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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 149 OF 2012
Amitbhai Anilchandra Shah .... Petitioner(s)
Versus
The Central Bureau of
Investigation & Anr. .... Respondent(s)
WITH
WRIT PETITION (CRIMINAL) NO. 5 OF 2013
J U D G M E N T
P. Sathasivam, J.
1) Amitbhai Anilchandra Shah has filed the present Writ
Petition being No. 149 of 2012 under Article 32 of the
Constitution of India owing to the filing of fresh FIR being No.
RC-3(S)/2011/Mumbai dated 29.04.2011 by the Central
Bureau of Investigation (CBI) and charge sheet dated
04.09.2012 arraying him as an accused in view of the
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directions given by this Court to the Police Authorities of the
Gujarat State to handover the case relating to the death of
Tulsiram Prajapati - a material witness to the killings of
Sohrabuddin and his wife Kausarbi to the CBI in Narmada
Bai vs. State of Gujarat & Ors., (2011) 5 SCC 79.
2) In Narmada Bai (supra), this Court, taking note of the
fact that the charge sheet has been filed by the State of
Gujarat after a gap of 3½ years and also considering the
nature and gravity of the crime, rejected the investigation
conducted/concluded by the State Police and directed the
State police authorities to handover the case to the CBI.
After investigation, the CBI filed a fresh FIR dated
29.04.2011 against various police officials of the States of
Gujarat and Rajasthan and others for acting in furtherance of
a criminal conspiracy to screen themselves from legal
consequences of their crime by causing the disappearance
of human witness, i.e., Tulsiram Prajapati, by murdering him
on 28.12.2006 and showing it off as a fake encounter.
Though the said FIR did not specifically name any person, in
the charge sheet dated 04.09.2012 filed in the said FIR
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before the Court of Judicial Magistrate First Class, Danta
District, Banaskantha, Gujarat, the petitioner herein was
arrayed as A-1. Further, due to lack of jurisdiction, the
charge sheet was presented before the 2nd Additional Chief
Judicial Magistrate, (First Class), (CBI Court No. 1),
Ahmedabad, Gujarat.
3) Being aggrieved by the fresh FIR dated 29.04.2011 and
charge sheet dated 04.09.2012, the petitioner herein has
filed the above said writ petition on the ground of it being
violative of his fundamental rights under Articles 14, 20 and
21 of the Constitution and contrary to the directions given in
Narmada Bai (supra).
Writ Petition (Criminal) No. 5 of 2013:
4) Sangiah Pandiyan Rajkumar IPS-who was arrayed as A-3
in the charge sheet dated 04.09.2012 has filed the above
said writ petition praying for similar relief as sought for in
Writ Petition (Crl.) No. 149 of 2012. Since the grievance of
the above-said petitioner is similar to that of the petitioner in
W.P. (Crl.) No. 149 of 2012, there is no need to traverse
those details once again.
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5) Heard Mr. Mahesh Jethmalani, learned senior counsel
for the petitioner in W.P. (Crl.) No. 149 of 2012, Mr. K.V.
Viswanathan, learned senior counsel for the petitioner in
W.P. (Crl.) No. 5 of 2013, Mr. H.P. Rawal, learned Additional
Solicitor General for the CBI and Mr. Tushar Mehta, learned
Additional Advocate General for the State of Gujarat.
Discussion:
6) A perusal of the prayer in the writ petition clearly
shows that the petitioner is not seeking quashing of
investigation, however, praying for quashing of second FIR
being No. RC-3(S)/2011/Mumbai dated 29.04.2011 and also
praying that the charge sheet dated 04.09.2012 in respect of
the said FIR be treated as supplementary chargesheet in first
FIR being No. RC No. 4S of 2010 so that his fundamental
right under Article 21 is not infringed.
7) Mr. Mahesh Jethmalani, learned senior counsel for the
petitioner pointed out that the reliefs sought for are in
consonance with the law laid down by this Court in C.
Muniappan & Ors. vs. State of Tamil Nadu (2010) 9 SCC
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567. He very much relied on para 37 of the said judgment
which holds as under:
“…..Merely because two separate complaints had been
lodged, did not mean that they could not be clubbed
together and one charge sheet could not be filed”
8) It is also pointed out by learned senior counsel for the
petitioner-Amit Shah that the above said prayer is based
upon CBI’s own finding that the offence covered by the
Second FIR is part of the same conspiracy and culminated
into the same series of acts forming part of the same
transaction in which the offence alleged in the first FIR was
committed. It is also pointed out that it is the case of the
CBI itself before this Court that even the charges will have to
be framed jointly and one trial will have to be held as
contemplated under Section 220 of the Code of Criminal
Procedure, 1973 (in short ‘the Code’). It is further pointed
out that as per the CBI, the alleged criminal conspiracy
commenced when Sohrabuddin and Kausarbi (whose deaths
were in question in the first FIR) and Tulsiram Prajapati
(whose death was in question in the second FIR) were
abducted from Hyderabad after which Sohrabuddin was
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allegedly killed on 25/26.11.2005 and Kausarbi and Tulsiram
Prajapati were killed thereafter since they were, as per CBI,
the eye-witnesses. Finally, it is highlighted that the
competent jurisdictional court has already taken cognizance
of all the three alleged killings in the chargesheet/challan
filed by the CBI in the first FIR itself.
9) Before going into the factual matrix as projected by
learned senior counsel for the petitioner, it is desirable to
refer to the stand taken by the CBI.
10) It is the definite case of the CBI that the abduction of
Sohrabuddin and Kausarbi and their subsequent murders as
well as the murder of Tulsiram Prajapati are distinct offences
arising out of separate conspiracies though inter-connected
with each other as the motive behind the murder of Tulsiram
Prajapati was to destroy the evidence in respect of the
abduction of Sohrabuddin and Kausarbi, as he was a prime
witness to the said incident. It is not in dispute that as per
the scheme prescribed in the Code, once a complaint is
received with respect to a cognizable offence, the
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investigating authority is duty bound to register an FIR and,
thereafter, initiate investigation.
11) Mr. Rawal, learned Additional Solicitor General
appearing for the CBI, by drawing our attention to Section
218 of the Code submitted that a distinct charge is to be
framed for a distinct offence, i.e., there has to be a separate
charge for separate offence and each distinct charge has to
be tried separately. He further pointed out that the concept
of joint trial, which is an exception and not the rule cannot
be made applicable to the stage either of investigation or
the filing of charge sheet of a report under Section 173(2) of
the Code. He also highlighted that in the Code, there is no
concept of joint investigation. The only exception is under
Sections 219 and 220 of the Code that a person can be tried
at one trial for more offences than one committed within a
period of one year. He also pointed out that there is no bar
in law to file separate FIR/complaint in respect of two distinct
offences and similarly there is no bar to file two separate
charge-sheets for seeking prosecution of accused in two
distinct offences. He further highlighted that in T.T.
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Anthony vs. State of Kerala (2001) 6 SCC 181, the
principle that was laid down with regard to the bar of filing of
the second FIR was only in respect of the same incident or
occurrence. According to him, whether the offences are
distinct or same would necessarily have to be examined in
the facts and circumstances of each case. He also submitted
that the facts urged in the affidavit were on the basis of
mere suspicion, hence, CBI cannot be held to be bound by its
initial response in the status report or the affidavit since on a
complete investigation, it is revealed that not only both the
offences are distinct and separate but both the conspiracies
were also hatched at different points of time. It is also
pointed out by the CBI that the abduction and subsequent
murder of Sohrabuddin and the murder of Tulsiram Prajapati
after a period of more than one year are separate and
distinct offences. According to him, the material available
with the CBI would show distinct and separate conspiracy to
eliminate Sohrabuddin and, thereafter, another conspiracy
was hatched in order to eliminate Tulsiram Prajapati as soon
as the accused persons apprehended that Tulsiram Prajapati
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would spill the beans with respect to elimination of
Sohrabuddin in a fake encounter.
12) It is the definite case of the CBI that the investigation
has revealed that subsequent to the murder of Hamid Lala,
Sohrabuddin and Tulsiram Prajapati continued their criminal
activities in the States of Maharashtra, Rajasthan and
Gujarat. However, Sohrabuddin remained elusive and
beyond the reach of the Gujarat Police. It was, therefore,
that the accused Amit Shah (petitioner herein), D.G.
Vanzara, S. Pandiyan Rajkumar, Dinesh Man and others
entered into a conspiracy to abduct and murder
Sohrabuddin. Accordingly, D.G. Vanzara, with the aid of
Abhay Chudasma, S.P. Valsad had Tulsiram Prajapati, an
associate of Sohrabuddin, in order to trace Sohrabuddin.
Whilst giving such directions, D.G. Vanzara also assured
Tulsiram Prajapati that he would ensure safe passage for him
as he would be implicated in some petty cases. It was after
this assurance from D.G. Vanzara and Abhay Chudasma that
Tulsiram Prajapati agreed to help them in tracing and
locating Sohrabuddin. Accordingly, Tulsiram Prajapati, in
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accordance with his clandestine agreement with the Gujarat
Police, informed them in advance about the plan of
Sohrabuddin to travel to Sangli from Hyderabad and,
thereafter, Sohrabuddin was abducted and murdered. By
pointing out the above factual details, it is the stand of the
CBI that the first conspiracy took place to eliminate
Sohrabuddin with the help of Tulsiram Prajapati who agreed
to trace and locate him after the assurances given by the
Gujarat Police. Thus, in the aforesaid conspiracy, Tulsiram
Prajapati can be said to be a part of the said conspiracy
though not knowing the motive about the same.
13) It is further pointed out that in pursuance of the
aforesaid criminal conspiracy, Sohrabuddin, Kausarbi and
Tulsiram Prajapati were brought to Valsad, Gujarat in
vehicles by Gujarat Police. From Valsad, Tulsiram Prajapati
was allowed to return to Bhilwara, Rajasthan by the police
party. Subsequently, Sohrabuddin was murdered and shown
as if he was a Lashkar-e-Taiba terrorist killed in an encounter
with a police party on 26.11.2005 at Ahmedabad while his
wife Kausarbi was murdered on 29/30.11.2005 and her body
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was disposed off. Tulsiram Prajapati was shown to be
arrested on 29.11.2005. Since then, he had been lodged in
Udaipur Jail till he met his fate.
14) The most vital evidence that seems to have triggered
Tulsiram Prajapati’s death is a letter of Shri V.L. Solanki
dated 18.12.2006 seeking permission to interrogate Tulsiram
Prajapati and Sylvester lodged in Udaipur Jail. On the very
same letter, Ms. Geetha Johri, head of the SIT is alleged to
have recorded that even she may be given permission to
accompany the IO for interrogation. Thereafter, the said
letter is alleged to have been endorsed by Ms. Geetha Johri
to Shri G.C. Raiger, Additional DGP, CID. It is further pointed
out that the said letter of Shri V.L. Solanki containing the
note of Ms. Geetha Johri was not found in the official file. In
its place, a fabricated note dated 05.01.2007 along with a
noting of Shri G.C. Raiger dated 06/08.01.2007 was found in
the file in which it was recorded as under:-
“13(d) To go to Udaipur to interrogate accused Sylvester
and Tulsi Prajapati (both being allegedly primary witnesses
in the case) of whom Tulsi was recently encountered at BK
by border range.”
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15) It is also pointed out by the CBI that at the time of the
murder of Sohrabuddin, there was no conspiracy to murder
Tulsiram Prajapati and it is only subsequent to his murder
when the accused persons feared of Tulsiram Prajapati being
a threat to them and would spill the beans as he was a
material witness in the first conspiracy inasmuch as tracing
and locating of Sohrabuddin on the assurances of the
accused, another conspiracy was hatched to murder a
potential witness to the murder of Sohrabuddin. By
highlighting these factual details, it is pointed out by the CBI
that there were two distinct and separate conspiracies.
16) With these factual aspects, as projected by the CBI, let
us analyze further details highlighted by learned senior
counsel for the petitioner as well as the specific stand of the
CBI in the earlier proceedings asserted before this Court in
the form of affidavit/counter affidavit and status reports.
Entrustment of investigation to the CBI in respect of
Ist FIR:
17) Initially, Gujarat police conducted investigation into the
killing of two individuals and filed charge sheet in the FIR
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being Crime Register No. 5/2006. This Court, in the writ
petition filed in Rubabbuddin Sheikh vs. State of Gujarat
and Others (2010) 2 SCC 200 did not accept the
investigation of the Gujarat Police and consequently directed
the CBI to conduct investigation. This order was passed by
this Court on 12.01.2010. In the said decision, this Court
expressed a suspicion that the alleged killing of Tulsiram
Prajapati could be the part of the same conspiracy. It is
useful to refer the relevant excerpts from the above decision
which are as under:
“(i) The writ petitioner also seeks the registration of an
offence and investigation by CBI into the alleged encounter
of one Tulsiram, a close associate of Sohrabuddin, who was
allegedly used to locate and abduct Sohrabuddin and his
wife Kausarbi, and was thus a material witness against the
police personnel.
(ii) The report expressly states that no link of Tulsiram
Prajapati had been established in this case. The third
person who was abducted was not to be the said Tulsiram
Prajapati.
(iii) On 02.08.2007, the seventh action taken report was
filed, which stated that the third person who was picked up
was one Kalimuddin, who was suspected to be an informer
of the Police.
(iv) 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”.
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(v) It also appears from the charge-sheet that it
identifies the third person who was taken to Disha farm as
Kalimuddin. But it does not contain the details of what
happened to him once he was abducted. 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.
(vi) Similarly, it was submitted that non-identification of
the third person who was abducted along with Sohrabuddin
and Kausarbi would also not affect the prosecution case.”
18) After expressing and arriving at such a conclusion, this
Court concluded that “the possibility of the third person
being Tulsiram Prajapati cannot be ruled out and that his
killing could be an attempt to destroy a human witness” and
after saying so, transferred the investigation to the CBI.
Ultimately, this Court directed the CBI “to unearth the larger
conspiracy”. The following categorical observations and
directions in paras 65, 66 and 82 are relevant which are
noted hereunder:-
“65. It also appears from the charge-sheet that it identifies
the third person who was taken to Disha farm as
Kalimuddin. But it does not contain the details of what
happened to him once he was abducted. 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 facts surrounding his death evokes strong
suspicion that a deliberate attempt was made to destroy a
human witness.
66. So far as the call records are concerned, it would be
evident from the same that they had not been analysed
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properly, particularly the call data relating to three senior
police officers either in relation to Sohrabuddin's case or in
Prajapati's case. It also appears from the charge-sheet as
well as from the eight action taken reports that the motive,
which is very important in the investigation reports was not
properly investigated into as to the reasons of their killing.
The motive of conspiracy cannot be merely fame and
name. 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.
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.”
19) The observations, findings and directions in
Rubabbuddin Sheikh (supra) clearly show that the
alleged killing of Tulsiram Prajapati was thus perceived even
by this Court to be an act forming part of the very same
transaction and same conspiracy in which the offence of
killing of Sohrabuddin and Kausarbi took place. The CBI also,
upon investigation held that “strong suspicion expressed by
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this Court in the above judgment was true and filed charge
sheet/s”.
20) Pursuant to the decision in Rubabbuddin Sheikh
(supra) dated 12.01.2010, the CBI filed a fresh FIR, viz., first
FIR. It is also clear that during the investigation, the CBI
came to the conclusion that this first FIR was a part of the
series of acts concerning with the alleged offence of
abduction and killing of two individuals, viz., Sohrabuddin on
25/26.11.2005 and Kausarbi on 29.11.2005 culminating with
the killing of one more person, viz., Tulsiram Prajapati as
part of the very same conspiracy.
21) Now, let us discuss the charge sheet dated 23.07.2010
filed by the CBI in the first FIR. As rightly pointed out by Mr.
Mahesh Jethmalani, learned senior counsel for the petitionerAmit Shah, in this chargesheet itself, the CBI categorically
mentioned that the killing of Tulsiram Prajapati is also a part
of the very same conspiracy which is mentioned in the first
FIR above. Though, before us, a different stand was taken
by the CBI, the following excerpts of the charge sheet clearly
show that CBI was very categorical that killing of Tulsiram
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Prajapati is also a part of the very same conspiracy, which
are as under:-
“11……Shri Naymuddin, brother of Shri Sohrabuddin had
gone to see off Shri Sohrabuddin, sister-in-law Smt.
Kausarbi and Tulsiram Prajapati at Indore Bus Stand.
19. Investigation further revealed that the Police Party also
followed the luxury bus. About 15 to 20 kilometers from
the hotel, on the instructions of Shri Rajkumar Pandiyan (A-
2) their vehicles overtook the luxury bus and stopped the
bus. Two police persons entered into the bus and asked
the driver to switch on the light. While the third police
person was having torch in his hand remained near the
door of the bus. The police persons told there is police
checking. All the three police personnel were in civil dress.
They picked up Tulsiram Prajapati who was sitting in the
bus. After sometime, they again came into bus and picked
up Sohrabuddin. When Sohrabuddin was made to get
down from the bus, Kausarbi also got down…..
20. Investigation further disclosed that Shri Sohrabuddin
and Tulsiram Prajapati abducted by police party were
made to sit in the Qualis while Kausarbi was made to sit in
one of the Tata Sumo vehicles along with Santram Sharma
(A-11)…..All of them reached Valsad where at one big
hotel, both the Tata Sumo Vehicles were stopped and they
took lunch. Tulsiram Prajapati was shifted to another
vehicle which was brought by Rajasthan Police personnel.
They took him straight to Udaipur where he was kept in
illegal custody for five days. Thereafter, he was shown
arrested by a team lead by Shri Bhanwar Singh Hada,
Inspector/SHO P.S. Hathipole, Udaipur Rajasthan from
Bhilwara.
32. Investigation further disclosed that in the early part of
November, 2005, Shri Tulsiram Prajapati was contacted by
accused Abhay Chudasama (A-15) and brought to
Ahmedabad where he was produced before accused D.G.
Vanzara (A-1). They asked him to make Sohrabuddin
available before them as there was lot of political pressure.
Tulsiram Prajapati was assured that Sohrabuddin would get
a safe passage and at the most Sohrabuddin would be put
in jail so as to keep him away from glare for 3-4 months.
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No physical harm would be done to Sohrabuddin. Having
got the assurance from accused D.G. Vanzara (A-1),
Tulsiram Prajapati helped accused Abhay Chudasama (A-
15) in tracking down Sohrabuddin.”
22) Apart from the above specific stand, it is also relevant
to point out that the CBI filed supplementary chargesheet
dated 22.10.2010 in the first FIR which made the following
charges:-
“Investigation has also revealed that after the Gujarat
Police Officers had eliminated Shri Tulsiram Prajapati on
28.12.2006 in a fake encounter, Smt. Geeta Johri, the then
IGP prepared a note sheet on 05.01.2006 mentioning
therein inter alia the permission to go to Udaipur to
interrogate the aforesaid two associates of Sohrabuddin
viz., Sylvester and Tulsiram Prajapati, of whom, she
mentioned that Tulsriram Prajapati was encountered by the
Police….”
The above extracts culled out from the chargesheet and
supplementary chargesheet filed in the first FIR by the CBI
would clearly show that killing of Tulsiram Prajapati was a
fake encounter and was part of the same series of acts so
connected together that they form part of the same
conspiracy as alleged in the first FIR. In view of the same,
there cannot be a second FIR dated 29.04.2011 and fresh
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chargesheet dated 04.09.2012 for killing of Tulsiram
Prajapati.
23) It is also relevant to point out that when Writ Petition
(Crl.) No. 115 of 2007 was pending, the CBI, by way of an
affidavit dated 19.08.2010, furnished the following
information:-
(i) Tulsiram Prajapati’s killing is a part of the same
series of acts in which killing of Sohrabuddin and Kausarbi
took place.
(ii) All the three killings are part of the same conspiracy.
(iii) Trial of all the three offences shall have to be one
trial under Section 220 of the Code.
(iv) CBI be given formal permission to investigate
Tulsiram Prajapati killing as “further investigation” in the
first FIR filed by CBI which investigation was going on.
(v) If CBI is not formally given investigation of Tulsiram
Prajapati, prosecution would face questions of “issue
estoppel” & “Res-judicata”.
In the said affidavit, the CBI even prayed for “further
investigation” in the first FIR which becomes evident from
the prayer made by the CBI in the last paragraph of the
affidavit which reads as under:-
“12. That on 12.08.2010, the Hon’ble Supreme Court (Mr.
Justice Aftab Alam and Mr. Justice R.M. Lodha) has granted
three more months to complete the investigation. Hence,
it is prayed that orders for transferring Tulsiram Prajapati
case to the CBI may be issued for expeditious completion
of investigation.”
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24) As rightly pointed out by Mr. Mahesh Jethmalani, the
above prayer of the CBI makes it clear that the CBI had also
prayed for entrustment of Tulsiram Prajapati’s encounter “to
complete the investigation” for which three months time was
granted in W.P. (Crl.) No. 6 of 2007 to complete the
investigation in the first FIR. On reading the abovesaid
affidavit as a whole and the paragraphs quoted above in
particular, it leaves no room for doubt that the CBI itself
prayed for “further investigation” so as to enable it to
“complete the investigation in first FIR” filed by the CBI, i.e.,
FIR dated 01.02.2010 by investigating Tulsiram Prajapati
encounter. In this regard, the order of this Court dated
12.08.2010 relied upon by the CBI is relevant and the same
is quoted hereunder:-
“Order
“In pursuance of the order passed by this Court on January
12, 2010, the CBI has submitted a status report. In the
status report, it is stated that they have been carrying on
investigations as directed by this Court, but on certain
aspects of the matter the investigation remain incomplete.
A prayer is, therefore, made to grant them six months
further time to complete the investigation. It is further
prayed that three other cases that were registered in
connection with the alleged escape of Tulsiram Prajapati
from police escort and his death in a police encounter may
also be transferred for investigation to the CBI because the
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death of Tulsiram Prajapati in the alleged encounter
formed an inseparable part of the investigation which is
entrusted to the CBI by this Court.
Today, Mr. Jethmalani, senior advocate, appeared on
behalf of one of the accused-Amit Shah. Mr. Jethmalani
strongly criticized the manner of investigation by the CBI
and alluded to some larger political conspiracy. He
submitted that he proposed to take steps of
recall/modification of the order dated January 12, 2010
passed by this Court by which the investigation of the case
was taken away from the Gujarat Police and was handed
over to the CBI.
Today, we can proceed only on the basis of the
previous order passed on January 12, 2010 by which the
CBI was directed to investigate all aspects of the case,
relating to the killing of Sohrabuddin and his wife Kausarbi
including the alleged possibility of a larger conspiracy. By
that order, the CBI was asked to complete the investigation
within six months from the date it took over the case from
the State police and to file its report to this Court when this
Court would pass further necessary orders in accordance
with the said report, if necessary.
As on date, the investigation ordered to be made
remains incomplete. In continuation of the previous order,
therefore, the time allowed to the CBI to complete the
investigation is extended by three months from today, at
the end of which they would file a status report before this
Court.
Put up on receipt of the status report.”
25) It is clear that in both the status report(s) as well as in
the affidavit filed in W.P. (Crl.) No. 115/2007, the CBI prayed
for entrusting the investigation relating to Tulsiram Prajapati
on the ground that his encounter was a part of the very
same offence in the first FIR which CBI was investigating. It
is not in dispute that this Court, after entrusting the
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investigation to the CBI by order dated 12.01.2010 was
monitoring the said investigation in W.P. (Crl.) No. 6 of 2007.
Even in the said writ petition, the CBI filed status report(s)
contending that Tulsiram Prajapati’s killing was a part of the
very same conspiracy and series of the very same
transactions in which Sohrabuddin and Kausarbi were
abducted and killed. The following averments in the affidavit
dated 19.08.2010 in W.P. (Crl.) No. 115 of 2007 made by the
CBI are relevant which are as under:-
“47. During the investigation of Sohrabuddin and Kausarbi
matter it has emerged that there are clear circumstances
indicating that the encounter of Tulsiram Prajapati on
28.12.2006 was done in order to eliminate him as he was
the key witness in the criminal conspiracy of the abduction
and killing of Sohrabuddin and Kausarbi by the powerful
and influential accused persons. The CBI investigation has
been conducted into this aspect in view of the following
observations of the Hon’ble Supreme Court in its order
dated 12.01.2010.
48. The investigation has disclosed that Tulsiram
Prajapati @ Praful @ Sameer @ Babloo s/o Gangaram
Prajapati, r/o Shantinagar PS Neel Ganga District Ujjain,
M.P. was a close associate of Sohrabuddin. Both hailed
from same Ujjain district of MP and knew each other since
the days Sohrabuddin was lodged in Sabarmati Jail in the
Arms recovery case. Tulsiram was working with him as his
sharp shooter….
51. The investigation has further revealed that Tulsiram
was picked up by the Police of Gujarat and Rajasthan to
trace Sohrabuddin about 20 days prior to the encounter of
Sohrabuddin. Both Sohrabuddin and his wife Kausarbi
were abducted on the information of Tulsiram. He was
22Page 23
promised by accused Shri D.G. Vanzara (A-1) and accused
Shri Abhay Chudasama (A-15) that no physical harm would
be caused to Sohrabuddin because Sohrabuddin was their
old associate. Further, Tulsiram was shown to have been
arrested on 29.11.2005 at Bhilwada (Rajasthan) by the
Rajasthan police i.e., after the fake encounter of
Sohrabuddin on 26.11.2005.
52. The investigation has further revealed that after the
fake encounter of Sohrabuddin and murder of Kausarbi
said deceased Tulsiram Prajapati knew that his death was
imminent at the hands of the Gujarat Police in connivance
with the Rajasthan Police as he was the only surviving
prime witness to the abduction and killing of Kausarbi and
Sohrabuddin. The grave apprehensions of Tulsiram
Prajapati were expressed by him in his applications filed in
the court of ACJM City (North) No. 1, Udaipur, on
27.01.2006 and 02.02.2006 and his letters addressed to
the National Human Rights Commission (NHRC) dated
18.05.2006 and to the Collector, Udaipur dated
11.05.2006. In addition, he made verbal/oral prayer before
the Hon’ble Principal Judge, Ahmedabad on 28.11.2006.
Out of sheer desperation, he made the fervent appeal
before the Hon’ble Judge that he would be alleged to have
shown as escaped from the police escort party custody and
subsequently killed in a fake encounter. True to his
apprehension, the premonition came true as the events
such as his alleged escape from the escape custody on
26.12.2006 registered with Ahmedabad Railway PS vide CR
No. 294/2006 on 27.12.2006 and alleged fake encounter
on 28.12.2006 registered with Ambaji Police Station vide
CR No. 115/2006 dated 28.12.2006.
54. Shri V.K. Goda, who had demitted the office of IG of
Police, Udaipur on 31.10.2005 on superannuation has
stated during his examination by the CBI that he had
received a letter in the month of November 2005
addressed to him in his named cover by the family
members of Tulsiram Prajapati which was duly forwarded
by the then MLA. The letter could not be made available to
the CBI. As per the statement of Shri Godila, the contents
of the letter revealed that the family members of Tulsiram
Prajapati apprehended that Shri Tulsiram Prajapati was
illegally detained by Police and was in their illegal custody.
The letter also revealed that the state of despair of family
members of Shri Tulsiram Prajapati as they apprehended
23Page 24
death for which they immediately wanted action by the
then IG of Police, Udaipur through the people
representative. This is an additional corroboration that
Tulsiram Prajapati was in the Police Custody just prior to
the encounter of Sohrabuddin. This seen in conjunction
with other evidence indicates that Tulsiram Prajapati was
the person who revealed the location of Sohrabuddin to the
accused police officers of Rajasthan and Gujarat.
55. The investigation has further disclosed that while
lodged in Udaipur Jail, in addition to the above mentioned
prayers made by Tulsiram to the Human Rights
Commission, different courts, he explained the true fact
behind the fake encounter of Sohrabuddin to his jail inmate
friends. The police kept the telephone number being used
by some of the criminals inside the jail and outside the jail
under interception and allegedly had received the
information that Tulsiram was trying to run away from the
custody. Both accused Shri. Dinesh MN (A-3) and IG,
Udaipur Shri Rajeev Dasot sent letters for permission to
intercept the telephone numbers alleged having such
information. Thereafter, when Tulsiram Prajapati was
brought to Ahmedabad on 28.11.2006 along with coaccused Mohd. Azam in connection with Case No.
1124/2004 (Popular Builders Firing Case) in JM Court No.
13, Ahmedabad, around 50 police commandoes were
detailed for the escort party. On both these occasions, the
mother, wife and daughter of Azam Khan accompanied
them from Udaipur to Ahmedabad and back. Later on the
police decided to kill Tulsiram and whereas on subsequent
hearing fixed for 26.12.2006, Shri Tulsiram Prajapati was
deliberately sent alone on 25.12.2006. His usual
companion/co-accused Azam Khan was detained in a
scooter theft case. Interestingly, the above scooter theft
case registered in Ambamata PS of Udaipur (Rajasthan)
vide Case No. 95/2004 was already detected, vehicle
recovered and handed over to the complainant in 2004
itself. Thus, foisting a case against Mohd. Azam and
sending Tulsiram Prajapati alone were to facilitate the
murder of Tulsiram Prajapati. It has also come into
evidence that this time before leaving Udaipur Jail on
25.12.2006, Tulsiram had expressed apprehension of his
being killed in an encounter. Contrary to the earlier two
occasions, this time only four police personnel were sent
from the jail as his escort. On the way back from
Ahmednagar to Udaipur, he was shown having run away
24Page 25
from the custody on the night intervening 26/27.12.2006.
Next day, he was killed in an alleged encounter.
56. The investigation disclosed that the Udaipur Police
had sent letter No. 1120 dated 27.12.2006 to SP
Banaskantha, alleging that the call details of Tulsiram show
that he is hiding somewhere in Banaskantha. As per the
documents received by the CBI from the office of IG,
Udaipur, this letter was sent through fax at around 2332
hours on 27.12.2006. As per the telephone call details
available, the phone was not used after the evening of
26.12.2006 so there was no reason for Udaipur Police to
have information that Tulsiram was hiding somewhere in
Banaskantha. This letter was nothing but an attempt to
provide the Banaskantha police an opportunity to stagemanage the encounter of Tulsiram Prajapati in their
district. Further, the available call details show that on
27.12.2006 accused Shri Dinesh M.N. (A-3) was constantly
in touch with other accused Rajkumar over telephone till
confirmation of this fax.
57. In the investigation conducted by the CBI, it has
clearly emerged that killing of Tulsiram Prajapati was an
integral part of the criminal conspiracy hatched by the
accused arising out the same transaction. After the
abduction and fake encounter of Sohrabuddin and
Kausarbi, the Supreme Court was seized of the matter,
which had directed the State of Gujarat to investigate in
detail the above episode. During such inquiry ordered by
Gujarat Government in obedience to the Hon’ble Supreme
Court, it emerged that police officials of ATS, Ahmedabad
were involved in the abduction and killing of Sohrabuddin
and Kausarbi…..
59. When it became clear and evident that…..
(i) That Tulsiram Prajapati was the sole surviving
witness to the abduction of Sohrabuddin and his wife
Kausarbi.
(ii) That the Mobile Call Detail Records pertaining to the
case contained important piece of evidence not only
against accused Shri Amit Shah (A-16), Minister of State
(MoS), Government of Gujarat, but other police officers of
Gujarat and Rajasthan, who worked at his behest to cover
up the fake encounter that killed Tulsiram Prajapati on
28.12.2006.
25Page 26
60. The analysis of Mobile Call Details for the week in
which the planning and execution of Tulsiram Prajapati’s
encounter took place, reflects furry of call exchanged by
accused Shri Amit Shah (A-16), MoS, accused Shri D.G.
Vanzara (A-1), DIG Border Range, accused Shri Rajkumar
Pandian (A-2), SP, ATS, Shri Vipul Agarwal, SP,
Banaskantha and accused Shri Dinesh MN (A-3), SP,
Udaipur, Rajasthan, suggesting a sinister plan to eliminate
the sole witness in the state-executed Sohrabuddin
encounter.
67. Thus, in view of the aforesaid provision, it is
eminently required in the interest of justice that the
Tulsiram Prajapati fake encounter case be investigated and
tried along with Sohrabuddin fake encounter case as the
evidence procured so far shows that Tulsiram Prajapati’s
encounter took place as he was the prime witness to the
Sohrabuddin’s abduction. As such both these cold blooded
murders are inter-connected, they ought not to be tried
separately as it may give rise to conflicting findings, raise
issues of issue estoppels and/or res judicata and end up
derailing or frustrating the interest of justice.”
26) As rightly pointed out, this was the stand of the CBI
prior to passing of the order in the decision dated
08.04.2011 in W.P. (Crl.) No. 115 of 2007. As a matter of
fact, based on the above assertion of the CBI, this Court, in
the above matter, entrusted the investigation of Tulsiram
Prajapati’s killing also to the CBI. It is also not in dispute that
the above extracted status reports were part of record of
proceedings in W.P. (Crl.) No. 115 of 2007.
26Page 27
27) Mr. Mahesh Jethamalani, learned senior counsel for the
petitioner-Amit Shah also brought to our notice that he was
arrested in the first FIR and chargesheet dated 23.07.2010
and was further interrogated even on the question of alleged
killing of Tulsiram Prajapati. It is also brought to our notice
that when the petitioner-Amit Shah filed regular bail
application, the CBI opposed the same contending that the
alleged killing of Tulsiram Prajapati as a part of the same
series of acts, viz., killing of Sohrabuddin and Kausarbi. The
following objections were taken by the CBI while considering
the bail application which are as under:-
“The applicant took several steps by systematically
eliminating evidence of the murder of Sohrabuddin. One
witness after the other were killed either surreptitiously
(Kausarbi) or another stage managed encounter (Tulsiram
Prajapati)
38. Learned senior counsel Mr. Tulsi submitted that the
case of the prosecution is that the applicant is part and
parcel of the larger conspiracy in the killing of
Sohrabuddin, his wife and Tulsiram Prajapati and also the
conspiracy with regard to extortion of money.”
All the above assertions by the CBI support the stand of the
petitioner. It is also relevant to note the stand taken by the
CBI and reliance placed on the same by this Court in the
order dated 08.04.2011 in W.P. (Crl.) No. 115 of 2007, i.e.,
27Page 28
Narmada Bai (supra). The relevant excerpts are quoted
verbatim hereunder:-
“2(g) It is the further case of the petitioner that the
deceased being a key eye witness to the murder of
Sohrabuddin and his wife Kausarbi, the team of Mr. D.G.
Vanzara and others planned to do away with him to avoid
his interrogation by Ms. Geeta Johri, Inspector General of
Police. Hence, the petitioner has preferred this petition
before this Court praying for direction to CBI to register an
FIR and investigate the case.
(5) Stand of the CBI – respondent No.21:
(a) The investigation conducted in R.C. No. 4(S)/2010,
Special Crime Branch, Mumbai, as per the directions of this
Court in its order dated 12.01.2010, vide Writ Petition (Crl.)
No. 6 of 2007 revealed that the alleged fake encounter of
Tulsiram Prajapati on 28.12.2006 was done in order to
eliminate him as he was the key witness in the criminal
conspiracy of the abduction and killing of Sohrabuddin and
Kausarbi by the powerful and the influential accused
persons…..
(c) The murder of Tulsiram Prajapati took place on
28.12.2006, case was registered on 28.12.2006 and
Gujarat CID commenced investigation on 22.03.2007.
However, even after a lapse of 3 years, no action was
taken against any of the accused. As directed by this
Court, only on the investigation of Tulsiram Prajapati’s
case, the “larger conspiracy” would be established and the
mandate and tasks assigned by this Court to the CBI would
be accomplished both in letter and spirit towards the goal
of a fair trial, upholding the rule of law. If Tulsiram
Prajapati’s fake encounter case is not transferred to the
CBI for investigation, it may lead to issue-estoppel or res
judicata against prosecution.
13. As pointed out by the learned counsel for the petitioner
and the CBI, the said judgment records that there is strong
suspicion that the ‘third person’ picked up with
Sohrabuddin was Tulsiram Prajapati.
14) Pursuant to the said direction, the CBI investigated
the cause of death of Sohrabuddin and his wife Kausarbi.
The CBI, in their counter affidavit, has specifically stated
that as per their investigation Tulsiram Prajapati was a key
witness in the murder of Sohrabuddin and he was the ‘third
28Page 29
person’ who accompanied Sohrabuddin from Hyderabad
and killing of Tulsiram Prajapati was a part of the same
conspiracy. It was further stated that all the records qua
Tulsiram Prajapati’s case were crucial to unearth the
“larger conspiracy” regarding the Sohrabuddin’s case
which despite being sought were not given by the State of
Gujarat.
15 vi) The CBI submitted two reports- Status Report No.1
on 30.07.2010 and a week thereafter, they filed the
charge-sheet. In pursuance of the charge-sheet, accused
No.16-Amit Shah was arrested on 25.07.2010 and released
on bail by the High Court of Gujarat on 29.10.2010. The
order releasing him on bail is subject matter of challenge in
SLP (Crl.) No. 9003 of 2010. The Status Report No.1, filed
by the CBI before the Bench on 30.07.2010 informed the
Court that Tulsiram Prajapati was abducted along with
Sohrabuddin and Kausarbi and he was handed over to the
Rajasthan Police.
17. Inasmuch as the present writ petition is having a
bearing on the decision of the writ petiton filed by
Rubabbuddin Sheikh and also the claim of the petitioner,
the observations made therein, particularly, strong
suspicion about the ‘third person’ accompanied
Sohrabuddin, it is but proper to advert factual details,
discussion and ultimate conclusion of this Court in
Rubabbuddin Sheikh’s case.
In Writ Petition No. 6 of 2007, Rubabbuddin Sheikh prayed
for direction for investigation by the CBI into the alleged
abduction and fake encounter of his brother Sohrabuddin
by the Gujarat Police Authorities and also prayed for
registration of an offence and investigation by the CBI into
the alleged encounter of one Tulsiram Prajapati, a close
associate of Sohrabuddin, who was allegedly used to locate
and abduct Sohrabuddin and his wife Kasurbi, and was
thus a material witness against the police personnel.
19) It is clear that the above judgment records that there
was a strong suspicion that the ‘third person’ picked up
with Sohrabuddin was Tulsiram Prajapati. It was also
observed that the call records of Tulsiram were not
properly analyzed and there was no justification for the
then Investigation Officer – Ms. Geeta Johri to have walked
out of the investigation pertaining to Tulsiram Prajapati.
The Court had also directed the CBI to unearth “larger
conspiracy” regarding the Sohrabuddin’s murder. In such
circumstances, we are of the view that those observations
29Page 30
and directions cannot lightly be taken note of and it is the
duty of the CBI to go into all the details as directed by the
Court.
23) If we analyze the allegations of the State and other
respondents with reference to the materials placed with
the stand taken by the CBI, it would be difficult to accept it
in its entirety. It is the definite case of the CBI that the
abduction of Sohrabuddin and Kausarbi and their
subsequent murders as well as the murder of Tulsiram
Prajapati are one series of acts, so connected together as
to form the same transaction under Section 220 of the
Cr.P.C. As rightly pointed out by the CBI, if two parts of the
same transaction are investigated and prosecuted by
different agencies, it may cause failure of justice not only
in one case but in other trial as well. It is further seen that
there is substantial material already on record which
makes it probable that the prime motive of elimination of
Tulsiram Prajapati was that he was a witness to abduction
of Sohrabuddin and Kausarbi.
37)…..In view of various circumstances highlighted and in
the light of the involvement of police officials of the State
of Gujarat and police officers of two other States, i.e.
Andhra Pradesh and Rajasthan, it would not be desirable to
allow the Gujarat State Police to continue with the
investigation, accordingly, to meet the ends of justice and
in the public interest, we feel that the CBI should be
directed to take the investigation.
28) The findings rendered by us in Narmada Bai (supra)
clearly show the acceptance of the contentions raised by the
CBI that killing of two individuals and killing of third person,
viz., Tulsiram Prajapati were part of the very same
conspiracy and in the same series of acts so connected
together that they will have to be tried in one trial under
Section 220 of the Code.
30Page 31
29) After the investigation of the second FIR, the CBI filed
chargesheet dated 04.09.2012 wherein, among others,
petitioner-Amit Shah was also arrayed as one of the accused.
By pointing out various averments/assertions in the
chargesheet dated 04.09.2012, learned senior counsel for
the petitioner pointed out that the CBI has merely conducted
further investigation and it should be considered
“supplementary chargesheet in the first FIR.” The following
stand of the CBI in the chargesheet dated 04.09.2012 are
also relevant which are as under:-
“2….The investigation established that it was in
furtherance of a criminal conspiracy by the principal
accused persons that Sohrabuddin was abducted and then
murdered by showing it off as an encounter and further for
the purpose of screening themselves from the legal
consequences of their crime, the accused caused the
disappearance of material witnesses to the pivotal fact of
abduction of Sohrabuddin by murdering them, first his wife,
Kauserbi and then Tulsiram Prajapati who was
accompanying Sohrabuddin and his wife Kausarbi at the
time they were abducted, and, who had in fact facilitated
his abduction at the behest of accused D.G. Vanzara (A-2)
…..
4. Investigation of RC 4(S)/2010/SCB/Mumbai disclosed
that the third person who was abducted along with
Sohrabuddin and Kausarbi was Tulsiram Prajapati. The
investigation further disclosed that he was a material
witness/eye-witness to the abduction of Sohrabuddin and
his wife and the same was within the knowledge of
accused Amit Shah (A-1), D.G. Vanzara (A-2), S. Pandian
Rajkumar (A-3) and Dinesh M.N. (A-4) and others.
31Page 32
6.4….In the meantime, in accordance with his clandestine
agreement with Gujarat Police, Tulsiram Prajapati informed
them in advance about the plan of Sohrabuddin to travel to
Sangli from Hyderabad.
6.8 In pursuance of the criminal conspiracy to screen
themselves from the legal consequences of the crime, the
accused acted in concert with each other to keep Tulsiram
Prajapati, a significant material eye witness to the
abduction of Sohrabuddin and Kausarbi by the accused
policemen of Gujarat police under their continuing control
and beyond the reach of others. Accordingly, Dinesh M.N.
(A-4), the then SP Udaipur, who had also participated in the
murder of Sohrabuddin on 26.11.2005, ensured by
directing Rajasthan Police to detain Tulsiram Prajapati on
the very same day i.e., 26.11.2005 for achieving the
common object of keeping Tulsiram Prajapati under their
control.
6.13 On 08.02.2006, Tulsiram Prajapati was brought from
Central Jail, Udaipur to Ujjain, Madhya Pradesh. When he
met Narmada Bai and Pawan Kumar Prajapati, he told
them that he was under severe stress because he
apprehended that the Gujarat and Rajasthan Police would
kill him in a false encounter. He also confessed to them
that Gujarat Police had used him for tracing and abducting
Sohrabuddin and his wife. He had also expressed his
apprehension that the police would kill him because he was
a witness to the abduction of Sohrabuddin and his wife
Kausarbi.
6.26…..With the object of shielding themselves from the
grave implications of abduction and murder of Sohrabuddin
and his wife Kausarbi, the accused expedited the pace of
their criminal conspiracy as aforesaid to abduct and
murder Tulsiram Prajapati as soon as possible.
6.34…..during the relevant period to show that they were
acting in concert with each other in furtherance of the
criminal conspiracy as aforesaid to murder Tulsiram
Prajapati who was no longer under their control and further
with the efforts being made by Inspector V.L. Solanki to
examine him and record his statement with regard to the
abduction of Sohrabuddin were anxious to expedite the
criminal conspiracy towards its culmination point.”
32Page 33
6.51….This establishes the fact that the country made
weapon was planted to cover up the murder of Tulsiram
Prajapati in pursuance of a criminal conspiracy spanning
more than a year and to show it as the result of a
shootout/an encounter.
6.54…..for participating in the criminal conspiracy as
aforesaid and taking it towards its culmination point by
murdering Tulsiram Prajapati…..
6.62…..by so doing had intentionally provided the requisite
time needed by the co-accused to take the necessary
efforts to cause disappearance of human witness Tulsiram
Prajapati to their crime of abduction of Sohrabuddin and
his wife precedent to their murders by murdering him as
well and thereby had facilitated the criminal conspiracy
towards its culmination point…..
6.69…..Besides this, accused Geetha Johri (A-18), in
furtherance of a criminal conspiracy as aforesaid made all
attempts to delink Tulsiram Prajapati case from the
Sohrabuddin fake encounter case to establish that the third
person who traveled with Sohrabuddin and Kausarbi in the
bus in the night of 22/23.11.2005 and was abducted was
somebody else and not Tulsiram Prajapati himself. She
projected that the third person who was abducted along
with Sohrabuddin and his wife Kauserbi was one
Kalimuddin of Hyderabad in spite of the fact that she had
knowledge that the third person was Tulsiram Prajapati as
made know to her by her Investigating Officer V.L.
Solanki…..”
30) The above details mentioned in the chargesheet dated
04.09.2012 clearly show that what the CBI has conducted is
mere ‘further investigation’ and the alleged killing of
Tulsiram Prajapati was in continuance of and an inseparable
part of the conspiracy which commenced in November, 2005
by abduction of Sohrabuddin, Kausarbi and Tulsiram
33Page 34
Prajapati and which culminated into the final stage of alleged
killing of Tulsiram Prajapati who was kept under the control
of accused police officers since he was a material eyewitness like Kausarbi. To put it straight, apart from the
consistent stand of the CBI, the chargesheet dated
04.09.2012 itself is conclusive to show that the said
chargesheet, in law and on facts, deserves to be treated as
‘supplementary chargesheet in the first FIR’.
Legal aspects as to permissibility/impermissibility of
second FIR :
31) Now, let us consider the legal aspects raised by the
petitioner-Amit Shah as well as the CBI. The factual details
which we have discussed in the earlier paragraphs show that
right from the inception of entrustment of investigation to
the CBI by order dated 12.01.2010 till filing of the charge
sheet dated 04.09.2012, this Court has also treated the
alleged fake encounter of Tulsiram Prajapati to be an
outcome of one single conspiracy alleged to have been
hatched in November, 2005 which ultimately culminated in
2006. In such circumstances, the filing of the second FIR
34Page 35
and a fresh charge sheet for the same is contrary to the
provisions of the Code suggesting that the petitioner was not
being investigated, prosecuted and tried ‘in accordance with
law’ .
32) This Court has consistently laid down the law on the
issue interpreting the Code, that a second FIR in respect of
an offence or different offences committed in the course of
the same transaction is not only impermissible but it violates
Article 21 of the Constitution. In T.T. Anthony (supra), this
Court has categorically held that registration of second FIR
(which is not a cross case) is violative of Article 21 of the
Constitution. The following conclusion in paragraph Nos. 19,
20 and 27 of that judgment are relevant which read as
under:
“19. The scheme of CrPC is that an officer in charge of a
police station has to commence investigation as provided
in Section 156 or 157 CrPC on the basis of entry of the first
information report, on coming to know of the commission
of a cognizable offence. On completion of investigation and
on the basis of the evidence collected, he has to form an
opinion under Section 169 or 170 CrPC, as the case may
be, and forward his report to the Magistrate concerned
under Section 173(2) CrPC. However, even after filing such
a report, if he comes into possession of further information
or material, he need not register a fresh FIR; he is
35Page 36
empowered to make further investigation, normally with
the leave of the court, and where during further
investigation he collects further evidence, oral or
documentary, he is obliged to forward the same with one
or more further reports; this is the import of sub-section (8)
of Section 173 CrPC.
20. From the above discussion it follows that under the
scheme of the provisions of Sections 154, 155, 156, 157,
162, 169, 170 and 173 CrPC only the earliest or the first
information in regard to the commission of a cognizable
offence satisfies the requirements of Section 154 CrPC.
Thus there can be no second FIR and consequently there
can be no fresh investigation on receipt of every
subsequent information in respect of the same cognizable
offence or the same occurrence or incident giving rise to
one or more cognizable offences. On receipt of information
about a cognizable offence or an incident giving rise to a
cognizable offence or offences and on entering the FIR in
the station house diary, the officer in charge of a police
station has to investigate not merely the cognizable
offence reported in the FIR but also other connected
offences found to have been committed in the course of
the same transaction or the same occurrence and file one
or more reports as provided in Section 173 CrPC.
27. A just balance between the fundamental rights of the
citizens under Articles 19 and 21 of the Constitution and
the expansive power of the police to investigate a
cognizable offence has to be struck by the court. There
cannot be any controversy that sub-section (8) of Section
173 CrPC empowers the police to make further
investigation, obtain further evidence (both oral and
documentary) and forward a further report or reports to
the Magistrate. In Narang case it was, however, observed
that it would be appropriate to conduct further
investigation with the permission of the court. However,
the sweeping power of investigation does not warrant
subjecting a citizen each time to fresh investigation by the
police in respect of the same incident, giving rise to one or
more cognizable offences, consequent upon filing of
successive FIRs whether before or after filing the final
report under Section 173(2) CrPC. It would clearly be
beyond the purview of Sections 154 and 156 CrPC, nay, a
case of abuse of the statutory power of investigation in a
36Page 37
given case. In our view a case of fresh investigation based
on the second or successive FIRs, not being a countercase, filed in connection with the same or connected
cognizable offence alleged to have been committed in the
course of the same transaction and in respect of which
pursuant to the first FIR either investigation is under way
or final report under Section 173(2) has been forwarded to
the Magistrate, may be a fit case for exercise of power
under Section 482 CrPC or under Articles 226/227 of the
Constitution.”
The above referred declaration of law by this Court has
never been diluted in any subsequent judicial
pronouncements even while carving out exceptions.
33) Mr. Rawal, learned ASG, by referring T.T. Anthony
(supra) submitted that the said principles are not applicable
and relevant to the facts and circumstances of this case as
the said judgment laid down the ratio that there cannot be
two FIRs relating to the same offence or occurrence.
Learned ASG further pointed out that in the present case,
there are two distinct incidents/occurrences, inasmuch as
one being the conspiracy relating to the murder of
Sohrabuddin with the help of Tulsiram Prajapati and the
other being the conspiracy to murder Tulsiram Prajapati - a
potential witness to the earlier conspiracy to murder
37Page 38
Sohrabuddin. We are unable to accept the claim of the
learned ASG. As a matter of fact, the aforesaid proposition
of law making registration of fresh FIR impermissible and
violative of Article 21 of the Constitution is reiterated, reaffirmed in the following subsequent decisions of this Court:
1. Upkar Singh vs. Ved Prakash (2004) 13 SCC 292
2. Babubhai vs. State of Gujarat & Ors. (2010) 12
SCC 254
3. Chirra Shivraj vs. State of A.P. AIR 2011 SC 604
4. C. Muniappan vs. State of Tamil Nadu (2010) 9
SCC 567.
In C. Muniappan (supra), this Court explained
“consequence test”, i.e., if an offence forming part of the
second FIR arises as a consequence of the offence alleged
in the first FIR then offences covered by both the FIRs are
the same and, accordingly, the second FIR will be
impermissible in law. In other words, the offences
covered in both the FIRs shall have to be treated as a part
of the first FIR. In the case on hand, in view of the
principles laid down in the above referred decisions, in
38Page 39
particular, C. Muniappan (supra) as well as in Chirra
Shivraj (supra), apply with full force since according to
the CBI itself it is the case where:-
(i) The larger conspiracy allegedly commenced in
November, 2005 and culminated into the murder
of Tulsiram Prajapati in December, 2006 in a fake
encounter;
(ii) The alleged fake encounter of Tulsiram Prajapati
was a consequence of earlier false encounter of
Sohrabuddin and Kausarbi since Tulsiram Prajapati
was an eye witness to the abduction and
consequent murders of Sohrabuddin and Kausarbi;
and
(iii) Tulsiram Prajapati was allegedly kept under the
control of accused police officers, as a part of the
same conspiracy, till the time he was allegedly
killed in a fake encounter.
In view of the factual situation as projected by the CBI itself,
the ratio laid down by this Court in C. Muniappan (supra),
viz., merely because two separate complaints had been
39Page 40
lodged did not mean that they could not be clubbed together
and one chargesheet could not be filed [See T.T. Anthony
(supra)].
34) In view of the consistent stand taken by the CBI, at this
juncture, CBI may not be permitted to adopt a contradictory
stand.
35) Learned counsel for the petitioner has placed reliance
on the following decisions of this Court which explained
“same transaction”:
(i) Babulal vs. Emperor , AIR 1938 PC 130
(ii) S. Swamirathnam vs. State of Madras, AIR 1957 SC
340
(iii) State of A.P. vs. Kandimalla Subbaiah & Anr., AIR
1961 SC 1241
(iv) State of A.P. vs. Cheemalapati Ganeswara Rao &
Anr., AIR 1963 SC 1850
36) In Babulal (supra), the Privy Council has held that if
several persons conspire to commit offences, and commit
overt acts in pursuance of the conspiracy (a circumstance
which makes the act of one the act of each and all the
40Page 41
conspirators), these acts are committed in the course of the
same transaction, which embraces the conspiracy and the
acts done under it. The common concert and agreement
which constitute the conspiracy, serve to unify the acts done
in pursuance of it.
37) In Swamirathnam (supra), the following conclusion in
para 7 is relevant:
“7. On behalf of the appellant Abu Bucker it was
contended that there has been misjoinder of charges on
the ground that several conspiracies, distinct from each
other, had been lumped together and tried at one trial.
The Advocate for Swamirathnam, however, did not put
forward this submission. We have examined the charge
carefully and find no ground for accepting the contention
raised. The charge as framed, discloses one single
conspiracy, although spread over several years. There was
only one object of the conspiracy and that was to cheat
members of the public. The fact that in the course of years
others joined the conspiracy or that several incidents of
cheating took place in pursuance of the conspiracy did not
change the conspiracy and did not split up a single
conspiracy into several conspiracies. It was suggested that
although the modus operandi may have been the same,
the several instances of cheating were not part of the
same transaction. Reliance was placed on the cast of
Sharpurji Sorabji v. Emperor, AIR 1936 Bom 154 (A) and on
the cast of Choragudi Venkatadari, In re. ILR 33 Mad 502
(B). These cases are not in point. In the Bombay case, no
charge of conspiracy had been framed and the decision in
the Madras case was given before Section 120-B was
introduced into the Indian Penal Code. In the present case,
the instances of cheating were in pursuance of the
conspiracy and were therefore parts of the same
transaction.”
41Page 42
38) In Kandimalla Subbaiah (supra), this Court held
where the alleged offence have been committed in the
course of the same transaction, the limitation placed by
Section 234(1) cannot operate.
39) In Cheemalapati Ganeswara Rao (supra), while
considering the scope of Section 239 of the old Code
(Section 220 in the new Code), this Court held:
“28. The decision of the Allahabad High Court in T.B.
Mukherji case directly in point and is clearly to the effect
that the different clauses of Section 239 are mutually
exclusive in the sense that it is not possible to combine the
provisions of two or more clauses in any one case and to
try jointly several persons partly by applying the provisions
of one clause and partly by applying those of another or
other clauses. A large number of decisions of the different
High Courts and one of the Privy Council have been
considered in this case. No doubt, as has been rightly
pointed out in this case, separate trial is the normal rule
and joint trial is an exception. But while this principle is
easy to appreciate and follow where one person alone is
the accused and the interaction or intervention of the acts
of more persons than one does not come in, it would where
the same act is committed by several persons, be not only
inconvenient but injudicious to try all the several parsons
separately. This would lead to unnecessary multiplicity of
trials involving avoidable inconvenience to the witnesses
and avoidable expenditure of public time and money. No
corresponding advantage can be gained by the accused
persons by following the procedure of separte trials.
Where, however, several offences are alleged to have been
committed by several accused persons it may be more
reasonable to follow the normal rule of separate trials. But
here, again, if those offences are alleged not to be wholly
unconnected but as forming part of the same transaction
42Page 43
the only consideration that will justify separate trials would
be the embarrassment or difficulty caused to the accused
persons in defending themselves. We entirely agree with
the High Court that joint trial should be founded on some
“principle”. ….
40) Learned ASG placed reliance on the following decisions:
(i) Anju Chaudhary vs. State of U.P. & Anr.,
2012(12) Scale 619
(ii) Babubhai vs. State of Gujarat (2010) 12 SCC 254
(iii) Surender Kaushik & Ors. vs. State of U.P. &
Ors., JT 2013 (3) SC 472
(iv) Nirmal Singh Kahlon vs. State of Punjab (2009) 1
SCC 441
(v) Ram Lal Narang vs. State (Delhi Admn.), (1979)
2 SCC 322
(vi) Upkar Singh vs. Ved Prakash & Ors. (2004) 13
SCC 292
(vii) Kari Choudhary vs. Mst. Sita Devi & Ors. (2002)
1 SCC 714.
41) In Anju Chaudhary (supra) this Court was concerned
with a case in which the second FIR was not connected with
43Page 44
the offence alleged in the first FIR. After carefully analyzing
the same, we are of the view that it has no relevance to the
facts of the present case.
42) In the case of Babubhai (supra), the very same Bench
considered the permissibility of more than one FIR and the
test of sameness. After explaining FIR under Section 154 of
the Code, commencement of the investigation, formation of
opinion under Sections 169 or 170 of the Code, police report
under Section 173 of the Code and statements under Section
162 of the Code, this Court, has held that the Court has to
examine the facts and circumstances giving rise to both the
FIRs and the test of sameness is to applied to find out
whether both the FIRs relate to the same incident in respect
of the same occurrence or are in regard to the incidents
having two or more parts of the same transaction. This
Court further held that if the answer is in affirmative, the
second FIR is liable to be quashed. It was further held that in
case the contrary is proved, where the version in the second
FIR is different and is in respect of the two different
incidents/crimes, the second FIR is permissible. This Court
44Page 45
further explained that in case in respect of the same incident
the accused in the first FIR comes forward with a different
version or counterclaim, investigation on both the FIRs has
to be conducted. It is clear from the decision that if two FIRs
pertain to two different incidents/crimes, second FIR is
permissible. In the light of the factual position in the case on
hand, the ratio in that decision is not helpful to the case of
the CBI.
43) The CBI has also placed reliance on a recent decision of
this Court in Surender Kaushik (supra). A careful perusal
of the facts which arose in the said case would disclose that
three FIRs which formed the subject matter of the said case
were registered by three different complainants. Two of the
FIRs consisted of cross cases inasmuch as the complainant
of the first FIR was accused in the other while the accused in
the first FIR was the complainant in the second FIR. The
third FIR was filed by a third person citing both the
complainants of first two FIRs as accused persons. In view of
the above peculiar facts situation arising in the said case
that the second and third FIRs were not quashed by the High
45Page 46
Court, which decision was upheld by this Court, we are
satisfied that the said decision has no relevance to the facts
of the present case.
44) In the case of Nirmal Singh Kahlon (supra), this Court
has carved out an exception for filing a second FIR. As per
the exception carved out in the said case, the second FIR lies
in a case where the first FIR does not contain any allegations
of criminal conspiracy. On the other hand, in the case on
hand, the first FIR itself discloses an offence of alleged
criminal conspiracy and it was this conspiracy which the CBI
was directed to unearth in the judgment dated 12.01.2010
based on which the CBI filed its first FIR, hence, the CBI
cannot place reliance on this judgment to justify the filing of
the second FIR and a fresh charge sheet.
45) Ram Lal Narang (supra) was cited to be an authority
carving out an exception to the general rule that there
cannot be a second FIR in respect of the same offence. This
Court, in the said decision, held that a second FIR would lie
in an event when pursuant to the investigation in the first
FIR, a larger conspiracy is disclosed, which was not part of
46Page 47
the first FIR. In the case on hand, while entrusting the
investigation of the case relating to the killing of
Sohrabuddin and Kausarbi to the CBI, this Court, by order
dated 12.01.2010, expressed a suspicion that Tulsiram
Prajapati could have been killed because he was an eye
witness to the killings of Sohrabuddin and Kausarbi.
46) The CBI also filed an FIR on 01.02.2010 based upon the
aforesaid judgment dated 12.01.2010 and conducted the
investigation reaching to a conclusion that conspiracy to kill
Sohrabuddin and Kausarbi and conspiracy to kill Tulsiram
Prajapati were part of the same transaction inasmuch as
both these conspiracies were entered into from the very
outset in November, 2005. Based upon its investigation, the
CBI filed a status report (s) before this Court and an affidavit
in Writ Petition (Crl.) No. 115 of 2007 bringing to the notice
of this Court that killing of Tulsiram Prajapati was also a part
of the same transaction and very same conspiracy in which
killings of Sohrabuddin and Kausarbi took place and unless
the CBI is entrusted with the investigation of Tulsiram case,
it will not be able to unearth the larger conspiracy covered in
47Page 48
the first FIR. The fact that even as per the CBI, the scope of
conspiracy included alleged killing of Sohrabuddin and
Kausarbi and alleged offence of killing of Tulsiram Prajapati
and the same is unequivocally established by the order
passed by this Court on 12.08.2010 in Writ Petition (Crl.) No.
6 of 2007 which is fortified by the status report dated
11.11.2011 filed by the CBI has already been extracted in
paragraphs supra.
47) In the light of the factual details, since the entire larger
conspiracy is covered in the first FIR dated 01.02.2010 and
in the investigation of the said FIR, the CBI, after
investigating Tulsiram Prajapati’s encounter recorded a
finding in supplementary charge sheet dated 22.10.2010
filed in the killings of Sohrabuddin and Kausarbi case that
the said encounter was a fake one, we are satisfied that the
decision in Ramlal Narang (supra) would not apply to the
facts of the case on hand. Even otherwise, as pointed out by
learned senior counsel for the petitioner, in Ramlal Narang
(supra), the chargesheet filed pursuant to the first FIR was
48Page 49
withdrawn which was a fact which weighed with this Court
while delivering the judgment in the second case.
48) Upkar Singh (supra) also carves out a second
exception to the rule prohibiting lodging of second FIR for
the same offence or different offences committed in the
course of the transaction disclosed in the first FIR. The only
exception to the law declared in T.T. Anthony (supra),
which is carved out in Upkar Singh (supra) is to the effect
that when the second FIR consists of alleged offences which
are in the nature of the cross case/cross complaint or a
counter complaint, such cross complaint would not be
permitted as second FIR. In the case on hand, it is not the
case of the CBI that the FIR in Tulsiram Prajapati’s case is a
cross FIR or a counter complaint to the FIR filed in
Sohrabuddin and Kausarbi’s case being FIR dated
01.02.2010.
49) The ratio laid down in Kari Choudhary’s case (supra)
is heavily relied on by learned ASG appearing for the CBI. In
that decision, it was held that when there are two rival
versions in respect of the same episode, they would normally
49Page 50
take the shape of two different FIRs and investigation can be
carried on under both of them by the same investigating
agency. While there is no quarrel as to the above
proposition, after carefully considering the factual position,
we are of the view that the said decision is not helpful to the
case on hand.
Maintainability of writ petition under Article 32:
50) Regarding the maintainability, namely, filing a writ
petition under Article 32 of the Constitution of India, learned
ASG submitted that it is only on complete examination and
appreciation of facts, materials and evidence that it can be
decided as to whether these distinct conspiracies form part
of the same transaction in view of the law laid down by this
Court. He further pointed out that the CBI which is the
investigating agency, after a full fledged investigation, came
to a conclusion that the conspiracy to eliminate Tulsiram
Prajapati was a distinct and separate offence, accordingly,
such disputed questions of fact are not and ought not to be
decided in a writ petition under Article 32. He also pointed
out that apart from the fact that there are sufficient
50Page 51
remedies to raise such a plea under the Code before a court
of competent jurisdiction, such disputed questions of fact
can only be adjudicated after carefully examining and
appreciating the evidence led in. It is also pointed out that
there is no question of any prejudice suffered on account of
prayer of the petitioner since if the offences are distinct and
separate which is so emerging from the present case, there
can neither be joint trial nor could the charge sheet filed in
the present case be treated as supplementary charge sheet.
As a concluding argument, Mr. Rawal, learned ASG
submitted that this Court in exercise of its jurisdiction under
Article 32 may not like to adjudicate such disputed questions
of fact which require evidence to be led and its appreciation.
51) As against this, Mr. Mahesh Jethmalani, learned senior
counsel for the petitioner submitted that the CBI is not faced
with any prejudice which is to be caused to it, if the relief as
prayed for by the petitioner is granted. Admittedly, the
petitioner is not praying for quashing of the charge sheet
dated 04.09.2012. During the course of argument, when
this Court specifically put a question to learned ASG
51Page 52
appearing for the CBI as to what prejudice would be caused
to the CBI if instead of treating the charge sheet dated
04.09.2012 to be fresh and independent charge sheet, the
same will be treated as a supplementary charge sheet in the
first charge sheet, there was no definite answer as to what
prejudice would be caused to the CBI. For the sake of
repetition, it is relevant to mention that in our order dated
08.04.2011 in Narmada Bai (supra), while disposing of the
said writ petition, this Court directed the CBI to take up the
investigation as prayed accepting their contention that
killing of Tulsiram Prajapati is a part of the same series of
acts in which Sohrabuddin and Kausarbi were killed and,
therefore, Tulsiram Prajapati encounter should also be
investigated by the CBI. Accepting the above assertion of
the CBI, this Court directed to complete the investigation
within six months.
Summary:
52) a) This Court accepting the plea of the CBI in
Narmada Bai (supra) that killing of Tulsiram Prajapati is
52Page 53
part of the same series of cognizable offence forming part of
the first FIR directed the CBI to “take over” the investigation
and did not grant the relief prayed for i.e., registration of a
fresh FIR. Accordingly, filing of a fresh FIR by the CBI is
contrary to various decisions of this Court.
b) The various provisions of the Code of Criminal
Procedure clearly show that an officer-in-charge of a police
station has to commence investigation as provided in
Section 156 or 157 of the Code on the basis of entry of the
First Information Report, on coming to know of the
commission of cognizable offence. On completion of
investigation and on the basis of evidence collected,
Investigating Officer has to form an opinion under Section
169 or 170 of the Code and forward his report to the
concerned Magistrate under Section 173(2) of the Code.
c) Even after filing of such a report, if he comes into
possession of further information or material, there is no
need to register a fresh FIR, he is empowered to make
further investigation normally with the leave of the Court
and where during further investigation, he collects further
53Page 54
evidence, oral or documentary, he is obliged to forward the
same with one or more further reports which is evident from
sub-section (8) of Section 173 of the Code. Under the
scheme of the provisions of Sections 154, 155, 156, 157,
162, 169, 170 and 173 of the Code, only the earliest or the
first information in regard to the commission of a cognizable
offence satisfies the requirements of Section 154 of the
Code. Thus, there can be no second FIR and, consequently,
there can be no fresh investigation on receipt of every
subsequent information in respect of the same cognizable
offence or the same occurrence or incident giving rise to one
or more cognizable offences.
d) Further, on receipt of information about a cognizable
offence or an incident giving rise to a cognizable offence or
offences and on entering FIR in the Station House Diary, the
officer-in-charge of the police station has to investigate not
merely the cognizable offence reported in the FIR but also
other connected offences found to have been committed in
the course of the same transaction or the same occurrence
and file one or more reports as provided in Section 173 of
54Page 55
the Code. Sub-section (8) of Section 173 of the Code
empowers the police to make further investigation, obtain
further evidence (both oral and documentary) and forward a
further report (s) to the Magistrate. A case of fresh
investigation based on the second or successive FIRs not
being a counter case, filed in connection with the same or
connected cognizable offence alleged to have been
committed in the course of the same transaction and in
respect of which pursuant to the first FIR either investigation
is underway or final report under Section 173(2) has been
forwarded to the Magistrate, is liable to be interfered with by
the High Court by exercise of power under Section 482 of the
Code or under Articles 226/227 of the Constitution.
e) First Information Report is a report which gives first
information with regard to any offence. There cannot be
second FIR in respect of the same offence/event because
whenever any further information is received by the
investigating agency, it is always in furtherance of the first
FIR.
55Page 56
f) In the case on hand, as explained in the earlier paras, in
our opinion, the second FIR was nothing but a consequence
of the event which had taken place on 25/26.11.2005. We
have already concluded that this Court having reposed faith
in the CBI accepted their contention that Tulsiram Prajapati
encounter is a part of the same chain of events in which
Sohrabuddin and Kausarbi were killed and directed the CBI
to “take up” the investigation.
g) For vivid understanding, let us consider a situation in
which Mr. ‘A’ having killed ‘B’ with the aid of ‘C’, informs the
police that unknown persons killed ‘B’. During investigation,
it revealed that ‘A’ was the real culprit and ‘D’ abetted ‘A’ to
commit the murder. As a result, the police officer files the
charge sheet under Section 173(2) of the Code with the
Magistrate. Although, in due course, it was discovered
through further investigation that the person who abetted
Mr. ‘A’ was ‘C’ and not ‘D’ as mentioned in the charge sheet
filed under Section 173 of the Code. In such a scenario,
uncovering of the later fact that ‘C’ is the real abettor will
not demand a second FIR rather a supplementary charge
56Page 57
sheet under section 173(8) of the Code will serve the
purpose.
h) Likewise, in the case on hand, initially the CBI took a
stand that the third person accompanying Sohrabbuddin and
Kausarbi was Kalimuddin. However, with the aid of further
investigation, it unveiled that the third person was Tulsiram
Prajapati. Therefore, only as a result of further investigation,
the CBI has gathered the information that the third person
was Tulsiram Prajapati. Thus a second FIR in the given facts
and circumstances is unwarranted; instead filing of a
supplementary charge sheet in this regard will suffice the
issue.
i) Administering criminal justice is a two-end process,
where guarding the ensured rights of the accused under
Constitution is as imperative as ensuring justice to the
victim. It is definitely a daunting task but equally a
compelling responsibility vested on the court of law to
protect and shield the rights of both. Thus, a just balance
between the fundamental rights of the accused guaranteed
57Page 58
under the Constitution and the expansive power of the police
to investigate a cognizable offence has to be struck by the
court. Accordingly, the sweeping power of investigation does
not warrant subjecting a citizen each time to fresh
investigation by the police in respect of the same incident,
giving rise to one or more cognizable offences. As a
consequence, in our view this is a fit case for quashing the
second F.I.R to meet the ends of justice.
j) The investigating officers are the kingpins in the
criminal justice system. Their reliable investigation is the
leading step towards affirming complete justice to the
victims of the case. Hence they are bestowed with dual
duties i.e. to investigate the matter exhaustively and
subsequently collect reliable evidences to establish the
same.
Conclusion:
53) In the light of the specific stand taken by the CBI before
this Court in the earlier proceedings by way of assertion in
the form of counter affidavit, status reports, etc. we are of
58Page 59
the view that filing of the second FIR and fresh charge sheet
is violative of fundamental rights under Article 14, 20 and 21
of the Constitution since the same relate to alleged offence
in respect of which an FIR had already been filed and the
court has taken cognizance.
This Court categorically
accepted the CBI’s plea that killing of Tulsiram Prajapati is a
part of the same series of cognizable offence forming part of
the first FIR and in spite of the fact that this Court directed
the CBI to “take over” the investigation and did not grant the
relief as prayed, namely, registration of fresh FIR, the
present action of CBI filing fresh FIR is contrary to various
judicial pronouncements which is demonstrated in the earlier
part of our judgment.
54) In view of the above discussion and conclusion, the
second FIR dated 29.04.2011 being RC No.
3(S)/2011/Mumbai filed by the CBI is contrary to the
directions issued in judgment and order dated 08.04.2011 by
this Court in Writ Petition (Criminal) No. 115 of 2009 and
accordingly the same is quashed. As a consequence, the
59Page 60
charge sheet filed on 04.09.2012, in pursuance of the
second FIR, be treated as a supplementary charge sheet in
the first FIR.
It is made clear that we have not gone into the
merits of the claim of both the parties and it is for the trial
Court to decide the same in accordance with law.
Consequently, Writ Petition (Criminal) No. 149 of 2012 is
allowed. Since the said relief is applicable to all the persons
arrayed as accused in the second FIR, no further direction is
required in Writ Petition (Criminal) No. 5 of 2013.
...…………….…………………………J.
(P. SATHASIVAM)
...…....…………………………………J.
(DR. B.S. CHAUHAN)
NEW DELHI;
APRIL 8, 2013.
60Page 61
