# 1 S.C.R. 991 RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & ORS

- **Citation:** [2010] 1 S.C.R. 991
- **Court:** Supreme Court of India
- **Decided:** 2010-01-12
- **Case number:** writ petition No. 6 of 2007
- **Bench:** Tarun Chatterjee, Aftab Alam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1-s-c-r-991-rubabbuddin-sheikh-v-state-of-gujarat-ors-26566
- **Pages:** 36

## Headnote

A
B
Constitution of India, 1950 - Article 32 - Writ petition -
Seeking transfer of investigation to CBI - In a case of alleged
abduction and fake encounter by State police authorities -
C
Direction sought for registration of offence and investigation
of alleged encounter of the material witness against the police
officials - Writ of Habeas Corpus also sought to produce wife
of the abducted person who was also alleged to be missing -
Investigation into the matter initiated by the State police in the
D ·
matter on the direction of Registry of Supreme Court, which
was issued on the basis of letter to the Chief Justice of India
by the writ petitioner- Police filing eight Action Taken Reports
before the Court - In one of the reports informed that dead
body of the wife of abducted person disposed of - Hence no
E
formal writ of Habeas Corpus issued - Held: There are grave
a/legations against high police officials - There are large and
various discrepancies in Action Taken Reports and in
investigation conducted by State Police - The investigation
of the case is also spread over other States -
The
F
investigation by the local police was de hors the mandate of
CrPC and not impartial - In the interest of justice and to instil
confidence in the minds of victims as well as public, the
investigation is handed over to CBI - In order to do complete
justice in a case, court can handover investigation to CBI even
G
after submission of the charge-sheet by local police -
Investigation - Code of Criminal Procedure, 1973 - Chapter
12.
The writ petitioner sent a letter to the Chief Justice
991
H
992
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A of India informing about killing of his brother 'S' in a fake
encounter and disappearance of his sister-in-law 'K' at
the hands of Anti Terrorist Squad of Gujarat Police and
Rajasthan Special Task Force. The letter was forwarded
by the Registry of Supreme Court to the Gujarat Police
B to take action. After several reminders, enquiry was
directed in the matter by the police.
In the meantime the petitioner filed writ petition No.
6 of 2007, seeking direction for investigation by CBI into
the alleged abduction and fake encounter of 'S', and
C registration of an offence and investigation by CBI into
alleged encounter of 'T', a close associate of 'S'i who was
a material witness against the police personnel. The
petitioner also sought writ of habeas corpus to produce
'K'.
D
The State filed its interim reports in the matter,
wherein it was stated that further inquiry was required
and also sought permission to interrogate 'T'. However,
from records it appeared that 'T' during a transit remand,
E escaped the police custody; and when the police
personnel tried to apprehend him, 'T' assaulted them and
then police personnel fired at him in self-defence, killing
him.
F
As per direction of this Court, Gujarat Police filed
eight Action Taken Reports in respect of the matter. In
one of the Reports, the State brought to the notice of the
Court that the body of 'K' was disposed of by burning.
In view of the same, Supreme Court restrained itself from
issuing a formal writ of Habeas Corpus.
G
Another Writ Petition No. 115 of 2007 was also filed
by mother of 'T', alleging fake encounter of her son. She
sought registration of the FIR in that case and its
investigation by CBI. Contempt Petition was also filed in
H the writ petition No. 6/2007.
RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 993
ORS.
The question for consideration before this Court was
A
whether in the facts and circumstances of the case, it was
just and proper to transfer the case to CBI Authorities or
any other independent agency, when the charge-sheet
had already been submitted by the local police.
Disposing of the Writ Petition No. 6 of 2007 and
contempt petition filed therein, and adjourning the
hearing in the Writ Petition No. 115 of 2007, the court.
B
HELD: 1.1. In an appropriate case when the court
feels that the investigation by the police authorities is not C
in the p

## Text

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[2010) 1 S.C.R. 991
RUBABBUDDIN SHEIKH
v.
STATE OF GUJARAT & ORS.
(Writ Petition (Crl.) No. 6 of 2007 etc:)
JANUARY 12, 2010
[TARUN CHATTERJEE AND AFTAB ALAM, JJ.]
A
B
Constitution of India, 1950 - Article 32 - Writ petition -
Seeking transfer of investigation to CBI - In a case of alleged
abduction and fake encounter by State police authorities -
C
Direction sought for registration of offence and investigation
of alleged encounter of the material witness against the police
officials - Writ of Habeas Corpus also sought to produce wife
of the abducted person who was also alleged to be missing -
Investigation into the matter initiated by the State police in the
D ·
matter on the direction of Registry of Supreme Court, which
was issued on the basis of letter to the Chief Justice of India
by the writ petitioner- Police filing eight Action Taken Reports
before the Court - In one of the reports informed that dead
body of the wife of abducted person disposed of - Hence no
E
formal writ of Habeas Corpus issued - Held: There are grave
a/legations against high police officials - There are large and
various discrepancies in Action Taken Reports and in
investigation conducted by State Police - The investigation
of the case is also spread over other States -
The
F
investigation by the local police was de hors the mandate of
CrPC and not impartial - In the interest of justice and to instil
confidence in the minds of victims as well as public, the
investigation is handed over to CBI - In order to do complete
justice in a case, court can handover investigation to CBI even
G
after submission of the charge-sheet by local police -
Investigation - Code of Criminal Procedure, 1973 - Chapter
12.
The writ petitioner sent a letter to the Chief Justice
991
H
992
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A of India informing about killing of his brother 'S' in a fake
encounter and disappearance of his sister-in-law 'K' at
the hands of Anti Terrorist Squad of Gujarat Police and
Rajasthan Special Task Force. The letter was forwarded
by the Registry of Supreme Court to the Gujarat Police
B to take action. After several reminders, enquiry was
directed in the matter by the police.
In the meantime the petitioner filed writ petition No.
6 of 2007, seeking direction for investigation by CBI into
the alleged abduction and fake encounter of 'S', and
C registration of an offence and investigation by CBI into
alleged encounter of 'T', a close associate of 'S'i who was
a material witness against the police personnel. The
petitioner also sought writ of habeas corpus to produce
'K'.
D
The State filed its interim reports in the matter,
wherein it was stated that further inquiry was required
and also sought permission to interrogate 'T'. However,
from records it appeared that 'T' during a transit remand,
E escaped the police custody; and when the police
personnel tried to apprehend him, 'T' assaulted them and
then police personnel fired at him in self-defence, killing
him.
F
As per direction of this Court, Gujarat Police filed
eight Action Taken Reports in respect of the matter. In
one of the Reports, the State brought to the notice of the
Court that the body of 'K' was disposed of by burning.
In view of the same, Supreme Court restrained itself from
issuing a formal writ of Habeas Corpus.
G
Another Writ Petition No. 115 of 2007 was also filed
by mother of 'T', alleging fake encounter of her son. She
sought registration of the FIR in that case and its
investigation by CBI. Contempt Petition was also filed in
H the writ petition No. 6/2007.
RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 993
ORS.
The question for consideration before this Court was
A
whether in the facts and circumstances of the case, it was
just and proper to transfer the case to CBI Authorities or
any other independent agency, when the charge-sheet
had already been submitted by the local police.
Disposing of the Writ Petition No. 6 of 2007 and
contempt petition filed therein, and adjourning the
hearing in the Writ Petition No. 115 of 2007, the court.
B
HELD: 1.1. In an appropriate case when the court
feels that the investigation by the police authorities is not C
in the proper direction and in order to do complete justice
in the case and as the high police officials are involved
in the said crime, it was always open to the court to hand
over the investigation to the independent agency like CBI.
It cannot be said that after the charge-sheet is submitted,
D
the court is not empowered, in an appropriate case, to
hand over the investigation to an independent agency
like CBI. [Para 54] [1018-D-F]
1.2. In the instant case, taking into consideration the
E
grave allegations made against the high police officials
of the State in respect of which some of them have
already been in custody, it is proper and appropriate and
in the interest of justice even at this stage, that is, when
the charge-sheet has already been submitted, the
investigation shall be transferred to the CBI authorities
for proper and thorough investigation of the case. [Para
51] [1016-G-H; 1017-A-B]
F
1.3. The accusations are directed against the local
police personnel in which High Police officials of the G
State of Gujarat have been made the accused. If
investigation is allowed to be carried out by the local
police authorities, all concerned including the relatives of
the deceased may feel that investigation was not proper
H
994
SUPREME COURT REPORTS
(2010) 1 S.C.R.
A and in those circumstances it would be fit and proper that
the writ petitioner and the relatives of the deceased
should be assured that an independent agency should
look into the matter and that would lend the final outcome
of the investigation credibility, however faithfully the local
B police may carry out the investigation, particularly when
the gross allegations have been made against the high
police officials of the State of Gujarat and for which some
high police officials have already been taken into
custody. [Para 49] [1015-G-H; 1016-A-D]
c
1.4. There are large and various discrepancies in
Action Taken Reports and the investigation conducted
by the police authorities of the State of Gujarat and the
charge-sheet filed by the State Investigating Agency also
cannot be said to have run in a proper direction. From
D the factual discrepancies appearing in eight Action Taken
Reports and from the charge-sheet, the Court feels that
the police authorities of the State of Gujarat had failed to
carry out a fair and impartial investigation as the Court
initially wanted them to do. It cannot be questioned that
E the offences, the high police officials have committed,
were of grave nature which need to be strictly dealt with.
[Paras 55 and 59] [1019-B-E; 1021-B-D]
1.5. The investigation of crime was carried out de
F hors the mandate contained in Cr.P.C. and particularly
Chapter XII containing Sections 154-176. There had bee11
no fresh FIR filed despite primary investigation No. 66 to
make the same the basis for investigation and trial. [Para
60] [1021-F]
G
1.6. Admittedly, the FIR dated .16th of November, 2005
which was filed following the alleged encounter was a
fabricated one and, therefore, it could not have formed
the basis of the real investigation to find the truth. The
investigation and charge-sheet were silent on the motive
H behind the 'killings'. The only motive stated is fame. From
RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 995
ORS.
the Action Taken Reports submitted by the State Police
A
Authorities, it is found that the State Police Authorities of
Gujarat had to take help from the o~her police officials of
other States, namely, Andhra Pradesh and Rajasthan. If
the investigation is transferred to the CBI Authorities, it
would be fair and proper that the other State police
B
officials should also help the CBI Authorities in coming
to a final conclusion on the allegations made by the writ
petitioner and also on the offences alleged to have been
committed by some of them. [Para 60) [1021-G-H; 1022A-D]
C
1.7. Although the charge-sheet was submitted, but
considering the nature of crime that has been allegedly
committed not by any third party but by the police
personnel of the State of Gujarat, the investigation
concluded in the present case cannot be said to be
D
satisfactorily held. [Para 65] [1024-D-E]
1.8. The scope of this order, however, cannot deal
with the power of this Court to monitor the investigation,
but on the other hand in order to make sure that justice
E
is not only done, but also is seen to be done and
considering the involvement of the State Police
Authorities and particularly the high officials of the State
of Gujarat, even at this stage, the court is compelled to
direct the CBI authorities to investigate into the matter.
F
Since the high police officials of the State of Gujarat are
involved and some of them had already been in custody,
it would not be sufficient to instill confidence in the minds
of the victims as well as of the public that still the State
Police authorities would be allowed to continue with the
G
investigation when allegations and offences were mostly
against them. In the present circumstances and in view
of the involvement of the police officials of the State in
this crime, the Court cannot direct the State Police
authorities to continue with the investigation and the
H
996
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A charge-sheet and for a proper and fair investigation. [Para
65] [1024-F-H; 1025-A-C]
1.9. The CBI Authorities shall investigate all aspects
of the case relating to the killing of 'S' and his wife 'K'
B 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. [Para 66]
[1025-E-F]
C
R. S. Sodhi vs. State of UP. AIR 1994 SC 38; Ramesh
· Kumari vs. State (NCT Delhi) and Ors. 2006 (2) SCC 677;
Kashmeri Devi vs. Delhi Administration AIR 1988 SC 1323;
Gudalure M. J. Cherian and Ors. vs. Union of India 1992 (1)
SCC 397; Punjab and Haryana High Court Bar Association
D vs. State of Punjab and Ors. AIR 1994 SC 1023; Sheikh Hasib
alias Tabarak v. The State of Bihar 1972 (4) SCC 773; Babu
Lodhi v. State of UP 1987 (2) SCC 352; Prem Kumar and
Anr. v. State of Bihar-1995 (3) SCC 228, relied on.
E
Vineet Naryan and Ors. vs. Union of India 1996 (2) SCC
199; Union of India vs. Sushi/ Kumar Modi 1998 (8) SCC
661; Rajiv Ranjan Singh 'La/an' (VIII) and Anr. vs. Union of
India and Ors. 2006 (6) SCC 613; Aleque Padamsee and Ors.
vs. Union of India and Ors. 2007 (6) SCC 171; M.C. Mehta
vs. Union of India and Ors. 2008 (1) SCC 407, distinguished.
F
Case Law Reference:
1996 (2) sec 199
Distinguished.
Para 38
1998 (8) sec 661
Distinguished.
Para 39
G
2006 (6) sec 613
Distinguished.
Para 42
2001 (6) sec 111
Distinguished.
Para 44
2008 (1) sec 407
Distinguished.
Para 45
H
RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 997
ORS.
AIR 1994 SC 38
Relied on.
Para 48
2006 (2) sec 677
Relied on.
Para 50
AIR 1988 SC 1323
Relied on.
Para 51
1992 (1) sec 397
Relied on.
Para 52
AIR 1994 SC 1023
Relied on.
Para 53
1912 (4) sec 113
Relied on.
Para 60
1987 (2) sec 352
Relied on.
Para 60
1995 (3) sec 228
Relied on.
Para 60
CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.)
No. 6 of 2007.
WITH
W.P. (Crl.) No. 115 of2007.
Conmt. Petn. Crl. No. 8 of 2207 in W.P. (Crl.) No. 6 of 2007.
A
8
c
D
Gopal Subramanium, S.G., Harin, P. Raval, ASG, . E
Dushyant A. Dave (NP), Mukul Rohtagi, Shekhar, Naphade
(NP), Tushar Mehta, AAG, Arunav Patnaik, Jinesh Kapadia,
Aman Ahluwalia, Huzefa Ahmadi (NP), Ejaz Maqbool, Abhijit
Sinha, Pardhuman Gohil, Taruna Singh, Garima Kapoor,
Meenakshi Arora, Hemantika Wahi, Jesal, Saurav Kripal, K.
F
Enatoli Serna, Pinky, Sushma Suri, GP. Capt. Karan Singh
Bhati, Aishwarya Bhati, Himanshu, Malini Poduval, Shibu
Shankar Misra, E.C. Agrawala, P. Narasiman, Arunabh
Choudhury, Anupam Lal Das, Raktim Gogoi, Kashi
Vishweshwar, A. Sumathi for the appearing parties.
G
The Judgment of the Court was delivered by
TARUN CHATTERJEE, J. 1. Acting on a letter written by
the writ petitioner, Rubabbuddin Sheikh, to the Chief Justice
H
998
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A of India about the killing of his brother, Sohrabuddin Sheikh in
a fake encounter and disappearance of his sister-in-law
Kausarbi at the hands of the Anti Terrorist Squad (ATS) Gujarat
Police and Rajasthan Special Task Force (RSTF), the Registry
of this Court forwarded the letter to the Director General of
B Police, Gujarat to take action. This letter of the Registry of this
Court was issued on 21st of January, 2007. After about six
months and after several reminders, the Director General,
Police, Gujarat, directed Ms. Geetha Johri, Inspector General,
Police (Crime), to inquire about the facts stated in the letter. A
c case was registered as Enquiry No. 66 of 2006. From 11th of
September, 2006 to 22nd of January, 2007 four Interim Reports
were submitted by one V.L. Solanki, Police Inspector, working
under Ms. Johri.
2. In the present writ petition, the writ petitioner seeks a
D direction for investigation by the Central Bureau of Investigation
(in short the 'CBI') into the alleged abduction and fake
encounter of the brother of the writ petitioner Sohrabuddin by
the Gujarat Police Authorities. The writ petitioner also seeks
the registration of an offence and investigation by the CBI into
E 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. The wi"it petitioner further
seeks a writ of habeas corpus to produce Kausarbi, the sisterF in-law of the writ petitioner.
3. As noted herein above, out of the four interim reports
submitted by one V.L.Solanki, Police Inspector, working under
Ms. Johri, only one report was submitted initially in this Court.
G It was only on 16th of May, 2007 that the other three reports
were submitted.
4. In the Report submitted on 12th of May, 2007, by
Ms.Johri, it has been stated as follows:
H
"However, based on the statement of variou5 witnesses
RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 999
ORS. [TARUN CHATTERJEE, J.]
and subsequent identification of the photographs of
A
Sohrabuddin and Kausarbi taken by Inquiry Team of CID
Crime there appears to be some discrepancy regarding
the presence of Sohrabuddin and Kausarbi at Hyderabad
and Ahmedabad which needs to be further enquired into.
Further enquiry also needs to be conducted with regards
B
(1) who were the person.s who claimed to be police who
picked up the three passengers namely Sohrabuddin,
Kausarbi and third unknown person. (2) what happened to
Kausarbi after 22.11.2005 when the so-called police
personnel took her off the bus."
c
5. In the same report, Ms. Johri sought permission to
interrogate one Tulsiram who was at that time in Rajasthan Jail.
From the record, it appears that on 27th/28th of December,
2006, an FIR was lodged in which it was stated that when
Tulsiram was sent on transit remand from Rajasthan to Gujarat,
D
two armed persons rescued him at gun point and fled with
Tulsiram. In the said FIR, it has been alleged that while search
was launched to locate Tulsiram early in the next morning, he,
along with two other persons, was spotted on a highway trying
to stop a matador van. It has also been alleged, that one of the
E
police officers who was following the matador in which Tulsiram
was traveling, accosted him, upon which Tulsiram was said to
have fired at the Police officer and the bullet was said to have
hit the mudguartl of the vehicle. The Police Officers were said
to have fired at Tulsiram in self-defence, killing him. However,
F
the other two persons somehow managed to escape in the
darkness.
6. One Mr. Raigar, Additional Director General of Police
and Head of CID Gujarat Police who was in-charge of the
G
investigation on the incident of death of Sohrabuddin and
disappearance of Kausarbi was replaced by one Mr. O.P.
Mathur, Additional Director General of Police (prison) who was
given an additional charge as Head of CID.
H
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[201 O] 1 S.C.R.
A
7. Ms. Johri was replaced by Mr. Rajneesh Rai, Deputy
Inspector General, as an Investigating Officer in respect of the
fake encounter relating to the incident of Sohrabuddin's case
and disappearance of Kausarbi.
8
8. The Writ Petitioner had, on an earlier occasion, filed a
petition under Article 32 of the Constitution of India, praying for
a direction to the Gujarat police to produce Kausarbi and for a
fair and impartial investigation in both the episodes by the CBI
so that the matter goes beyond the influence of the local police.
On the said application, while issuing a notice to the Union of
C India, this Court on 22nd of January 2007 requested Mr. Gopal
Subramanium, learned Addi. Solicitor General for India, (as he
then was) who was present in the Court, to take instructions in
the matter, in the meantime.
D
9. Subsequently, by another order dated 19th of March
2007, this Court issued a notice to the State of Gujarat which
was made returnable on 23rd of March 2007. It is evident from
the said order that the State of Gujarat was asked to produce
the relevant records on 23rd of March 2007. When the matter
E came up before it on 23rd of March 2007, the learned senior
counsel for the respondent State submitted that as regards
some of the police officers who were involved in the alleged
acts, some of the details were collected by the State and after
the full details were available further action would be taken in
F the matter. It was also submitted that the State would be writing
to the Government of Madhya Pradesh for giving protection to
the writ petitioner, residing at Village Jharnia Sheikh, Dist Ujjain,
M.P. Three weeks time was granted to the State to file a report
in a sealed cover. In the meantime, the report submitted by the
G Additional Solicitor General for India, (as he then was), was
perused and placed on record. The matter came up again on
20th of April 2007 for consideration before this Court. A week's
time was granted to enable the State of Gujarat to make
submissions on the report submitted by Additional Solicitor
General for India (as he then was), a copy of which was
H
RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 1001
ORS. [TARUN CHATTERJEE, J.]
ordered to be supplied to the learned Counsel for the State of
A
Gujarat and other parties.
10. On 27th of April 2007, the State of Gujarat submitted
an interim report on the investigation conducted by them in
pursuance of the orders of this Court dated 22nd of January,
8
2007, 19th of March 2007, 20th of March, 2007 and 23rd of
April 2007.
11. At that point of time, it was submitted by the learned
counsel for the State of Gujarat before this Court that if some
more time was granted, a comprehensive status report or
C
Action Taken Report could be submitted before this Court. The
learned Attorney General for India submitted that in view of the
serious nature of the offence in which some highly placed police
officials of the State of Gujarat were alleged to have been
involved, orders may be immediately passed directing the CBI
D
to take charge of the investigation and report to this Court.
12. This Court, by an order dated 3rd of May, 2007 ordered
that some more time may be granted to the State of Gujarat
before any further action was taken in the matter. However, after
E
going through the Interim Report of the Additional Solicitor
General and also the Interim Status Report filed by the State
of Gujarat, this Court held the view that a prima facie case was
made out for issuance of a Rule Nisi calling upon the Union of
India and the State of Gujarat to show cause why the order
prayed for should not be granted and also as to why a writ of
Habeas Corpus should not be issued to produce Kausarbi in
Court. At that stage, learned senior counsel appearing for the
State of Gujarat brought to the notice of the court that the body
F
of Kausarbi was disposed of by burning it in village lllol,
Sabarkantha District', which fact was brought on record in the
G
Action Taken Report No. 3 submitted on 3oth of April, 2007. In
that view of the matter at that stage, this Court restrained itself
from issuing a formal writ. The State of Gujarat was directed
to submit the final status report within two weeks from that date.
An allegation was made that Ms.Johri was taken off the
H
1002
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A investigation for some reasons best known to the State
Authorities. The State of Gujarat was directed to submit a report
in that regard also.
13. When the matter came up for hearing before this Court
B on 17th of May, 2007, Learned Attorney General for India again
submitted before us that this was a fit case where this Court
should pass an order directing handing over the investigation
from the State Investigating Agency to CBI as the investigation
would not only be made in the State of Gujarat, but also in the
States of Andhra Pradesh and Rajasthan and for such
C investigation, cooperation of the State of Rajasthan and State
of Andhra Pradesh and their high police officials may be
required. Therefore, according to Attorney General for India, it
would be difficult for the Investigating Agency of the State of
Gujarat to make proper and thorough enquiry and submit a
D report to this Court. Mr. Ahmadi, learned counsel appearing on
behalf of the writ petitioner also submitted that this Court should
direct the CBI to take over the investigation at the same time
permitting Ms.Johri and Mr. Rajneesh Rai to make the
investigation jointly and submit a report to this Court. Mr. Gopal
E Subramanium, learned Addi. Solicitor General for India (as he
then was) also agreed with the submissions of Mr.Ahmadi that
it was a fit case for handing over the investigation to CBI from
the State of Gujarat.
F
14. From the Action Taken Report No. 4 submitted before
this Court on 14th of May, 2007, it was found that the assistance
of Directorate of Forensic Science, Gujarat State, and BJ
Medical College, Ahmedabad has been sought to obtain
advice on the exhibits collected from the scene of offence.
G Permission of the Court was also sought for microanalysis and
other related tests in case of the accused namely, (1) Shri D.B.
Vanzara, IPS, Ex-DIG of Police, Border Range, Kutch-Bhuj, (2)
Shri Rajkumar Pandyan, Ex-SP, CID, IB and (3) Shri Dinesh
MN, IPS, SP, Alwar, Rajasthan. The application was pending
H then. In Action Taken Report No. 4, it was also stated that efforts
RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 1003
ORS. [TARUN CHATTERJEE, J.]
were being made to arrest the remaining accused officers and
A
men against whom there was prima facie evidence. Efforts
were being made to trace the remains of Kausarbi. A well
where reportedly the remains of Kausarbi were disposed of
was dug up and samples collected were sent to Forensic
Science Laboratory, Gandhinagar for further analysis and for
B
comparison with the soil samples taken from the scene where
the body of Kausarbi was alleged to have been disposed of
by burning at lllol Village, Sabarkanta District, in the State of
Gujarat. From the Action Taken Report No. 4 it appeared that
the following investigations were still awaited:
c
a. Andhra Pradesh Police Personnel who helped the ATS,
Gujarat in picking up the accused was yet to be identified.
Cooperation of DGP & IGP, Andhra Pradesh was enlisted
in this regard.
.
b. Apprehension of accused of Rajasthan for which help
of DGP & IGP Rajasthan was enlisted.
c. Reports from Directorate of Forensic Science, Gujarat
State.
d. Identification of the farm house to which Kausarbi was
shifted and method by which she might have died and
those involved in the crime, if any.
D
E
15. From the aforesaid report, it also appeared that the
F
charge sheet shall be filed as soon as the evidence came on
record. It was observed by this Court at that point of time that
on a perusal of the materials already brought on record, it was
difficult to conclude at that stage that the investigation was not
proceeding towards correct direction. At that stage, we did not
G
find it appropriate to direct the State of Gujarat to include Mr.
Raigar with Ms. Johri for completing the investigation.
16. At that stage, it was submitted before this Court by the
. learned senior counsel appearing for the state of Gujarat that
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[2010] 1 S.C.R.
A the final report would be submitted within four to six weeks from
15th of May, 2007.
17. Fifth Action Taken Report was dated 2nd of July, 2007.
In this report, taking a departure from what was stated in the
8 Fourth Action Ta~"" Report, Ms.Johri stated that the Andhra
Pradesh Police authorities had denied any official invo' 1ement
of Andhra Pradesh Police Personnel. Exa.11ining 194
witnesses, they had been able to array another six persons as
accused. Against the order of the Metropolitan Court rejecting
permission of the Court for conducting the NARCO And1ysis
C test of six accused persons, an appeal had been filed in the
Sessions Court.
18. The body of Kausarbi was cremated on 29th of
November, 2005 h lllol village. The assistance of Directorate
D of. Forensic Science was sought tr establish whether soil
samples collected from lllol village conta .. 1ed any rem2 1s of a
human body. As per FSI dated 28th ot May, 2007, nothing
incriminating was found.
E
19. The investigation was pending with respect to i) A ·e~
of two police personnel ii) To establish the identity of Anonr<
Pradesh Police personnel who might have unofficially helpec
ATS officials.
20. Charge sheet was proposed to be filed within
F prescribed time frame against the accused who was arrested.
21. On 16th of July, 2007, this Court directed that a copy
of the charge sheet must be supplied to the Addi. Solicitor
General for India (as he ,hen was) after taking note of the fact
G that the 6th Action Taken Report dated 14th of July, 2007 was
filed in court. This Report reiterated the stand that no official
assistance was rendered by Andhra Pradesh Police to ATS
Gujarat. Charge sheet had been filed in the Court of Chief
Metropolitan Magistrate against 13 accused for Criminal
H Conspiracy, abduction, wrongful confinemen murder etc. 13
RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 1005
ORS. [TARUN CHATTERJEE, J.]
have been arrested. One of the 13 accused whose names had
A
been listed is one Mr. N.V. Chauhan, PSI who, in the previous
. ATR, had been mentioned as yet to be arrested. However, the
name of one Mr. Jadeja, Driver PC who was also supposed
to be arrested as per previous ATR, did not appear among the
names -of the accused who were arrested. Evidently, he had
B
not been charge sheeted.
22. The motives for killings wa, at buted as "name, fame
and promotion'', in case of Sohraouddin's death and
"destruction of evidence", in Kausarbi's case.
23. 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 said Tulsiram Prajapati.
c
24. Ms.Johri also stated that the investigation had been
D
carried on in a fair and impartial manner under her direct
supervision.
25. It was stated that the writ petitioner did not cooperate
with the investigation. It is also stated that copies of ATR cannot
be supplied as the same would help the accused.
E
26. On 2nd of August, 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 Police. He could be hiding somewhere, unharmed.
F
It again detailed the efforts of the State CID (Crime) to make
sure that none of the accused goes scot-free. Accused Police
Officers, irrespective of their rank, had been arrest.;d. They
were suspended or transferred to avoid their interfe·ence with
the case. Police personnel themselves had deposed against
G
the accused Police officers. No anticipatory bail was granted
to any of the accused.
27. Mr. Jadeja was the one who had first revealed the
name of N.K.Amin on 26th of April, 2007.
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(201 O] 1 S.C.R.
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28. The accused had challenged subjecting them to
NARCO analysis and the matter was pending before the Court.
The Report submitted that analyzing the voluminous details of
the calls made by the accused, collected from various service
providers, would take time. It was also urged that the Habeus
B Corpus filed by Rubabbuddin Sheikh does not survive as
Kausarbi's body was found to be cremated.
29. On 15th of September, 2008, Ms. Johri filed the Eighth
Action Taken Report. It mentioned that a supplementary charge
sheet was filed on 10th of December, 2007. It also detailed the
C status of bail applications rejected or pending. The Writ
Petitioner filed an application in the Sessions Court, which was
partly allowed and the Investigating Officer Police Inspector
Shri. D.H.Trivedi, was directed to carry out further investigation
under Section 173(8) of the Code of Criminal Procedure within
D 90 days.
30. The details of communication between the witnesses
a!'ld the owner of the Crane which was sent to pull out the tempo
which got bogged while carrying firewood for the cremation of
E Kausarbi's body were revealed. The call details revealed the
movements of the accused, their connection between each
other, and the wrongful confinement of Kausarbi and
Sohrabbuddin in Disha farm.
31. In order to establish motive as mentioned in the charge
F sheet, details of 15 criminal cases in which Sohrabbuddin was
involved were collected. Efforts were still made to trace
Kalimuddin and to identify the Police officers and men of
Andhra Pradesh who had allegedly helped the accused though
no involvement of the Police Personnel of Andhra Pradesh was
G suspected. On the question of NARCO Analysis, the matter was
heard by this Court and the judgment was kept reserved. FSL
Gujarat had stated that NARCO Analysis would be conducted
only with the consent of the accused. The Investigating Officer
was asked to move the High Court in the matter.
H
RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 1007
ORS. [TARUN CHATTERJEE, J.]
32. After eight Action Taken Reports were submitted and
A
objections thereto were also filed by the parties, the writ petition
came up for final hearing for the purpose of deciding whether
in the facts and circumstances of the present ca~d, it would be
just and proper to transfer the case to the CBI Authorities for
the purpose of investigation into the allegations made on behalf
B
of the writ petitioner. On this aspect of the matter, we have heard
Mr.Dushyant Dave, learned senior counsel for the writ petitioner
and Mr.Gopal Subramanium, learned Solicitor General for India,
who appeared as Amicus Curiae and Mr.Mukul Rohtagi,
learned senior counsel for the State of Gujarat and other c
learned counsel appearing for the parties. After hearing the
learned senior counsel and after going through the eight Action
Taken Reports and other materials on record, two questions
were articulated by the learned counsel for the parties - one is
whether after the charge sheet was submitted by the police and
0
the trial was going on, under that circumstances whether the
investigation can be transferred to the CBI Authorities.
Secondly, it was argued that in respect of the fact that eight
Action Taken Reports were submitted but from the said reports,
F
it would be clear that the Police Authorities of the State of
Gujarat were not taking proper action in the matter although
E
some of their high police officials were taken to custody.
Therefore, let u::. first consider the first question, namely,
whether investigation can be transferred to CBI Authorities or
any other independent agency when the charge sheet has
already been submitted. In support of his contention that the
investigation can be transferred to the CBI Authorities when the
charge sheet in the criminal proceeding was already filed,
reference was made to in Kashmeri Devi vs. Delhi
Administration & Anr. [AIR 1988 SC 1323] by the learned
senior counsel for the writ petitioner. He .also relied on a
G
decision of this court in the case of lnder Singh vs. State of
Punjab & Ors. [1994 (6) SCC 275] in which this Court held that
the enquiry should be transferred to the CBI Authorities for
investigation in view of the fact that the police authorities had
not been able to locate the whereabouts of the abducted
H
1008
SUPREME COURT REPORTS
[201 O] 1 S.C.R.
A persons. Therefore, these decisions were cited by the learned
counsel for the writ petitioner to show that even after the charge
sheet has been filed in the Court of Competent Jurisdiction, this
Court is empowered to direct the CBI Authorities or any other
independent agency to take over the investigation from the
B police authorities. The learned counsel for the writ petitioner
also placed strong reliance on a decision of this Court in the
case of Gudalure M.J.Cherian & Ors. vs. Union of India [1992
(1) sec 397] from which it also appears that although the
charge sheet was filed in that case, this Court directed the CBI
c to hold further investigation in respect of the offence so
committed. Similar is the question raised in P & H High Court
Bar Association vs. State of Punjab & Ors. [AIR 1994 SC
1023] in which case also the investigation was handed over to
the CBI Authorities after the charge sheet was submitted in the
0
court. While making such order, this Court observed :
E
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H
"The High Court was wholly unjustified in closing its eyes
and ears to the controversy which had shocked the lawyer
fraternity in the Region. For the reasons best known to it,
the High Court became wholly oblivious to the patent facts
on the record and failed to perform the duty entrusted to it
under the Constitution. After giving our thoughtful
consideration to the facts and circumstances of this case,
we are of the view that the least the High Court could have
done in this case was to have directed an independent
investigation/enquiry into the mysterious and most tragic
abduction and alleged murder of Kulwant Singh, Advocate
and his family.
We are conscious that the investigation having been
completed by the police and charge-sheet submitted to the
court, it is not for this Court, ordinarily, to reopen the
investigation. Nevertheless, in the facts and circumstances
of the present case, to do complete justice in the matter
and to instill confidence in the public mind it is necessary,
in our view, to have fresh investigation in this case through
RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 1009
ORS. [TARUN CHATTERJEE, J.]
a specialised agency like the Central Bureau of
A
Investigation (CBI)."
33. Accordingly, the learned senior counsel appearing for
the writ petitioner submitted that even if the charge sheet was
submitted it was still open to the court to direct investigation to
B
be made by the CBI Authorities and accordingly in view of the
above position in law, this Court, considering the facts and
circumstances of the present case, should direct the CBI
Authorities to investigate the offences alleged to have been
committed by some of the police authorities of the State of
Gujarat and submit a report if this Court is of the view that the
C
State Police Authorities who had already filed eight Action
Taken Reports had not done such investigation in the proper
direction nor had they investigated in a fair and proper manner.
34. This submission of the learned senior counsel for the
D
writ petitioner was hotly contested by Mr.Mukul Rohtagi, learned
senior counsel who appeared for the State of Gujarat.
According to Mr. Rohtagi, after the charge sheet was submitted
in court, it was not open to the court to hand over the
investigation to the CBI or any other independent agency and
E
in support of that contention a decision of this Court in the case
of Vineet Narayan & Ors. vs. Union of India [1996 (2) SCC
199] was relied on. In this decision, this Court observed:
"In case of persons against whom a prima facie case is
made out and a charge-sheet is filed in the competent
court, it is that Court which will then deal with that case on
merits, in accordance with law.
F
However, if in respect of any such person the final
report after full investigation is that no prima facie case is
G
made out to proceed further, so that the case must be
closed against him, that report must be promptly submitted
to this Court for its satisfaction that the authorities
concerned have not failed to perform their legal obligations
and have reasonably come to such conclusion. No such
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1010
SUPREME COURT REPORTS
[201 O] 1 S.C.R.
A
report having been submitted by the CBI or any other
agency till now in this Court, action on such report by this
Court would be considered, if and when _that occasion
arises."
B
35. Subsequent to the aforesaid decision of this Court,
another decision of this Court, namely, Union of India vs. Sushi/
Kumar Modi [1998 (8) SCC 661] was relied on by Mr.Rohatgi,
learned senior counsel in which this Court observed after
considering and following the decision in Vineet Narayan's
C case that once a charge sheet is filed, the adequacy or
otherwise of the charge sheet and the investigation cannot be
gone into by this C urt under Article 32 of the Constitution of
India and the only remedy which can be pursued if any aggrieved
party feels that in some areas the investigation is inadequate
is an application under Section 173 (8) of the Code of Criminal
D Procedure. This Court observed as follows:
E
F
G
H
"This position is so obvious that no discussion of the point
is necessary. However, we may add that this position has
never been doubted in similar cases dealt with by this
Court. It was made clear by this Court in the very first case,
namely, Vineet Narain v. Union of India that once a
chargesheet 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. It is
therefore clear that the impugned order of the High Court
dealing primarily with this aspect cannot be sustained."
36. Another decision of this Court which was strongly relied
RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 1011
ORS. [TARUN CHATTERJEE. J.]
on by Mr.Mukul Rohatgi, learned senior counsel appearing for A
the State of Gujarat is the decision in Rajiv Ranjan Singh
'La/an' (VIII) and Anr. Vs. Union of India & Ors. [2006 (6) SCC
613]. In this decision referring to the case of Sushi/ Kumar
Modi (supra) and Vineet Narayan (supra}, this court held :
B
"It is thus clear from the above judgment 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 CBI and other
investigative agencies concerned perform their function of C
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).
We respectfully agree with the above view
expressed by this Court. In our view, monitoring of pending
trial is subversion of criminal law as it stands to mean that
the Court behind the back of the accused is entering into
D
a dialogue with the investigating agency. Therefore, there E
can be no monitoring, after the charge sheet is filed."
37.