai,  the  mother  of  Tulsiram
Prajapati, relating to the encounter killing of her son was till that  stage
being heard along with the Sohrabuddin case (Writ Petition  (Criminal)  No.6
of 2007). But in the concluding part of the order, in regard to  Prajapati’s
case it was directed as follows:
      “Writ Petition (Crl.) No.115 of 2007
           84. So far as WP (Crl.) No.115 of 2007 is  concerned,  let  this
      matter be listed after eight weeks before an appropriate Bench.”

10.   As directed by this Court, the CBI took up the investigation into  the
Sohrabuddin case after instituting a fresh FIR on February 1, 2010.  In  the
call records of the accused that had not been worked out  in  the  hands  of
Gujarat Police, the CBI claims to have found a valuable source of  important
clues. On the basis of the call records, the  statements  of  witnesses  and
other materials collected by it, the CBI claims  that  it  has  unearthed  a
conspiracy of much larger proportions. It submitted a charge-sheet  on  July
23, 2010 in which, in addition to the thirteen accused named in the  charge-
sheet of the Gujarat Police, another 6 persons were also named  as  accused,
being part of the larger conspiracy. In the charge-sheet  submitted  by  the
CBI, one of the accused is Amitbhai Shah, who till then was the minister  of
State for Home in the State  Government.  The  accusation  against  Amitbhai
Shah is that he was the lynchpin of the conspiracy.
11.   Following the submission of the charge-sheet by the CBI, on  July  25,
2010, Amitbhai Shah was arrested and was sent to judicial custody.
12.   As noted above, this Court  had  asked  the  CBI  to  investigate  all
aspects of the case relating to the killings of  Sohrabuddin  and  his  wife
Kausarbi, including  the  possibility  of  a  larger  conspiracy.  The  CBI,
therefore, felt that it was both authorized  and  under  the  obligation  to
investigate the Prajapati case as well, as it prima  facie  appeared  to  be
integrally  connected  with  the  Sohrabuddin  case.  The  Gujarat   Police,
however, would neither hand over the records of the Prajapati  case  to  the
CBI nor allow it to make any  independent  investigation  in  the  Prajapati
case. On  the  contrary,  the  Gujarat  Police  purported  to  complete  its
investigation and, like the case of Sohrabuddin, rather hurriedly filed  the
charge-sheet in the case on July  30,  2010,  followed  by  a  supplementary
charge-sheet on July 31, 2010, before the Judicial Magistrate, First  Class,
Danta, Banaskantha District. The magistrate, equally quickly  committed  the
case to the court of Sessions in two days’  time  on  August  2,  2010  even
without a proper compliance with the provisions of section 207 of  the  Code
of Criminal Procedure.
13.   According to the charge-sheet, Prajapati was indeed killed in  a  fake
encounter but there was nothing more to it than that. There was  no  attempt
to investigate any larger conspiracy or  to  try  to  connect  it  with  the
Sohrabuddin case. On the other hand, the whole effort was to present  it  as
a separate case, quite unconnected with the case of Sohrabuddin.
14.   In the meanwhile, Amitbhai Shah was granted bail by the  Gujarat  High
Court, by order dated October 29,  2010  passed  in  Criminal  Miscellaneous
Application No.12240 of 2010. Against the order passed by  the  High  Court,
the CBI immediately came to this  Court  in  SLP  (Crl.)  No.9003  of  2010,
giving rise to the present appeal seeking cancellation of  bail  granted  to
Amitbhai Shah. On October 30, 2010, notices were issued to respondent  nos.1
and 2, i.e. Amitbhai Shah and the State of Gujarat. At the time of  issuance
of notice, on the prayer made on behalf of the CBI to stay the operation  of
the bail order passed by the High Court on the ground that once released  on
bail the accused would tamper with prosecution evidence, it  was  stated  on
behalf of respondent no.1 that he would leave Gujarat the following  morning
and would stay out of the State till further orders that may  be  passed  by
this Court.
15.   On November 25, 2010, the CBI submitted a copy  of  its  final  report
before this Court, copies  of  which  were  directed  to  be  given  to  the
parties.
16.   On December 14, 2010, it was brought to the notice of the  Court  that
the Prajapati case had so far not been listed before the Bench to  which  it
was assigned and, consequently, no order was passed  in  that  case  by  the
Court. Nevertheless, the trial court was proceeding to start  the  trial  of
the accused on the basis  of  the  charge-sheet  submitted  by  the  Gujarat
Police. A grievance was made that in case the trial  court  was  allowed  to
proceed, it might be too late by the time any order is passed by this  Court
in the Prajapati case. At that stage, Mr. Tushar Mehta,  Sr.  AAG  appearing
for the State of Gujarat fairly stated  that  no  further  proceeding  would
take place in the case  arising  from  the  charge-sheet  submitted  by  the
Gujarat Police in the Prajapati case until this Court passed some orders  on
the status report submitted by the CBI in this case and  the  Writ  Petition
(Crl.) No.115 of 2007 was taken up by the Court.
17.   On January 13, 2011, the  CBI  filed  the  present  transfer  petition
(Transfer  Petition  (Criminal)  No.44  of  2011)  for   transfer   of   the
Sohrabuddin case bearing Special Case No.5 of 2010 pending in the  court  of
Additional Chief Metropolitan Magistrate, CBI,  Mirzapur  Ahmedabad,  titled
“CBI v. D.G. Vanzara & Ors” to the CBI court in Mumbai or  any  other  State
and for a further direction for the constitution of a special  court.  This,
in short, is about the proceedings  of  the  Sohrabuddin  case  before  this
Court.
18.   At this point, we may also take a brief look at  the  Prajapati  case,
Writ  Petition  (Criminal)  No.115  of  2007  before  this  Court.   It   is
interesting to note that  in  the  first  counter  affidavit  filed  in  the
Prajapati case, the State took the  stand  that  the  petition  filed  under
Article 32 of the Constitution was  not  maintainable  because  a  case  was
already registered with the police according to which the son  of  the  writ
petitioner was killed in a police encounter. It was contended that the  writ
petition filed in the Sohrabuddin case was for a writ of habeas  corpus  and
it was for that reason alone that it was entertained by  this  Court.  There
was no such angle in the present case.  In  the  counter  affidavit  it  was
further stated that Tulsiram Prajapati was a dreaded criminal,  involved  in
21 criminal cases. As to the manner of  his  death,  the  counter  affidavit
reiterated and fully supported the police version as stated in the two  FIRs
relating to his alleged escape from the police  custody  while  being  taken
back after court  remand  and  his  death  in  a  police  encounter  on  the
following day. It  was  pointedly  denied  that  Tulsiram  Prajapati  was  a
witness in  the  Sohrabuddin  case.  It  was  asserted  that  there  was  no
connection in the two cases.
19.   However, by the time the writ petition came up  for  hearing,  another
affidavit was filed on behalf of State of Gujarat on  August  19,  2010.  In
this affidavit it was conceded that Tulsiram Prajapati was killed in a  fake
encounter. It was, however,  submitted  that  the  State,  CID  (Crime)  had
already filed a charge-sheet in the case. It was further the  stand  of  the
State that the encounter killing of Tulsiram Prajapati  had  nothing  to  do
with the killings of Sohrabuddin and Kausarbi.
20.   It is, thus, to be seen that the Prajapati case also followed  exactly
the same pattern  as  the  case  of  Sohrabuddin.  Initially,  there  was  a
complete denial by the State that he was  killed  in  any  kind  of  a  fake
encounter. But, when it became impossible to deny  that  the  story  of  the
encounter was false, an  investigation  was  swiftly  made  by  the  Gujarat
Police and charge-sheet was submitted. On the basis of the charge-sheet,  on
the one hand an attempt was made to proceed  with  and  conclude  the  trial
proceedings as quickly as possible and on the  other  hand  this  Court  was
told that after the submission of the charge-sheet it  was  denuded  of  the
authority to direct any further investigation. There was, thus,  clearly  an
attempt not to allow the full facts to come to light in connection with  the
two cases.
21.   Further, in the Prajapati case the State insisted till  the  end  that
though he too was killed  in  a  fake  encounter  there  was  no  connection
between his killing and the killings of Sohrabuddin and his wife, Kausarbi.
22.   The Prajapati case came up before the Court  and  it  was  allowed  by
judgment  and  order  dated  April  8,  2011[2].  The  Court  debunked   the
contention that there was no connection between the killings of  Sohrabuddin
and Kausarbi and the killing of Tulsiram Prajapati (see paragraphs 47 to  60
of the judgment) and also rejected the claim of the  State  Government  that
the investigation made  in  his  case  was  complete  and  satisfactory.  It
directed  the  State  Government  to  handover  the  investigation  of   the
Prajapati case as well, to the CBI.
23.   In pursuance of  the  Court’s  direction,  the  CBI  investigated  the
Prajapati case and even as  the  hearing  on  the  present  appeal  and  the
transfer petition was underway submitted the charge-sheet  on  September  4,
2012. In the Prajapati charge-sheet Amitbhai  Shah  and  a  number  of  very
senior police officers of the State are cited as accused.
 24.  The facts and circumstances noted above,  very  briefly,  provide  the
background in which the case of the CBI for cancelling the bail  granted  to
Amitbhai Shah (accused No.16 in transfer petition  and  respondent  No.1  in
criminal appeal) in Sohrabuddin case and transferring that  case  for  trial
outside Gujarat is to be considered.
25.   Mr. Tankha, senior advocate, appearing for the CBI made a strong  plea
for cancelling the bail of Amitbhai Shah and  transferring  the  Sohrabuddin
case  outside  Gujarat.  Mr.  Ram  Jethmalani,  learned   senior   advocate,
appearing on behalf of  Amitbhai  Shah  with  equal  vehemence  opposed  the
prayer for cancellation of his bail. However, insofar  as  the  transfer  of
the case is concerned, at the end of the hearing  he  stated  that  Amitbhai
Shah was prepared to face  the  trial  anywhere  and  he  would,  therefore,
accept the transfer of the case without demur. The  transfer  petition  was,
however, opposed by  the  State  and  the  other  accused,  namely,  Dahyaji
Gobarji  Vanzara  (respondent  No.1  in  the  transfer  petition),  Rajkumar
Pandyan (respondent No.2  in  the  transfer  petition),  Naransinh  Harisinh
Dabhi (respondent No.5  in  the  transfer  petition)  Balkrishan  Lalkrishna
Chaubey (respondent No.6 in the transfer  petition)  and  Narendra  Kantilal
Amin (respondent No.12  in  the  transfer  petition)  and  their  respective
counsel were heard by the Court at length.
26.   The submissions made by the CBI in  support  of  the  prayer  for  the
cancellation of bail and the transfer of the  case  were  substantially  the
same. It was submitted on its behalf that Amitbhai  Shah  presided  over  an
extortion racket.  In his capacity as the minister for Home,  he  was  in  a
position to place his henchmen, top ranking  policemen  at  positions  where
they could sub-serve and safeguard  his  interests.   He  was  part  of  the
larger conspiracy to kill Sohrabuddin and later  on  his  wife  and  finally
Tulsiram Prajapati, as he was a witness to the abduction of Sohrabuddin  and
his wife by the police party.  Taking  advantage  of  his  position  as  the
minister,  he  constantly  obstructed  any  proper  investigation  into  the
killings of Sohrabuddin and Kausarbi  even  when  the  matter  came  to  the
notice of this Court  and  this  Court  issued  directions  for  a  thorough
investigation into their killings.  It was  at  his  behest  and  under  his
pressure that the top ranking police officers tried to cover  up  all  signs
of his involvement in the killings of  Sohrabuddin,  Kausarbi  and  Tulsiram
Prajapati and systematically suppressed any honest investigation into  those
cases and even tried to mislead this Court.  Even  after  the  investigation
was handed over to the CBI, he made things very difficult for them  and  the
CBI was able to do the investigation against  great  odds.   It  is  further
submitted that the phone records pertaining to the periods when  Sohrabuddin
and his wife were abducted, Sohrabuddin was killed and his wife  was  killed
and her body was disposed of by burning and of the later period at the  time
of killing of Prajapati showed Amitbhai  Shah  in  regular  touch  with  the
policemen, accused in the case, who were  actually  executing  the  killings
and the other allied offences. There was no  reason  for  the  minister  for
State of Home to speak directly on phone to police officers, far  below  him
in the chain of command and the explanation given on his  behalf  in  regard
to those phone calls was on the face of it false  and  unacceptable.   Apart
from  the   phone   records,   there   were   many   other   materials   and
incontrovertible circumstances to establish  the  charges  against  Amitbhai
Shah.
27.   It was submitted that his release on bail  and  permission  to  freely
stay in Gujarat would greatly jeopardize the efforts of  the  CBI  to  bring
home the charges against him.  Even after his arrest and while in  jail,  he
had sufficient resources and influence to tamper with the  evidence  and  to
intimidate the prosecution witnesses. It was  contended  that  allowing  the
appellant to enjoy the privilege of bail and further  to  let  him  stay  in
Gujarat would have a very debilitating effect on the  prosecution  case.  It
was further contended that apart from  Amitbhai  Shah,  some  of  the  other
accused in the case  were  senior  police  officers  with  great  clout  and
resourcefulness and they were fully capable of subverting a  fair  trial  in
Gujarat.
28.   Mr. Ram  Jethmalani,  senior  advocate  appearing  for  Amitbhai  Shah
submitted, with equal force, that the allegations made by  the  CBI  against
his client were no  more  than  a  pack  of  lies.  He  submitted  that  the
direction of this Court handing over the investigation  of  the  Sohrabuddin
case to the CBI gave a handle to the Central Government to  wreck  political
vendetta on the democratically elected Government in  Gujarat.   He  further
submitted that the CBI was being used in this case to frame  up  his  client
in a completely false case. He contended that the Gujarat Police had made  a
proper investigation but the CBI  put  the  charge-sheet  submitted  by  the
Gujarat  Police  in  this  case  upside-down.   It  forged  and   fabricated
evidences against Amitbhai Shah and set-up an entirely  false  case  against
him.  He also submitted that the High Court  had  rightly  granted  bail  to
Amitbhai Shah and there was no reason for this Court to cancel it.
29.   At this  stage,  we  do  not  wish  to  express  any  opinion  on  the
submissions made from the two sides lest any remark made in the order  might
cause prejudice to either the accused  or  the  prosecution  in  the  trial.
However, on hearing Mr. Tankha for  the  CBI,  Mr.  Ram  Jethmalani,  senior
advocate for Amitbhai Shah, Mr.  Huzefa  Ahmadi,  for  the  writ  petitioner
Rubabbuddin Sheikh and Mr. Gopal Subramanium, learned Amicus Curiae, we  are
not inclined to cancel the bail granted to Amitbhai  Shah  about  two  years
ago. Had it been an application for grant of bail to Amitbhai  Shah,  it  is
hard to say what view the Court might have taken but the considerations  for
cancellation of bail granted by the High Court are materially different  and
in this case we feel reluctant to deprive Amitbhai  Shah  of  the  privilege
granted to him by the High Court.
30.   However, the apprehension expressed by the CBI that Amitbhai Shah  may
misuse the freedom and try to subvert  the  prosecution  cannot  be  lightly
brushed aside.  We, accordingly, direct that Amitbhai Shah (respondent  No.1
in criminal appeal) shall give an undertaking in writing to the trial  court
that he would not commit any breach of the conditions of the bail  bond  and
would not try to influence any witnesses  or  tamper  with  the  prosecution
evidence in any manner. We further direct that Amitbhai Shah will report  to
the CBI office every alternate Saturday at 11.00 AM.   It  is  further  made
clear that the grant of bail to Amitbhai Shah in the Sohrabuddin case  shall
have no effect in the Prajapati case and in that case whether Amitbhai  Shah
is to be kept in judicial custody or granted bail would be  decided  by  the
court on the basis of the materials on  record  of  that  case  and  without
taking into consideration the grant of bail to him in the Sohrabuddin  case.

31.   The grant of bail to Amitbhai Shah in Sohrabuddin  case  shall  be  no
consideration for grant of bail to the other accused in that  case  and  the
prayer for bail by the other  accused  in  the  Sohrabuddin  case  shall  be
considered on its own merits.
32.   In case Amitbhai Shah commits any breach  of  the  conditions  of  the
bail bond or the undertaking given to the court, as directed above, it  will
be open to the CBI to move the trial court for cancellation of his bail.  In
that case, if the allegations  pertain  to  the  period  posterior  to  this
order, the trial court shall  examine  the  matter  carefully  and  take  an
independent decision without being influenced by  this  order  declining  to
cancel the bail granted to him.
33.   Coming now to the question of transferring the case  outside  Gujarat,
the manner in which the Sohrabuddin case has proceeded before this Court  in
itself, without anything else, makes out a strong case for transferring  the
trial of the case outside the  State.  It  is  also  noted  above  that  Mr.
Jethmalani made the declaration that his client  is  prepared  to  face  the
trial at any place and wherever the  trial  is  held  he  would  expose  the
falsity of the CBI case. However, the State and a number  of  other  accused
were strongly opposed to the transfer of the  case  outside  the  State  for
trial. On behalf of CBI, on the other hand, it was contended that there  was
hardly any hope of any fair trial of the case in that State.
34.   At this stage, we may note an episode in the  proceedings  before  the
magistrate that is cited by the CBI as one of the grounds in support of  its
prayer for the transfer of the case outside the State.  On  July  26,  2010,
one of the accused N.K. Amin filed a petition before the ACJM under  section
306 of the Code of Criminal Procedure for grant  of  pardon  and  for  being
considered as an approver. In the application he stated that he  desired  to
give statement/evidence about the facts within his knowledge concerning  the
offence for which he was being prosecuted and further that he was ready  and
willing to give his statement under  section  164(2)  [sic  (5)]  so  as  to
become an approver in the case. The magistrate did not  pass  any  order  on
that application but strangely gave its  notice  to  other  accused  in  the
case.  The other accused  took  time  to  file  their  responses  until  the
magistrate referred the matter to the High Court under section  395  of  the
Code of Criminal Procedure after almost five weeks  of  the  filing  of  the
petition.  The reference was eventually  dismissed  by  the  High  Court  as
incompetent. In the meanwhile, on August 21, 2010, Smt. Jayshree  Amin,  the
wife of N.K. Amin filed a complaint to  the  CBI  alleging  threats  to  her
husband’s life  in  Sabarmati  jail.  The  CBI  duly  forwarded  the  letter
received from Smt. Jayshree Amin to the ACJM but  no  action  was  taken  on
that letter.  N.K. Amin  finally  filed  a  petition  on  January  18,  2011
requesting the ACJM not to pass any order on his application  under  section
306(Exh.8) and section  164(5)  (Ex.49).  In  this  petition,  he  made  the
complaint that on his application under section 306 the court did  not  pass
any order but delayed the matter  by  giving  the  other  accused  time  for
filing their objection.  As a result there was grave threat to his  life  in
the jail. In any event, after he received a copy of the  charge-sheet  filed
by the CBI and  found  that  in  that  charge-sheet  three  other  policemen
(namely, Ajay  Parmar,  Santaram  Chandrabhan  Sharma  and  Vijay  Arjunbhai
Rathod) were not arrayed as accused, he had, for  the  time  being,  decided
not to make any statement before the court keeping his  options  open  after
the case is committed to the court of sessions.
35.   On  behalf  of  the  CBI,  it  is  submitted  that  on  receiving  the
application from N.K.  Amin  the  learned  magistrate  adopted  a  procedure
unknown to law but that gave sufficient time to the  other  accused  to  win
back N.K. Amin over  to  their  side  by  giving  him  intimidations  and/or
inducements.
36.   In the counter affidavit filed on behalf of the State and N.K. Amin  a
number of accusations are made against the CBI on this issue. It is  evident
that since filing the application for being made an approver  in  the  case,
N. K. Amin has changed his mind (to which he is  fully  entitled).  But  the
fact of the matter is that both  the  petitions  dated  July  26,  2010  and
January 18, 2011 filed by him before the ACJM and the orders passed  by  the
learned magistrate on those petitions are part of the  judicial  record  and
cannot be simply denied away.
37.   Besides the above there are other instances as would appear  from  the
proceedings in the Sohrabuddin case when this Court had reasons not to  feel
entirely happy at the way the courts below dealt with the matter.
38.   On hearing Mr. Tankha, appearing for the CBI, Mr. Ahmadi  representing
the writ petitioner, Mr. Tushar Mehta appearing on behalf of  the  State  of
Gujarat, and the  counsel  appearing  for  the  different  accused  and  Mr.
Subramanium, the learned amicus, and on a careful consideration of  all  the
material  facts  and  circumstances  as  also  having  regard  to  the  past
experience in the Sohrabuddin matter, we are  convinced  that  in  order  to
preserve the integrity of the trial it is necessary to shift it outside  the
State.
39.   The decision to transfer the case is not a  reflection  on  the  State
judiciary and it is made clear that this Court reposes  full  trust  in  the
judiciary of the State.  As a matter of fact, the decision to  transfer  the
case outside the State is intended to save the  trial  court  in  the  State
from undue stress and to avoid any possible misgivings in the minds  of  the
ordinary people about the case getting a fair trial in the State.
 40.  In Nahar Singh Yadav and another v.  Union  of  India  and  others[3],
this Court on a consideration of the earlier  decisions  laid  down  certain
conditions which may require a case to be  transferred  outside  the  State.
In paragraph 29 of the decision it observed as follows-
      “Thus, although no rigid and inflexible rule or  test  could  be  laid
      down to decide whether or not power under Section 406 CrPC  should  be
      exercised, it is manifest from a bare reading of sub-sections (2)  and
      (3) of the said section and on an analysis of the  decisions  of  this
      Court that an order of transfer of trial is not  to  be  passed  as  a
      matter of routine or merely because an interested party has  expressed
      some apprehension about the proper conduct of a trial.  This power has
      to be exercised cautiously and in  exceptional  situations,  where  it
      becomes necessary to do so to provide credibility to the trial.   Some
      of the broad factors which could be kept in mind while considering  an
      application for transfer of the trial are:


      (i)   when it appears that  the  State  machinery  or  prosecution  is
      acting hand in glove with the accused,  and  there  is  likelihood  of
      miscarriage of justice  due  to  the  lackadaisical  attitude  of  the
      prosecution;


      (ii)  when there is material to show that the  accused  may  influence
      the prosecution witnesses or cause physical harm to the complainant;


      (iii) comparative inconvenience and hardships likely to be  caused  to
      the  accused,  the  complainant/the  prosecution  and  the  witnesses,
      besides the burden to be  borne  by  the  State  exchequer  in  making
      payment of traveling and other  expenses  of  the  official  and  non-
      official witnesses;


      (iv)  a communally surcharged atmosphere,  indicating  some  proof  of
      inability  of  holding  fair  and  impartial  trial  because  of   the
      accusations made and the nature of the crime committed by the accused;
      and


      (v)   existence of some material from which it can  be  inferred  that
      some persons are so hostile that they are interfering or are likely to
      interfere either directly or indirectly with the course of justice.”

We find that the conditions at serial numbers (1),  (2),  (3)  and  (5)  are
squarely attracted in this case.
41.   In another decision in Ravindra Pal Singh  v.  Santosh  Kumar  Jaiswal
and others[4], this Court directed for transfer of the  case  outside  State
because some of the accused in a case  of  fake  encounter  were  policemen.
The case in hand  has  far  more  stronger  reasons  for  being  transferred
outside the State.  We, accordingly, direct  for  the  transfer  of  Special
Case No.05/2010 pending  in  the  court  of  Additional  Chief  Metropolitan
Magistrate, CBI, Court Room No.2,  Mirzapur,  Ahmedabad  titled  CBI  versus
D.G. Vanzara & Others to the court of CBI, Bombay. The Registrar General  of
the Gujarat High Court is directed to collect the entire record of the  case
from the court of Additional Chief Metropolitan Magistrate, CBI, Room  No.2,
Mirzapur, Ahmedabad and to transmit it to the Registry of  the  Bombay  High
Court from where it would be sent to a CBI court as may be  decided  by  the
Administrative Committee of the High Court.   The  Administrative  Committee
would assign  the  case  to  a  court  where  the  trial  may  be  concluded
judiciously,  in  accordance  with  law,  and   without   any   delay.   The
Administrative  Committee  would  also  ensure  that  the  trial  should  be
conducted from beginning to end by the same officer.
42.   On behalf of the CBI, it was stated that they need six weeks’  further
time to  complete  the  investigation.   They  are  directed  to  positively
complete the investigation within six weeks and  submit  the  final  charge-
sheet before the transferee court in Mumbai.
43.   The Sohrabuddin case stands transferred to Mumbai by this  order.   It
is the case of the CBI  that  the  case  of  Sohrabuddin  and  the  case  of
Tulsiram  Prajapati  are  closely  connected  and  in  order  to  avoid  any
miscarriage of justice, both the cases can only be  tried  before  the  same
court. It will, therefore, be open to the CBI to  make  an  application  for
transfer of the Tulsiram Prajapati case also to the  same  court  where  the
Sohrabuddin case is transferred.  In case, such  an  application  is  filed,
the court will pass  appropriate  orders,  in  accordance  with  law,  after
hearing all concerned.
44.   In the result, the appeal is dismissed but the  transfer  petition  is
allowed.


                                        …………………………….J.
                                        (Aftab Alam)




                                        …………………………….J.
                                        (Ranjana Prakash Desai)
New Delhi;
September 27, 2012.

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[1]    (2010) 2 SCC 200
[2]    (2011) 5 SCC 79
[3]    (2011) 1 SCC 307
[4]    (2011) 4 SCC 746

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