# [2011] 5 S.C.R. 729

- **Citation:** [2011] 5 S.C.R. 729
- **Court:** Supreme Court of India
- **Decided:** 2011-04-08
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2011-5-s-c-r-729-27673
- **Pages:** 40

## Headnote

(2011] 5 S.C.R. '729
NARMADA BAI
A
v.
, · STATE OF GUJARAT AND ORS ..
· (Writ Petition (Criminal) No. 115 of 2007)
;
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0
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. , APRIL 8, 2011
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[P. SATHASIVAM AND,, DR: B.5. CHAUHAN,, JJ.l
. . '
····~
'
.
.-
B
' ;
- " Investigation/inquiry: Allegation against high police
officials and senior politician - Filing of charge-sheet by the ,
State. agency -
Writ petition seeking investigation· by C
specialize<;} agency -
Held: In an appropriate case,
particularly, when the court feels that the investigation by the
State police authorities is not in the. proper direction as the .
high police officials are involved, in order to do complete
justice, "it is always open· to· the Court to 'hand over the
D
investigation ·to an independent and specialized ·agency like
the CBI even when charge sheet is submitted - lil the instant ·
case, the petitioner sought transfer of case 'to CBI to
investigate fake encounter killing of her son (victim) -'It was
the definite case of the CBI that the' abduction of 'S' and 'K;
E
the associate of victim and their subsequent murders as well
as the murder of the victim were one series of acts, so
connected together as to form the same transaction ills. 220,
Cr. P. C. and if two parts of the saine transaction were
investigated and prosecuted by different agencies,; it might' F
cause failure of justice not only in one case but in other trial
as well - ·There was substantial material already on record
which made it probable that the prime motive of elimination
of victim was that he was a witness to abduction of 'S' and 'K'
- Evidence raised strong suspicion that the encounter was
G
fake and stage managed as predicted by victim prior to his
death - Much before the incident of alleged fake encounter,
complaints were lodged bY. victim in writing to the Collector
and to the NHRC expressing the apprehension that he was .
729
H
730
SUPREME COURT REPORTS
[2011) 5 S.C.R.
A likely to be killed by Gujarat and Rajasthan police - It is the
age old maxim that justice must not only be done but must
be seen to be done - The fact that senior police officials and
a senior politician were accused may shake the confidence
of public in investigation conducted by the State Police - The
s analysis of the materials showed several lacuna on the part
of the investigation by the State Government - In view of
circumstances 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 is not desirable
c to allow the Gujarat State Police to continue with the
investigation - Accordingly, to meet the ends of justice and
in the public interest, the CBI is directed to take over the
investigation - Police Authorities of the Gujarat State are
directed to handover all the records of the case to the CBI.
D
Criminal trial: Transfer of investigation to CBI ordered by
the Supreme Court - Submission of report by CBI and
subsequent monitoring - Held: Once a charge sheet is filed
in the competent court after completion of the investigation,
the process of monitoring by the Supreme Court for the
E purpose of making the CBI and other investigating agencies
concerned perform their function of investigating into the
offences concerned comes to an end - 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
F matters falling within the scope of s. 173(8) Cr.P.C.
In *Rubabbuddin Sheikh case, the Supreme Court
directed the CBI to investigate all aspects of the case
relating to the killing of one 'S' and his wife 'K' in a fake
G encounter. In the said judgment, the court recorded that
· there was strong suspicion that the third person picked
up with 'S' was 'T' and a possibility of "larger conspiracy"
and that killing of 'T' was part of the same conspiracy. 'T'
was stated to be a key witness to the murder of 'S' and
'K'.
H-·
NARMADA BAI v.

## Text

_Characters 0–39,904 of 79,559. This is a partial read: ask again with offset=39904 for what follows._

(2011] 5 S.C.R. '729
NARMADA BAI
A
v.
, · STATE OF GUJARAT AND ORS ..
· (Writ Petition (Criminal) No. 115 of 2007)
;
- '
~
•
1
0
'
•
•
\-
'
,;
. .~ i
. , APRIL 8, 2011
~
'
y,
-
~
[P. SATHASIVAM AND,, DR: B.5. CHAUHAN,, JJ.l
. . '
····~
'
.
.-
B
' ;
- " Investigation/inquiry: Allegation against high police
officials and senior politician - Filing of charge-sheet by the ,
State. agency -
Writ petition seeking investigation· by C
specialize<;} agency -
Held: In an appropriate case,
particularly, when the court feels that the investigation by the
State police authorities is not in the. proper direction as the .
high police officials are involved, in order to do complete
justice, "it is always open· to· the Court to 'hand over the
D
investigation ·to an independent and specialized ·agency like
the CBI even when charge sheet is submitted - lil the instant ·
case, the petitioner sought transfer of case 'to CBI to
investigate fake encounter killing of her son (victim) -'It was
the definite case of the CBI that the' abduction of 'S' and 'K;
E
the associate of victim and their subsequent murders as well
as the murder of the victim were one series of acts, so
connected together as to form the same transaction ills. 220,
Cr. P. C. and if two parts of the saine transaction were
investigated and prosecuted by different agencies,; it might' F
cause failure of justice not only in one case but in other trial
as well - ·There was substantial material already on record
which made it probable that the prime motive of elimination
of victim was that he was a witness to abduction of 'S' and 'K'
- Evidence raised strong suspicion that the encounter was
G
fake and stage managed as predicted by victim prior to his
death - Much before the incident of alleged fake encounter,
complaints were lodged bY. victim in writing to the Collector
and to the NHRC expressing the apprehension that he was .
729
H
730
SUPREME COURT REPORTS
[2011) 5 S.C.R.
A likely to be killed by Gujarat and Rajasthan police - It is the
age old maxim that justice must not only be done but must
be seen to be done - The fact that senior police officials and
a senior politician were accused may shake the confidence
of public in investigation conducted by the State Police - The
s analysis of the materials showed several lacuna on the part
of the investigation by the State Government - In view of
circumstances 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 is not desirable
c to allow the Gujarat State Police to continue with the
investigation - Accordingly, to meet the ends of justice and
in the public interest, the CBI is directed to take over the
investigation - Police Authorities of the Gujarat State are
directed to handover all the records of the case to the CBI.
D
Criminal trial: Transfer of investigation to CBI ordered by
the Supreme Court - Submission of report by CBI and
subsequent monitoring - Held: Once a charge sheet is filed
in the competent court after completion of the investigation,
the process of monitoring by the Supreme Court for the
E purpose of making the CBI and other investigating agencies
concerned perform their function of investigating into the
offences concerned comes to an end - 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
F matters falling within the scope of s. 173(8) Cr.P.C.
In *Rubabbuddin Sheikh case, the Supreme Court
directed the CBI to investigate all aspects of the case
relating to the killing of one 'S' and his wife 'K' in a fake
G encounter. In the said judgment, the court recorded that
· there was strong suspicion that the third person picked
up with 'S' was 'T' and a possibility of "larger conspiracy"
and that killing of 'T' was part of the same conspiracy. 'T'
was stated to be a key witness to the murder of 'S' and
'K'.
H-·
NARMADA BAI v. STATE OF GUJARAT AND ORS.
731
The petitioner in the instant writ petition was the
A
mother of 'T'. The grievance of the petitioner was that her
son had been done away by respondent Nos. 6-19, the
officials of Gujarat and Rajasthan police in a fake
encounter with the ulterior intent to shield themselves in
the investigation emanating under the directions of the
B
Supreme Court in *Rubabbuddin Sheikh case. The instant
petition was filed by her under Article 32 of the
Constitution praying for issuance of a writ of mandamus
or in the nature thereof or any other writ, order of
direction directing the CBI to register a First Information c
Report and investigate into the fake encounter killing of
her son and submit its report to the Supreme Court. The
petitioner also prayed for compensation for the killing of
her son in a fake encounter thereby causing gross
violation of Articles 21 and 22 of the Constitution.
D
The issues which arose for consideration in the
instant writ petition were whether after filing of the
charge-sheet by the State agency, the court is precluded
from appointing any other independent specialized
agency like the CBI to go into the same issues if the
E
earlier investigation was not done as per the established
procedure; and subject to the answer relating to the first
issue whether the petitioner has made out a case for
entrusting the investigation to the CBI.
Allowing the writ petition, the Court
F
HELD: 1.1. In an appropriC!_te case, particularly, when
the Court feels that the investigation by the State police
authorities is not in the proper direction as the high
police officials are involved, in order to do complete G
justice, it is always open to the Court to hand over the
investigation to an independent and specialized agency
like the CBI. It is clear from the judgment of *Rubabbuddin
Sheikh case that there was a strong suspicion that·the
H
732
SUPREME COURT REPORTS
[2011) 5 S.C.R.
A 'third person' picked up with 'S' was 'T'. It was also
observed that the call records of 'T' were not properly
analysed and there was no. justific~tion for the then
ir;ivestigating officer to have walked out of the
investigation pertaining to 'T'. The Court had also
B
directed the CBI to unearth "larger conspiracy" regarding
the murder of 'S'. In such circumstances, those
observations and directions ca1:mot lightly be taken note
of and it is the duty of the CBI to go into all the details as
directed by this Court. [paras 11, 19) [7 47-E; 756-E-F]
C
*Rubabbuddin Sheikh vs. State of Gujarat & Ors., 2010
(1) SCR991 = 2010 (2) SCC 200; Vineet Narain vs. Union
of India 1996. (1) S~R 1053 = 1996 (2) SCC 199 - relied
on.
D
Union of India vs. Sushi/ Kumar Modi (1998) 8 SCC 661;
Rajiv Ranjan Singh 'La/an' (Vfll) vs. Union of India 2006 (4)
Suppl. SCR 742 = 2006 (6). SCC 613; Hari Singh vs.
State of U.P. 2006 (3) Suppl. SCR 59 = · 2006 (5) sec 733
; Aleque Padamsee vs. Union of India 2007 (8) SCR 390 =
E
2007 (6) SCC 171; MC. Mehta vs. Union of India 2007 (10)
SCR 1060 = 2008 (1) SCC 407; R. S. Sodhi vs. State of
U.P.' 1994 Supp (1) SCC 143; Ramesh Kumari vs .. State
(NCT of Delhi) 2006 (2) SCR 403 = 2006 (2) sec 677;
Kashmeri Devi vs. Delhi Administration 1988 Supp SCC 482;
F
Gudalure M.J. Cherian vs. Union of India 1991 (3) Suppl.
SCR 251 = 1992 (1) SCC 397 ; Punjab & Haryana High
Court Bar Asson. vs. State of Punjab 1993 (3) Suppl. SCR
915 = 1994 (1) sec 616 - referred to.
1.2. In the instant case, it was the definite case of the
G CBI that the abduction of 'S' and 'K' and their subsequent
mμrders as well as the murder of 'T' were 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
H
NARMADA BAI v. STATE OF GUJARAT AND ORS.
733
•
transaction are investigated and prosecuted by different A
agencies, it may cause failure of justice not only in one
case but in other trial as well. There was substantial
material already on record which made it probable that'
the prime motive of elimination of 'T' was that he was,a
witness to abduction of 'S' and 'K'. Both oral and
B
documentary evidence raised strong suspicion that the
encounter was fake and stage managed as predicted by
'T' prior to his death. Much before the incident of alleged
fake encounter of 'T',· two· complaints were lodged in
writting, one to the Collector, Udaipur and another c
addressed to the Chairman; NHRC, New Delhi'
expressing the apprehension that he is likely and going
to be killed by Gujarat and Rajasthan police. [Paras 23,
32] [759·B~E; 763-C"F] · _,_
· ·· . ...,
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1.3. It is the age-~!d.ir!_axim that justice must not only.
be done but must be seen to be done. The fact-that in the .
case of murder of an associate of 'T', senior police
officials and a senior politician were accused which' may
shake the confidence of public in investigation coilauctEfd'
by the State Police. If the majesty of rule of law is to be
E
upheld and if it is to be ensured that the guilty are
punished 'in accordance with law notwithstanding their'
status and authority which they might have enjoyed, it is'·
desirable to entrust the investigation to the CBI. It was the
specific claim of the State of. Gujarat that they have. F1
conducted a fair and impartial investigation into the killin'g
of 'T', however, analysis of the materials showed several
lacuna on the part of the investigation by the State
Government. Therefore, without entering into the
allegations leveled by either of the parties, it would be
G
prudent and advisable to transfer the investigation to an
independent agency. It is trite law that accused persons
do not have a say in the matter of appointment of an .
investigation agency. The accused persons cannot·
H
734
SUPREME COURT REPORTS
[2011) 5 S.C.R.
•
A choose as to which investigation agency must
investigate the alleged offence committed by them.
Although, charge-sheet has been filed by the State of
Gujarat after a gap of 3 ~ years after the incident, that too
after pronouncement of judgment in Rubbabudin's case
B and 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
conducted and concluded in the instant case by the State
police cannot be accepted. In view of various
c 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,
0 accordingly, to meet the ends of justice and in the public
interest, the CBI is directed to take the investigation.
[Paras 31, 32, 36, 37) [762-H; 763-A-C; 765-H]
E
Md. Anis vs. Union of India and Ors. 1993 (1) Suppl.
SCR 263 = 1994 (1) Suppl. sec 145 - relied on.
M.C. Mehta (Taj Corridor Scam) vs. Union of India and
Others 2006 (9) Suppl. SCR 683 = 2007 (1) SCC 110 -
referred to.
2. once a charge sheet is filed in the competent court
F after completion of the investigation, the process of
monitoring by the Supreme Court for the purpose of
making the C~I and other investigating agencies
concerned perform their function of investigation into the
offences concerned comes to an end and thereafter it is
G 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) Cr.P.C. [Para 38) [766-F·H]
H
3. The Police Autho'rities of the Gujarat State are
NARMADA BAl v. STATE OF GUJARAT AND ORS.
735
directed to handover all the records of the instant case
A
to the CBI within two weeks from this date and the CBI
shall investigate all aspects of the case relating to the
killing of 'T' and file a report to .the concerned .court/
special court having jurisdiction within a period of six
months from the date .of taking over of the investigation
B
from the State Police Authorities. The Police Authorities
of the State of Gujarat, Rajasthan and Andhra Pradesh
are also directed to cooperate with the CBI Authorities in
conducting the investigation. Though the petitioner has
prayed for compensation for the killing of her son, c
inasmuch as the CBI is directed to investigate and submit
a report before the court concerned/special court within
six months, depending on the outcome of the
investigation, petitioner is permitted to move the said
court for necessary direction for compensation and it is
D
for the said court ·to pass appropriate orders in
accordance with law. [Paras 39-40) [767-H; 768-A-Ej
~ Case Law Reference:
2010 (1) SCR 991
relied on
Para 2, 13, 16,
E
17, 38, 36
1996 (1) SCR 1053
relied on
Para 11, 38
(1998) 8 sec 661
. referred to Para 11, 38
2006 (4) Suppl. SCR 742 referred to Para 11
F
2006 (3) Suppl. SCR 59
referred to Para 11
2007 (8) SCR 390
referred to Para 11
2007 (10) SCR 1060
referred to Para 11
G
1994 Supp (1) sec 1.43
relied on
Para 11, 34
2006 (2) SCR 403
referred to Para 11
1988 Supp sec 482
referred to Para 11
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736
SUPREME COURT REPORTS
[2011) 5 S.C.R.
A
1991 (3) Suppl. SCR 251
referred to Para 11
1993 (3) Suppl. SCR 915 referred to Pi;ira 11
1993 (1) Suppl. SCR 263 referred to Para 33
B
2006 (9) Suppl. SCR 683 referred to Para 37
CRIMINAL APPELLATE JURIDICTION : Writ Petition (Crl.)
No. 115 of 2007.
·
·
Under Article 32 of the Constitution of India.
c
H.P:. Rawal, ASG, Ranjeet Kumar, Ram Jethmalani, KTS
Tulsi, Jaideep Gupta, Tushar Mehta, AAG, Huzefa, A. Ahmadi,
Meenakshi Arora, Hemantika Wahi, Pranav Diesh, Karan
Kalia, Anish K. Gupta, Subramonium Prasad, Rajat Khattry,
Maheen Pradhan, A.K. Sharma, Deepak Prakash, Biju P.
D Raman, Rajesh B., Malini Poduval, Bhupender Yadav, S.S.
E
Shamashery, Debaleena Kilikdar, B. R. Barik, R.C. Kohli, Gp.
Capt. Karan Singh Bhati, Jyoti Upadhyay, Rashid Khan,
Padmalakshmi Nigam: Harsh N. Parekh, Sonam Anand, S.N.
Terdal for the appearing parties.
The Judgment of the Court was delivered by
P. SATHASIVAM, J. 1. Narmada Bai-the petitioner herein,
mother of Tulsiram Prajapati-the deceased, who, according to
her, was killed on 27/28.12.2006 in a fake encounter by
F respondent Nos. 6 to 19, who are the officials of Gujarat and
Rajasthan Police, somewhere on the road going from
Ambalimal to Sarhad Chhapri, has filed the above writ petition
under Article 32 of the Constitution of India praying for issuance
of a writ of mandamus or in the nature thereof or any other writ,
G order or direction directing the Central Bureau of Investigation
(in short 'the CBI') to register a First Information Report (in short
'FIR') and investigate into the fake encounter killing of her son
and submit its report to this Court. In the same petition, she also
prayed for compensation for the killing of her son in a fake
H
NARMADA BAI v. STATE OF GUJARAT AND ORS.
737
[P. SATHASIVAM, J.]
encounter thereby causing gross violation of Articles 21 and 22
A
of the Constitution .
. 2. _Case_ of the Writ -Petitioner:-_ ·
1-
(a) According to the petitioner, she is 55 years.old illiterate
widow. Her younger son had been done away by respondent'. B
Nos. 6-19 in a fake encounter with the' ulterior intent to shield
themselves in the investigation emanating under the directions
of this Court in the· case of Rubabbuddin Sheikh vs"' State of
G~jarat & Ors., (2010) 2 SCC 200.- ~he came.to know through
local pe.rsotis abo~t the fake".ehco,unter, an,d killing' ofC
Sohrabuddi.n· and his wife Kausarbi and ,the d_irections of this
Court in that case. On being informed abouUhe said incident,
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she approached this Court for.directions to register an FIR into,
the fake encounter killing of her son' :tulsiram' Prajapati and
investigation by an independent agency, l_ike the CBI and for
D
submission of its report to this Court for further action.
According to the petitioner, the fake.encounter killing of her son
is directly ·connected to the case of sohrabuddin a·nd his wife
Kausarbi as he would have been a material witness to the said
killings. - .
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. - (b) It is further stated that her son'TulsiramPrajapati while
lodged in_ Central Jail, Ucjaipur, had addressed a letter dated _
11.05.2006 to the Collector, Udaipur informing him about the
life threatening attack carried out on him in Udaipur Central Jiiil
on 25.03.2006, when he was beaten up with.iron rods and lathis
by co-prisoners. He expressly wrote that there was conspiracy
to kill him along with two· others and_ a1$0 named the persons
who were behind the conspiracy and requested that incident -
F
be investigated and his life be protected. Thereafter, on~
18.05.2006, the deceased also addressed a. letter to the
G
Chairman, National Human Rights Commission (in short
'NHRC') alleging that there was conspiracy among the police
officials of Gujarat, Rajasthan, Maharashtra, etc. to do away
with him in a fake encounter by cooking up a false story.of.
n.mning away from custody, In the __ said letter, the deceased
H.
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738
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A specifically requested that his security be ensured whenever he
is taken on remand. In the same letter, he also mentioned that
the Gujarat Crime Branch and Anti Terrorist Squad (in short
'A TS') were very notorious for staging fake encounters. The
NHRC acknowledged the receipt of the said letter and
B forwarded a copy to the Superintendent of Police, Udaipur,
Rajasthan vide letter dated 22.06.2006.
(c) Thus from March 2006, the deceased had been
expressing serious apprehensions and threat to his life at the
hands of the police. The deceased had reasons to believe that
C Mr. Dinesh Kumar, Superintendent of Police, respondent No.8,
had taken a huge sum of money from the Marble traders and
dealers in Rajasthan with the assurance that he would do away
with him in a fake encounter. Before he being interrogated by
Ms. Geeta Johri, an officer investigating the matter of fake
D encounter killing of Sohrabuddin and his wife Kausarbi, in the
night intervening 27/28 December, 2006, Tulsiram Prajapati
was done away in a fake encounter by respondent Nos. 6-19.
(d) Quoting from certain newspaper reports, more
E particularly, the Times of India dated 29.12.2006, the petitioner
has alleged that her son was being escorted by Udaipur
(Rajasthan) Police from Ahmedabad to Udaipur in a train. When
the train was passing through Himatnagar-Shymlaji Stretch, the
deceased sought permission to go to the toilet. The policemen
F escorted him to the toilet where two of his accomplices
disguised as passengers attacked the policemen by throwing
chilli powder in their eyes. When the policemen called for the
other members of the escort party, the goons fired at them and
jumped off the moving train. In response, the police opened fire
G but the accused fled in the cover of darkness after shooting
back at the police.
(e) Pursuant to such alleged fleeing of Tulsiram Prajapati
from police custody, Mr. Dinesh Kumar, SP, Udaipur called Mr.
Vipul Agarwal, SP Banaskantha and informed him of the same.
H Thereafter, local police of Banaskantha headed by Mr. Vipul
NARMADA BAI v. STATE OF GUJARAT AND ORS.
739
[P. SATHASIVAM, J.]
Agarwal under direct supervision of Mr. D.G. Vanzara, Range
A
DIG, swung into action and registered an FIR being Crime
Register No. 115 of 2006 at Ambaji Police Station;
Banaskantha, on 28.12.2006 at 8.00 hrs. claiming that Tulsiram
Prajapati had been killed in an encounter.
(f) It is further alleged that when patrolling was carried out,
B
three persons tried to stop one Matador van but the vehicle did
not stop there. It has also been alleged that a police jeep of
Mr. A.A. Pandya, SI w~s coming behind the Matador and the
said three persons tried to stop it. On stopping the police jeep,
Mr. Narayansinh Fatehsinh Chauhan, ASI recognized one of the
C
three persons in the light of jeep as the absconding Tulsiram
Prajapati. On seeing that, the deceased took out a weapon kept
in the nylon belt on his waist and fired which hit the left side of
the mudguard of the police jeep and ran away in the darkness.
While running, they fired at the police party in which one bullet
D
hit at the left shoulder of Shri A.A. Pandya, SI. It is alleged that
· in self-defence Shri A.A. Pandya fired two rounds from his
service revolver and Mr. Narayansinh Fatehsinh Cha.uhan and
Mr. Yuddharamsinh Nathusinh Rajput, Rajasthan police
constables also fired from their weapons. On account of the
E
firing by the police party, bullets hit Tulsiram Prajapati and he
fell down on road side and the other two persons ran away and
could not be traced. Thereafter, he was taken to Ambaji
Cottage Hospital where he was declared dead by the doctor
ond~.
·
F
(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, Geet.a
Johrl, ·Inspector General of Police. The aforesaid facts create
G
a strong suspicion on the conduct of respondent Nos. 6 to 19
and the petitioner has every reason to believe that her sonTulsiram Prajapati has been killed by them in a fake. encounter.
She also alleged that the. respondents/accused officers enjoy
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740
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A powei'ful position in their respective State Police and are trying
to obstruct further inquiry into the fake encounter killing of her
son, who was a material witness in the case of fake encounter
of Sohrabuddin and his wife Kausarbi. Hence, the petitioner
has preferred this petition before this Court praying for direction
B to CBI to register an FIR and investigate the case.
3. Stand of the State of Gujarat - respondent No.1
(a) Shri l.M. Desai, Deputy Inspector General of Police, CID
(Crime), Gujarat State filed an affidavit wherein it was stated
C that the present petition under Article 32 of the Constitution is
not maintainable as the case registered in respect of death of
the petitioner's son in police firing on 28.12 .2006 was under
investigation. The Writ Petition (Crl.) No. 6 of 2007 being a
Habeas Corpus was entertained by this Court as an
D exceptional case and, therefore, the same cannot be cited as
a precedent. It was further stated in the said affidavit that
Tulsiram Prajapati was a dreaded inter-state criminal and was
also known as Tulsiram Prajapati @ Prafull @ Samir son of
Ganga Ram Prajapati involved in 21 criminal cases and he was
E killed on 28.12.2006 in police firing after escaping from police
custody. In respect of the same, an FIR was registered in
Ahmedabad Railway Police Station of Gujarat vide CR No.
294/06 under Sections 307, 224, 225, 34 of Indian Penal Code
(in short "IPC") and Section 25(1)(AB) of the Arms Act, 1959
F and Section 135 of Bombay Police Act, 1951.
(b) According to the State, after escaping from the Police
Custody, Tulsiram Prajapati was again confronted by Gujarat
Police and Rajasthan Police and was killed in police firing for
which an FIR was registered in Ambaji Police Station vide CR
G No. 115 of 2006 dated 28.12.2006 under Sections 307, 427,
34 of IPC and Section 25(1)(C) of the Arms Act, 1959 and
Section 135 ofthe,Bombay Police Act, 1951. Since the cases
in 'respect of the above two incidents had already been
registered in the Police Stations, there is no need to register
H a fresh case as claimed by the petitioner. It was further stated
NARMADA BAI v. STATE OF'GUJARAT AND ORS. 741
[P. SATHASIVAM, J.]
that Tulsiram Prajapati was not a matehal witness in the case
A
of SohrabUddin. He also denied that any such incident had
taken place within the premises of Udaipur Central Jail as
claimed by the petitioner on 25.03.200!;; but t~erE~ was a quarrel
among the prisoners on. 24.03.2006 in the Court lock-up for
which a criminal case was registered at Bhopalpura Police
B
Station in C.R.No. 131of2006 under Sections 341, 323, 506
and 34 IPC.
'
..
(c) As regards the. complaint made to the NHRC,
investigation carried out so far revealed that no '.such conspiracy' C
amongst the police officers of Maharashtra, Gujarat, Madhya
Pradesh and Rajasthan has come on record. The deceased ·
also never showed any apprehension to the petitioner about·
danger. to his life from marble dealers or police. officers of
Udaipur: The. petitioner's claim about Tulsiram Prajapati's
apprehension to his life is at the most hearsay and based on
D
extraneous con~iderations.
~·
•t
(d) The claim thafthe deceased-Tulsiram Prajapati was
highly inconvenient witness for respondent Nos. 6-19 is without
substance as respondent No. 10 - Mr. V.L. Solanki, an inquiry
E
officer, has stated in respect of alleged killing of Sohrabuddin.
that during preliminary enquiry there was· no link between
Tulsiram Prajapati and the death of Sohrabuddin and his wife
Kausarbi in an encounter. The same view has been expressed·
by Ms. Geeta Johri, IGP under whose direct supervision the . F
case relating to Sohrabuddin was investigated. The 'third;
person' allegedly present at the time of abduction of
Sohrabuddin and Kausarbi was Kalimuddin and not Tulsiram
Prajapati.
. .
,
(e) In the subsequent affidav.it dated 19.08.2010,
G
Dashrathbhai, R. Patel,, Under Secretary, Gqvernrnent .of
Gujarat, Home Department has stated that the State CID
(Crime) has filed a charge-sheet which is the subject-matter.of
present writ petition. It is the consistent.stand of.the. State that
the eneounter killing of Tulsiram Prajapati (subject-matter of Writ
H
742
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A Petition (Crl.) No. 115 of 2007) has nothing to do with the killing
of Sohrabuddin and Kausarbi (which was the subject-matter
decided by this Court in Writ Petition (Crl.) No. 6 of 2007).
B
4. Stand of Mr. Amit Shah - respondent No.2:
(a) The present writ petition is an abuse of the process of
law by/at the behest of political party controlling the CBI.
(b) The investigation in a criminal case normally takes
place in accordance with the procedure prescribed under the
c Code of Criminal Procedure (in short 'the Cr.P.C.') and by the
normal investigating agency prescribed. The Constitutional
Court can direct deviation from such statutorily prescribed
method of investigation and direct an outside agency like the
CBI to step in and investigate an offence only in extraordinary
0
circumstances and in rarest of rare cases. The petitioner has
not led factual foundation of facts to hold that the present case
is one of the rarest of rare cases which requires deviation from
the statutorily prescribed mode of investigation.
(c) On perusal of both the investigations and charge-sheet
E which are filed in both the offences, it is seen that there is no
credible evidence to support the view that Tulsiram Prajapati
was that 'third person' and the evidence which the CBI is relying
on is clearly fabricated being based on the unreliable
statements of witnesses. On the other hand all available
F evidence points to the fact that the 'third person' could only be
Kalimuddin @ Naimuddin who is under the protection of the
Andhra Pradesh Police. The CBI is seeking to take over
Tulsiram Prajapati's encounter case only to fabricate the
evidence and to destroy the charge-sheet filed by the Gujrat
G Police in Tulsiram Prajapati's case. The status report filed by
the CBI in Sohrabuddin's case that Tulsiram Prajapati was the
'third person' which is a blatant lie. Though there is no link
between the two and yet the CBI is attempting to fabricate a
link that does not exist. Inasmuch as the CBI which has lost all
H its credibility as an independent a9ency and is being used by
NARMADA BAI v. STATE OF GUJARAT AND ORS.
743
[P. SATHASIVAM, J.] A
political party in power in the Central Government, in the
A
absence of any extraordinary circumstances having been
shown by the petitioner in the petition no direction need be
issued for handing over the investigation to the CBI and prayed
for dismissal of the writ petition.
(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.
B
6 of 2007 revealed that the alleged fake encounter of Tulsiram
C
/ 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. The investigation
further revealed that the deceased knew that his death was
D
imminent at the hands of Gujarat Police in connivance with the
Rajasthan Police as he was the prime witness to the said case.
(b) The investigation also revealed that Tulsiram Prajapati
was brought to Ahmadabad on 28.11.2006 and 12.12.2006 in
connection with the case No. 1124 of 2004 in JM Court No.
13, Ahmadabad, along with co-accused Md. Azam and around
50 police commandos were accompanied for the escort party,
whereas on 25.11.2006, Tulsiram Prajapati was brought alone
on police escort by Rajasthan Police from Udaipur Jail when
less than five police men accompanied him. After the orders
of this Court for the investigation by this agency, it emerged that
police officials of ATS, Ahmadabad were involved in the.
abduction and killing of Sohrabuddin and his wife KausarbL
E
F
(c) The murder of Tulsiram Prajapati took place on
G
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
H
744
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A 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-estoppal or res
8 judicata against prosecution.
Stand of the other respondents
6. As far as the officials of the Gujarat State Police are
concerned, they reiterated the stand taken by the State. rv)r. ·
C Dinesh Kumar, S.P. Udaipur, Rajasthan-respondent No.8 has
filed a separate counter affidavit denying all the allegations
made by the petitioner and taking the same stand as that of
the State of Gujarat and ultimately prayed for dismissal of the
writ petition.
·
D
7. In the light of the above pleadings, we heard Mr. Huzefa
A. Ahmadi, learned counsel for the writ petitioner, Mr. Ranjit
Kumar, learned senior counsel for the State of Gujarat
(re5pondent No.1 ), Mr. Ram Jethmalani, learned senior counsel
for Amit Shah (respondent No.2), Mr. K.T.S. Tulsi, learned senior
E counsel for the CBI, Mr. Deepak Prakash, learned counsel for
respondent No.8, Mr. Jaideep Gupta, learned senior counsel
for respondent No.6, Gp. Capt. Karan Singh Bhati, learned
counsel for respondent Nos. 12, 13 and 14 and Mr. H.P. Rawal,
learned ASG for the Union of India.
F
· 8. The main grievance of the petitioner is that her
deceased son .:.. Tulsiram Prajapati being a key witness to the
murder of Sohrabuddin and his wife Kausarbi, the team of Mr.
D.G. Vanzara, DIG and other officers of the State Police
G planned to do away him to avoid the interrogation by Ms. Geeta
Johri, IGP. The petitioner had also strong suspicion on the
conduct of respondent Nos. 6-19 and has every reason to
believe that her son h~.d been killed by them in a fake
encounter. It is also the apprehension of the petitioner that since·
H
t~7 respondents/accused police officers enjoy powerful position.
NARMADA f3AI v. STAIE OF GUJARAT AND ORS.
745
[P. SATHASIVAM, J.]
'.
in their respective States and they are trying t6 obstruct further
A
inquiry in the matter, prayed for entrusting the investigation to
a specialized independent agency like the CBI.
· · , 9 . .Mr. Ranjit Kumar, learned senior counsel for the State .
of Gujarat and Mr. Ram Jethmalani, learned senior counsel for
8
Mr. Amit Shah, respondent No.2, who, at the relevant time was
the Home Minister of the State, vehemently objected the claim
of the petitioner and by placing several materials submitted that
inasmuch as after proper investigation the State Police has filed
the charge-sheet, there is no need for further investigation by
C
the .CBI at this stage. They further submitted that any such
direction at this stage would delay the entire prosecution.
Key: Issues:
10. Keeping the above submissions in mind, we have to
D
first find out (a) whether after filing of the charge-sheet by the
State agency, the Court is precluded from appointing any other
independent specialized agency like the CBI to go into the same
issues if the earlier investigation was not done as per the
established procedure; and (b) subject to the answer relating
E
to the issue raised in (a) whether the petitioner has made out
a case for entrusting the investigation to the CBI.
Analysis as to issue (a):
11. The first issue i.e. (a) as in the case on hand also arose
F
in the case of Rubabbuddin Sheikh (supra). The factual details
therein will be discussed in the later paragraphs. With regard
to the similar objection as to further investigation by the CBI,
this Court·considered the following cases:
(i)
Vineet Narain vs. Union of India, (1996) 2 SCC
G
199
(ii)
Union ·of India vs. Sushi/ Kumar Modi, (1998) 8
sec 661
H
746
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A
(iii)
Rajiv Ranjan Singh 'La/an' (VIII) vs. Union of India,
B
c
(2006) 6 sec 613
(iv)
Hari Singh vs. State of U.P., (2006) 5 SCC 733
(v)
Aleque Padamsee vs. Union of India, (2007) 6
sec 111
(vi)
M. C. Mehta vs. Union of India, (2008) 1 SCC 407
(vii) R.S. Sodhi vs. State of U.P., 1994 Supp(1) SCC
143
(viii) Ramesh Kumari vs. State (NCT of Delhi}, (2006)
2 sec 677
(ix)
Kashmeri Devi vs. Delhi Administration, 1988
o
supp sec 482
(x)
Gudalure M.J. Cherian vs. Union of India, (1992)
1 sec 397; and
(xi)
Punjab & Haryana High Court Bar Asson. Vs.
E
State of Punjab, (1994) 1 SCC 616
F
G
H
and concluded in paragraphs 60 and 61 as under:
"60. Therefore, in view of our discussions made
hereinabove, it is difficult to accept the contentions of Mr
Rohatgi, learned Senior Counsel appearing for the State
of Gujarat that after the charge-sheet is submitted in the
court in the criminal proceeding it was not open for this
Court or even for the High Court to direct investigation of
the case to be handed over to CBI or to any independent
agency. Therefore, it can safely be concluded that in an
appropriate case when the court feels that the investigation
by the police authorities is not 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
NARMADA BAI v. STATE OF GUJARAT AND ORS.
747
[P. SATHASIVAM, J.]
independent agency like CBI. It cannot be said that after
A
the charge-sheet is submitted, the court is not empowered,
in an appropriate case, to hand over the investigation to
an independent agency like CBI.
61. Keeping this discussion in mind, that is to say,
in an appropriate case, the court is empowered to hand
over the investigation to an independent agency like CBI
even when the charge-sheet has been submitted, we now
deal with the facts of this case whether such investigation
should be transferred to the CBI Authorities or any other
C
independent agency in spite of the fact that the chargesheet has been submitted in court. On this ground, we
have carefully examined the eight action taken reports
submitted by the State police authorities before us and
also the various materials produced and the submissions
of the learned counsel for both the parties."
D
B
(Emphasis supplied)
It is clear, that in an appropriate case, particularly, when the
Court feels that the investigation by the State police authorities
E
is not in the proper direction as the high. police officials are
involved, in order to do completejustice, it is always open to
the Court to hand over the investigation to an independent and
specialized agency like the CBI.
12. In the light of the above principles, now let us consider
F
the second issue (b) viz., whether the investigation relating to
the encounter killing of Tulsiram Prajapati should be transferred
to the CBI in spite of the fact that the charge-sheet has been
submitted in the Court by the State Police.
13. It is the specific stand of the writ petitioner that while
considering the grievance of Rubabbuddin Sheikh about the
death of his brother Sohrabuddin in a fake encounter, the
present petitioner, mother of Tulsiram Prajapati also filed Writ
Petition (Crl.) No. 115 of 2007 and, the same was tagged along
G
H
748
SUPREME COURT REPORTS
[2011) 5 S.C.R.
A with Writ Petition (Crl.) No. 6 of 2007 which was filed by brother
of Sohrabuddin. The cause title of the case vide Rubabbuddin
Sheikh vs. State of Gujarat & Ors. (2010) 2 SCC 200 shows
that Writ Petition (Crl.) No. 115 of 2007 was heard along with
Writ Petition (Crl.) No. 6 of 2007. Though at the end of the
B judgment. this Court directed that Writ Petition (Crl.) No. 115
of 2007 be listed after eight weeks before an appropriate
Bench. 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
c Tulsiram Prajapati. It ,was also observed that call records of
Tulsiram Prajapati 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. In para 65, the following observations are relevant:
D
E
F
"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 Prajap~ti 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."
·
(Emphasis supplied)
Apart from the above conclusion, after analyzing. several Action
Taken Reports filed by the State and various circumstances and
in view of the involvement of the high police officials of the State
G in the crime therein, this Court directed the CBI to investigate
all the aspects of the case relating to the killing of Sohrabuddin
and his wife Kausarbi including the possibility of a "larger
conspiracy"'
H
14. Pursuant to the said direction, the CBI investigated the
NARMADA BAI v. STATE OF GUJARAT AND ORS.
749
[P. SATHASIVAM, J.]
cause of death of Sohrabuddin and his wife Kausarbi. The CBI,
A
in their counter affidavit, has specifically stated that as perthefr
. investigation Tulsiram Prajapati was· a key witness in the
murder of Sohrabuddin and he was the 'third person' who
a·ccompanied Sohrabuddin from Hyderabad and killing df
Tulsiram Prajapati was ·a part of the same conspiracy. It was
B
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, As against the assertion of the writ petitioner and the
stand of the CBI, Mr. Ranjit Kumar and Mr. Ram Jethmalani,
learned senior counsel appearing for respondent Nos. 1 and
2 irespectively cited several instances ahd relied oh certain
materials to show that inquiry by the CBI is not warranted.