REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1765 OF 2011
(ARISING OUT OF S.L.P. (CRL.) NO. 1088 OF 2008)
JAKIA NASIM AHESAN & ANR. -- APPELLANTS
VERSUS
STATE OF GUJARAT & ORS. -- RESPONDENTS
O R D E R
1. Leave granted.
2. This appeal by special leave, arises out of the judgment dated 2nd
November, 2007, delivered by the High Court of Gujarat at
Ahmedabad in Special Criminal Application No. 421 of 2007,
dismissing the writ petition preferred by one of the hapless victims of
the abominable and woeful events which took place in the State of
Gujarat between February, 2002 and May, 2002 after the abhorrent
Godhra incident on 27th February, 2002. By the said petition under
Article 226 of the Constitution of India read with Section 482 of the
Code of Criminal Procedure, 1973 (for short "the Code"), the
appellant had sought for a direction to the Director General of Police,
State of Gujarat, to register her private complaint dated 8th June, 2006
as a First Information Report and direct investigation therein by an
independent agency. By the impugned judgment, the High Court has
come to the conclusion that since a remedy under Section 190 read
with Section 200 of the Code was available to the appellant, the writ
petition was not tenable. The writ petition was accordingly dismissed
by the High Court with the observation that if the appellant had got
certain additional material against some persons accused in her
complaint, it was open to her to approach the investigating agency,
requesting further investigation, or, alternatively she could herself
approach the Court concerned for further investigation in terms of
Section 173(8) of the Code.
3. The appellant lost her husband, a former Member of Parliament, in the
calamitous events which took place on 28th February, 2002, in the
surroundings of Gulberg Society, Ahmedabad, where the appellant
resided along with her family. An FIR relating to the incident was
registered by the Police with Meghaninagar Police Station,
Ahmedabad. After investigation, on the filing of the charge-sheet, the
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case was committed to the Court of Sessions, Ahmedabad. It was the
case of the appellant that subsequently she received certain material
which showed that the incidents which took place during the period
between 27th February, 2002 and 10th May, 2002, were aided,
abetted and conspired by some responsible persons in power, in
connivance with the State Administration, including the Police. The
appellant thus sought registration of another FIR against certain
persons named in the complaint, dated 8th June, 2006, for offences
punishable under Section 302 read with Section 120B as also under
Section 193 read with Sections 114, 186 & 153A, 186, 187 of the
Indian Penal Code, 1860. However, as the police declined to take
cognizance of her complaint, the appellant filed the aforementioned
petition before the High Court. Having failed to convince the High
Court that it was a fit case for investigation by an independent agency,
the appellant-complainant, supported by an NGO, is before us in this
appeal.
4. On 3rd March, 2008 while issuing notice to the Union of India and
State of Gujarat, an Amicus Curiae was appointed to assist the Court.
Vide order dated 27th April, 2009, the Special Investigation Team (for
short "the SIT"), which had been constituted vide order dated 26th
March, 2008 to carry out further investigations in nine cases, subject
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matter of Writ Petition No. 109 of 2003, was directed `to look into',
the complaint submitted by the appellant on 8th June, 2006 to the
Director General of Police, Gujarat. Pursuant to the said direction
Shri A.K. Malhotra, former D.I.G. (C.B.I.) and one of the members of
the SIT, examined a number of witnesses and looked into a large
number of documents made available to him. A report, dated 12th
May, 2010, was submitted to this Court by the Chairman, SIT,
concurring with the findings of Shri A.K. Malhotra.
5. In his report dated 12th May, 2010, Shri A.K. Malhotra, inter alia
recommended further investigation under Section 173(8) of the Code
against certain Police officials and a Minister in the State Cabinet.
Consequently, further investigation was conducted and a report dated
17th November, 2010, was submitted by the SIT. On 23rd November,
2010, Shri Raju Ramachandran, Senior Advocate and Shri Gaurav
Agarwal, Advocate, replaced the previous Amicus Curiae, who had
expressed his unwillingness to continue.
6. On 20th January, 2011, a preliminary note was submitted by Shri Raju
Ramachandran, the learned Amicus Curiae; whereon, vide order dated
15th March, 2011, the SIT was directed to submit its report, and if
necessary carry out further investigation in light of the observations
made in the said note. The SIT conducted further investigation under
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Section 173(8) of the Code in Meghaninagar Police Station Crime
Report No.67 of 2002--Gulberg Society case, and submitted a report
on 24th April, 2011. After examining the said report, on 5th May,
2011, the following order was passed :
"Pursuant to our order dated 15th March, 2011, the
Chairman, Special Investigation Team (SIT) has
filed report on the further investigations carried out
by his team along with his remarks thereon.
Statements of witnesses as also the documents
have been placed on record in separate volumes.
Let a copy of all these documents along with the
report of the Chairman be supplied to Mr. Raju
Ramachandran, the learned Amicus Curiae.
The learned Amicus Curiae shall examine the
report; analyze and have his own independent
assessment of the statements of the witnesses
recorded by the SIT and submit his comments
thereon. It will be open to the learned Amicus
Curiae to interact with any of the witnesses, who
have been examined by the SIT, including the
police officers, as he may deem fit.
If the learned Amicus Curiae forms an opinion that
on the basis of the material on record, any offence
is made out against any person, he shall mention
the same in his report."
7. The learned Amicus Curiae has now submitted his final report dated
25th July, 2011. In light of the above conspectus and the report of the
learned Amicus Curiae, the question for determination is the future
course of action in the matter.
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8. We are of the opinion that bearing in mind the scheme of Chapter XII
of the Code, once the investigation has been conducted and completed
by the SIT, in terms of the orders passed by this Court from time to
time, there is no course available in law, save and except to forward
the final report under Section 173 (2) of the Code to the Court
empowered to take cognizance of the offence alleged. As observed by
a three-Judge Bench of this Court in M.C. Mehta (Taj Corridor
Scam) Vs. Union of India & Ors.1, in cases monitored by this Court,
it is concerned with ensuring proper and honest performance of its
duty by the investigating agency and not with the merits of the
accusations in investigation, which are to be determined at the trial on
the filing of the charge-sheet in the competent Court, according to the
ordinary procedure prescribed by law.
9. Accordingly, we direct the Chairman, SIT to forward a final report,
along with the entire material collected by the SIT, to the Court which
had taken cognizance of Crime Report No.67 of 2002, as required
under Section 173(2) of the Code. Before submission of its report, it
will be open to the SIT to obtain from the Amicus Curiae copies of his
reports submitted to this Court. The said Court will deal with the
matter in accordance with law relating to the trial of the accused,
named in the report/charge-sheet, including matters falling within the
1 (2007) 1 SCC 110
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ambit and scope of Section 173(8) of the Code. However, at this
juncture, we deem it necessary to emphasise that if for any stated
reason the SIT opines in its report, to be submitted in terms of this
order, that there is no sufficient evidence or reasonable grounds for
proceeding against any person named in the complaint, dated 8th June
2006, before taking a final decision on such `closure' report, the
Court shall issue notice to the complainant and make available to her
copies of the statements of the witnesses, other related documents and
the investigation report strictly in accordance with law as enunciated
by this Court in Bhagwant Singh Vs. Commissioner of Police &
Anr.2. For the sake of ready reference, we may note that in the said
decision, it has been held that in a case where the Magistrate to whom
a report is forwarded under Section 173(2)(i) of the Code, decides not
to take cognizance of the offence and to drop the proceedings or takes
a view that there is no sufficient ground for proceeding against some
of the persons mentioned in the FIR, the Magistrate must give notice
to the informant and provide him an opportunity to be heard at the
time of consideration of the report.
10.Having so directed, the next question is whether this Court should
continue to monitor the case any further. The legal position on the
point is made clear by this Court in Union of India & Ors. Vs. Sushil
2 (1985) 2 SCC 537
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Kumar Modi & Ors.3, wherein, relying on the decision in Vineet
Narain & Ors. Vs. Union of India & Anr.4, a Bench of three learned
Judges had observed thus :
"...that once a charge-sheet is filed in the
competent court after completion of the
investigation, the process of monitoring by this
Court for the purpose of making the CBI and other
investigative agencies concerned perform their
function of investigating into the offences
concerned comes to an end; and thereafter it is
only the court in which the charge-sheet is filed
which is to deal with all matters relating to the trial
of the accused, including matters falling within the
scope of Section 173(8) of the Code of Criminal
Procedure. We make this observation only to
reiterate this clear position in law so that no doubts
in any quarter may survive."
11.In M.C. Mehta Vs. Union of India & Ors.5, a question arose as to
whether after the submission of the final report by the CBI in the
Court of Special Judge, pursuant to this Court's directions, this Court
should examine the legality and validity of CBI's action in seeking a
sanction under Section 197 of the Code for the prosecution of some of
the persons named in the final report. Dismissing the application
moved by the learned Amicus Curiae seeking directions in this behalf,
a three-Judge Bench, of which one of us (D.K. Jain, J.) was a member,
observed thus:
3 (1998) 8 SCC 661
4 (1996) 2 SCC 199
5 (2008) 1 SCC 407
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"The jurisdiction of the Court to issue a writ of
continuous mandamus is only to see that proper
investigation is carried out. Once the Court
satisfies itself that a proper investigation has been
carried out, it would not venture to take over the
functions of the Magistrate or pass any order
which would interfere with his judicial functions.
Constitutional scheme of this country envisages
dispute resolution mechanism by an independent
and impartial tribunal. No authority, save and
except a superior court in the hierarchy of
judiciary, can issue any direction which otherwise
takes away the discretionary jurisdiction of any
court of law. Once a final report has been filed in
terms of sub-section (1) of Section 173 of the Code
of Criminal Procedure, it is the Magistrate and
Magistrate alone who can take appropriate
decision in the matter one way or the other. If he
errs while passing a judicial order, the same may
be a subject-matter of appeal or judicial review.
There may be a possibility of the prosecuting
agencies not approaching the higher forum against
an order passed by the learned Magistrate, but the
same by itself would not confer a jurisdiction on
this Court to step in."
12.Recently, similar views have been echoed by this Court in Narmada
Bai Vs. State of Gujarat & Ors.6. In that case, dealing with the
question of further monitoring in a case upon submission of a report
by the C.B.I. to this Court, on the conclusion of the investigation,
referring to the earlier decisions in Vineet Narain (supra), Sushil
Kumar Modi (supra) and M.C. Mehta (Taj Corridor Scam) (supra),
6 (2011) 5 SCC 79
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speaking for the Bench, one of us, (P. Sathasivam, J.) has observed as
under :
"70. The above decisions make it clear that though
this Court is competent to entrust the investigation
to any independent agency, once the investigating
agency complete their function of investigating
into the offences, it is the court in which the
charge-sheet is filed which is to deal with all
matters relating to the trial of the accused
including matters falling within the scope of
Section 173(8) of the Code. Thus, generally, this
Court may not require further monitoring of the
case/investigation. However, we make it clear that
if any of the parties including CBI require any
further direction, they are free to approach this
Court by way of an application."
13. Deferentially concurring with the dictum of this Court in the
aforenoted decisions, we are of the opinion that in the instant case we
have reached a stage where the process of monitoring of the case must
come to an end. It would neither be desirable nor advisable to retain
further seisin over this case. We dispose of this appeal accordingly.
14.Before parting, we direct the State of Gujarat to reimburse to Shri
Raju Ramachandran, all the expenses borne by him for travel from
Delhi to Ahmedabad and back. We also place on record our deep
appreciation for the able assistance rendered to us by Shri Raju
Ramachandran and Shri Gaurav Agarwal, the learned Amicus Curiae.
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(D.K. JAIN, J.)
............................................
(P. SATHASIVAM, J.)
.............................................
(AFTAB ALAM, J.)
NEW DELHI;
SEPTEMBER 12, 2011.
ARS
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