# AMITBHAI ANILCHANDRA SHAH v. THE CENTRAL BUREAU OF INVESTIGATION & ANR

- **Citation:** [2013] 6 S.C.R. 623
- **Court:** Supreme Court of India
- **Decided:** 2013-04-08
- **Bench:** P. Sathasivam, Dr. B.S. Chauhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/amitbhai-anilchandra-shah-v-the-central-bureau-of-investigation-anr-29306
- **Pages:** 53

## Headnote

Code of Criminal Procedure, 1973 - ss.154, 155, 156,
157, 162, 169, 170 and 173(8) - Second FIR - Registration
A
B
of - Permissibility - Held: - There can be no second FIR and C
consequently, there can be no fresh investigation on receipt
of every subsequent information in respect of same
cognizable offence or the same occurrence, giving rise to one
or more cognizable offences - Sub-s. (8) of s. 173 empowers
the police to make further investigation, in such cases - In
D
the facts and circumstances of the present case, second FIR
and fresh charge--sheet is unwarranted and violative of
fundamental right u/Arts. 14, 20 and 21 of the Constitution -
Hence, the same is quashed and charge-sheet filed in
pursuance of the second FIR, directed to be regarded as a E
supplementary charge-sheet in the first FIR - Constitution of
India, 1950 - Arts. 14, 20 and 21.
Administration of Criminal Justice - Court needs to strike
balance between fundamental rights of accused and power of
police to investigate a cognizable offence - Sweeping power
F
of investigation does not warrant subjecting a citizen each
time, to fresh investigation in respect of the same incident,
giving rise to one or more cognizable offences - Code of
Criminal Procedure, 1973 - s.154 - Constitution of India,
1950 - Fundamental Rights.
G
In the writ petition [Rubabuddin sheikh vs. State of
Gujarat and Ors. (2010) 2 SCC 200], Supreme Court
entrusted the investigation regarding fake encounter of
623
H
'
624
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A 'S' and abduction of 'K' (wife of 'S') by the Gujarat police
authorities (including the petitioners in the present case)
to CBI from State police. The Court also expressed a
suspicion that the killing of 'TP' -(a close associate of 'S')
could be the part of the conspiracy of killing of 'S' and
B abduction of 'K'. CBI, pursuant thereto lodged first FIR
against the present writ petitioners.
In another writ petition by mother of 'TP' (Narmada
Bai vs. State of Gujarat and Ors. (2011) 5 SCC 79),
Supreme Court rejected the investigation conducted by
C the State Police and entrusted the investigation regarding
disappearance and death of 'TP' to CBI. CBI lodged
second FIR in respect of death of 'TP' against the writ
petitioners in the present case.
D
The accused Nos.1 and 3 in the second FIR, filed the
present writ petitions on the ground that the second FIR
was violative of their fundamental rights under Articles 14,
20 and 21 of the Constitution and contrary to the
directions given in Narmada Bai's case and prayed for
E quashing the second FIR and to treat the charge-sheet
in respect of the second FIR as supplementary chargesheet in the first FIR.
Allowing the petitions, the Court
F
HELD: 1.1. The various provisions of the Cr.P.C.
clearly show that an officer-in-charge of a police station
has to commence investigation as provided in Section
156 or 157 Cr.P.C. on the basis of entry of the First
Information Report, on coming to know of the
G commission of cognizable offence. On completion of
investigation and on the basis of evidence collected,
Investigating Officer has to form an opinion under Section
169 or 170 Cr.P.C. and forward his report to the
concerned Magistrate under Section 173(2) Cr.P.C .. Even
H after filing of such a report, if he comes into possession
AMITBHAI ANILCHANDRA SHAH v. CENTRAL
625
BUREAU OF INVESTIGATION
of further information or material, there is no need to A
register a fresh FIR, he is empowered to make further·
investigation normally with the leave of the Court and
where during further investigation, he collects further
evidence, oral or documentary, he is obliged to forward
the same with one or more further reports which is B
evident from sub-section (8) of s.173 Cr.P.C .. Under the
scheme of the provisions of ss.154, 155, 156, 157, 162,
169, 170 and 173 Cr.P.C., ·only the earliest or the first
information in regard to the commission of a cognizable
offence satisfies the requirements of s.154 Cr.P.C .. Thus, c
th

## Text

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[2013] 6 S.C.R. 623
AMITBHAI ANILCHANDRA SHAH
v.
THE CENTRAL BUREAU OF INVESTIGATION & ANR.
(Writ Petition (Criminal) No. 149 of 2012)
APRIL 8, 2013
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
Code of Criminal Procedure, 1973 - ss.154, 155, 156,
157, 162, 169, 170 and 173(8) - Second FIR - Registration
A
B
of - Permissibility - Held: - There can be no second FIR and C
consequently, there can be no fresh investigation on receipt
of every subsequent information in respect of same
cognizable offence or the same occurrence, giving rise to one
or more cognizable offences - Sub-s. (8) of s. 173 empowers
the police to make further investigation, in such cases - In
D
the facts and circumstances of the present case, second FIR
and fresh charge--sheet is unwarranted and violative of
fundamental right u/Arts. 14, 20 and 21 of the Constitution -
Hence, the same is quashed and charge-sheet filed in
pursuance of the second FIR, directed to be regarded as a E
supplementary charge-sheet in the first FIR - Constitution of
India, 1950 - Arts. 14, 20 and 21.
Administration of Criminal Justice - Court needs to strike
balance between fundamental rights of accused and power of
police to investigate a cognizable offence - Sweeping power
F
of investigation does not warrant subjecting a citizen each
time, to fresh investigation in respect of the same incident,
giving rise to one or more cognizable offences - Code of
Criminal Procedure, 1973 - s.154 - Constitution of India,
1950 - Fundamental Rights.
G
In the writ petition [Rubabuddin sheikh vs. State of
Gujarat and Ors. (2010) 2 SCC 200], Supreme Court
entrusted the investigation regarding fake encounter of
623
H
'
624
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A 'S' and abduction of 'K' (wife of 'S') by the Gujarat police
authorities (including the petitioners in the present case)
to CBI from State police. The Court also expressed a
suspicion that the killing of 'TP' -(a close associate of 'S')
could be the part of the conspiracy of killing of 'S' and
B abduction of 'K'. CBI, pursuant thereto lodged first FIR
against the present writ petitioners.
In another writ petition by mother of 'TP' (Narmada
Bai vs. State of Gujarat and Ors. (2011) 5 SCC 79),
Supreme Court rejected the investigation conducted by
C the State Police and entrusted the investigation regarding
disappearance and death of 'TP' to CBI. CBI lodged
second FIR in respect of death of 'TP' against the writ
petitioners in the present case.
D
The accused Nos.1 and 3 in the second FIR, filed the
present writ petitions on the ground that the second FIR
was violative of their fundamental rights under Articles 14,
20 and 21 of the Constitution and contrary to the
directions given in Narmada Bai's case and prayed for
E quashing the second FIR and to treat the charge-sheet
in respect of the second FIR as supplementary chargesheet in the first FIR.
Allowing the petitions, the Court
F
HELD: 1.1. The various provisions of the Cr.P.C.
clearly show that an officer-in-charge of a police station
has to commence investigation as provided in Section
156 or 157 Cr.P.C. on the basis of entry of the First
Information Report, on coming to know of the
G commission of cognizable offence. On completion of
investigation and on the basis of evidence collected,
Investigating Officer has to form an opinion under Section
169 or 170 Cr.P.C. and forward his report to the
concerned Magistrate under Section 173(2) Cr.P.C .. Even
H after filing of such a report, if he comes into possession
AMITBHAI ANILCHANDRA SHAH v. CENTRAL
625
BUREAU OF INVESTIGATION
of further information or material, there is no need to A
register a fresh FIR, he is empowered to make further·
investigation normally with the leave of the Court and
where during further investigation, he collects further
evidence, oral or documentary, he is obliged to forward
the same with one or more further reports which is B
evident from sub-section (8) of s.173 Cr.P.C .. Under the
scheme of the provisions of ss.154, 155, 156, 157, 162,
169, 170 and 173 Cr.P.C., ·only the earliest or the first
information in regard to the commission of a cognizable
offence satisfies the requirements of s.154 Cr.P.C .. Thus, c
there can be no second FIR and, consequently, there can
be no fresh investigation oh receipt of every subsequent
information in respect of the same cognizable offence or
· the same occurrence or incident giving rise to one or
more cognizable offences. [Paras 52(b) and (c)] [671-E0
H; 672-A-C]
1.2. On receipt of information about a cognizable
offence or an incident giving rise to a cognizable offence
or offences and on entering FIR in the Station House
Diary, the officer-in-charge of the police station has to E
investigate not merely the cognizable offence reported in
the FIR but also other connected offences found to have
been committed in the course of the same transaction or
the same occurrence and file one or more reports as
provided in s. 173 Cr.P.C .. Sub-s. (8) of s.173 Cr.P.C.
F
empowers the police to make further investigation, obtain
further evidence (both oral and documentary) and
forward a further report (s) to the Magistrate. A case of
fresh investigation based on the second or successive
FIRs not being a counter case, filed in connection with G
the same or connected cognizable offence alleged to
have been committed in the course of the same
transaction and in respect of which pursuant to the first
FIR either investigation is underway or final report u/s.
173(2) has been forwarded to the Magistrate, is liable to H
626
SUPREME COURT REPORTS
(2013] 6 S.C.R.
A
be interfered with by the High Court by exercise of power
u/s.482 Cr.P .C. or u/Arts. 226/227 of the Constitution. [Para
52(d)] [672-C-G]
1.3. First Information Report is a report which gives
8
first information with regard to any offence. There cannot
be second FIR in respect of the same offence/event
because whenever any further information is received by
the investigating agency, it is always in furtherance of the
first FIR. [Para 52(e)] [672-G-H; 673-A]
C
Upkar Singh vs. Ved Prakash (2004) 13 SCC 292;
Babubhai vs. State of Gujarat and Ors. (2010) 12 SCC
254: 2010 (10) SCR 651; Chirra Shivraj vs. State of A.P. AIR
2011 SC 604: 2010 (15) SCR 673; C. Muniappan vs. State
of Tamil Na du (2010) 9 SCC 567: 2010 (10) SCR 262;
D Babula/ vs. Emperor AIR 1938 PC 130; S. Swamirathnam vs.
E
State of Madras AIR 1957 SC 340; State of A.P. vs.
Kandimalla Subbaiah and Anr. AIR 1961 SC 1241; State of
A.P. vs. Cheema/apati Ganeswara Rao and Anr. AIR 1963 SC
1850: 1964 SCR 297 - relied on.
Anju Chaudhary vs. State of U.P. and Anr. 2012(12)
Scale 619;Babubhai vs. State of Gujarat (2010) 12 SCC 254:
2010 (10) SCR 651; Surender Kaushik and Ors. vs. State of
U.P. and Ors. JT 2013 (3) SC 472; Nirmal Singh Kah/on vs.
State of Punjab (2009) 1 SCC 441: 2008 (14) SCR 1049;
F
Ram Lal Narang vs. State (Delhi Admn.) (1979) 2 SCC 322;
Upkar Singh vs. Ved Prakash and Ors. (2004) 13 SCC 292;
Karl Choudhary vs. Mst. Sita Devi and Ors. (2002) 1 SCC 714:
2001 (5) Suppl. SCR 588 - distinguished.
G
2.1. In the present case according to the CBI itself, it
is the case where the larger conspiracy allegedly
commenced in November, 2005 and culminated into the
murder of 'TP' in December, 2006 in a fake encounter; the
alleged fake encounter of 'TP' was a consequence of
H earlier false encounter of 'S' and 'K' since 'TP' was an eye-
AMITBHAI ANILCHANDRA SHAH v. CENTRA.L
627
BUREAU OF INVESTIGATION
•
witness to the abduction and consequent murders of 'S' A
and 'K'; and 'TP' was allegedly kept under the control of
accused police officers, as a part of the same conspiracy,
till the time he was allegedly killed in a fake encounter.
[Para 33] [662-G-H; 663-A-B]
2.2. The charge-sheet dated 23.07.2010 filed by the 8
CBI in the first FIR clearly show that CBI was very
categorical that killing of 'TP' was also a part of the very
same conspiracy as alleged in the first FIR. Apart from the
above specific stand, CBI filed supplementary chargesheet dated 22.10.2010 in the first FIR which clearly show C
that killing of 'TP' was a fake encounter and was part of
the same series of acts so connected together that they
form part of the same conspiracy as alleged in the first
FIR. In view of the same, there cannot be a second FIR
dated 29.04.2011 and fresh charge-sheet dated 04.09.2012 D
for killing of 'TP'. [Paras 21-22] [641-D-E; 642-H; 643-A, DJ
2.3. During pendency of Writ Petition (Narmada Bai
case), the CBI, in its affidavit prayed for "further
investigation" in the first FIR. Thus, it leaves no room for E
doubt that the CBI itself prayed for "further investigation"
so as to enable it to "complete the investigation in first
FIR" filed by the CBI, i.e., FIR dated 01.02.2010 by
investigating encounter of 'TP'. [Paras 23 and 24] [643E; 644-E-F]
F
2.4. Petitioner No. 1 was arrested in the first FIR and
charge-sheet dated 23.07 .2010, and was further
interrogated even on the question of alleged killing of
'TP'. When petitioner No.1 filed regular bail application,
the CBI had opposed the same contending that the G
alleged killing of 'TP' as a part of the same series of acts,
viz., killing of 'S' and 'K'. [Para 27] [S51-F-G]
2.5. The findings rendered in Narmada Bai case
clearly show the acceptance of the contentions raised by
the CBI that killing of two individuals and killing of third H
628
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A
person, viz., 'TP' were part of the very same conspiracy
and in the same series of acts so connected together that
they will have to be tried in one trial u/s. 220 Cr.P.C ..
After the investigation of the second FIR, the CBI filed
charge-sheet dated 04.09.2012 wherein, among others,
B
the petitioner was also arrayed as one of the accused. The
details mentioned in the charge-sheet dated 04.09.2012
clearly show that what the CBI has conducted is mere
'further investigation' and the alleged killing of 'TP' was
in continuance of and an inseparable part of the
c conspiracy which commenced in November, 2005 by
abduction of 'S', 'K' and 'TP' and which culminated into
the final stage of alleged killing of 'TP' who was kept
under the control of accused police officers since he was
a material eye-witness like 'K'. Thus, the charge-sheet
0
dated 04.09.2012 itself is conclusive to show that the said
charge-sheet, in law and on facts, deserves to be treated
as 'supplementary charge-sheet in the first FIR'. [Paras
28 and 30) [655-F-H; 658-G-H; 659-A-B]
2.6. In view of the factual situation as projected by
- E the CBI itself, merely because two separate complaints
had been lodged, did not mean that they could not be
clubbed together and one charge-sheet could not be
filed. In view of the consistent stand taken by the CBI, at
this juncture, CBI may not be permitted to adopt a
F
contradictory stand. [Paras 33 and 34) [663-C-D]
G
T. T. Anthony vs. State of Kera/a (2001) 6 SCC 181: 2001
(3) SCR 942; C. Muniappan and Ors. vs. State of Tamil Nadu
(2010) 9 SCC: 2010 (10) SCR 262 - relied on.
2. 7. The factual details show that right from the
inception of entrustment of investigation to the CBI by
order dated 12.01.201 O till filing of the charge-sheet dated
04.09.2012, this Court has also treated the alleged fake
encounter of 'TP' to be an outcome of one single
H conspiracy alleged to have been hatched in November,
AMITBHAI ANILCHANDRA SHAH v. CENTRAL
629
BUREAU OF INVESTIGATION
2005 which ultimately culminated in 2006. In such
A
circumstances, the filing of the second FIR and a fresh
charge-sheet foi"the same is contrary to the provisions
of Cr.P.C. suggesting that the petitioner was not being
investigated, prosecuted and tried 'in accordance with
law' . [Para 31] [659-C-E]
B
2.8. The observations, findings and directions in
Rubabbuddin Sheikh case clearly show that the alleged
killing of 'TP' was thus perceived even by this Court to
be an act forming part of the very same transaction and
C
same conspiracy in which the offence of killing of 'S' and
'K' took place. The CBI also, upon investigation held that
"strong suspicion expressed by this Court in the above
judgment was true and filed charge sheet/s". [Para 19]
·, [641-A-B]
2.9. This Court accepting the plea of the CBI in
Narmada Bai case that killing of 'TP' was part of .the same
series of cognizable offence forming part of the first FIR
directed the CBI to "take over" the investigation and did
D
not grant the relief prayed for i.e., registration of a fresh
E
FIR. Accordingly, filing of a fresh FIR by the CBI is
contrary to various decisions of this Court. [Para 52(a)]
[671-D]
2.10. A second FIR in respect of an offence or
different offences committed in the course of the same
transaction is not only impermissible but it violates Article
F
21 of the Constitution. Thus, in the light of the specific
stand taken by the CBI before this Court in the earlier
proceedings by way of assertion in the form of counter
affidavit, status reports, etc., filing of the second FIR and
G
fresh charge-sheet is violative of fundamental rights
under Article 14, 20 and 21 of the Constitution since the
same relate to alleged offence in respect of which an FIR
had already been filed and the court has taken
cognizance. [Paras 32 and 53] [659-F; 674-E-F]
H
630
SUPREME COURT REPORTS
(2013] 6 S.C.R.
A
T. T. Anthony vs. State of Kera/a (2001) 6 SCC 181: 2001
(3) SCR 942 - relied on.
2.11. Thus, the second FIR dated 29.04.2011 filed by
the CBI is contrary to the directions issued in judgment
B and order dated 08.04.2011 by this Court in Writ Petition
(Narmada Bai case) and accordingly the same is
quashed. As a consequence, the charge-sheet filed on
04.09.2012, in pursuance of the second FIR, be treated as
a supplementary charge sheet in the first FIR. [Para 54]
C [675-A-B]
D
Narmada Bai vs. State of Gujarat and Ors. (2011) 5 SCC
79: 2011 (5) SCR 729; Rubabbuddin Sheikh vs. State of
Gujarat and Ors. (2010) 2 SCC 200: 2010 (1) SCR 991 -
referred to.
3. Administering criminal justice is a two-end
process, where guarding the ensured rights of the
accused under Constitution is as imperative as ensuring
justice to the victim. Thus, a just balance between the
E fundamental rights of the accused guaranteed under the
Constitution and the expansive power of the police to
investigate a cognizable offence has to be struck by the -
court. Accordingly, the sweeping power of investigation
does not warrant subjecting a citizen each time to fresh
F investigation by the police in respect of the same incident,
giving rise to one or more cognizable offences. As a
consequence, this is a fit case for quashing the second
FIR to meet the ends of justice. [Para 52(i)] [673-H; 674A-C]
G
H
Case Law Reference
2011 (5) SCR 729
2010 (10) SCR 262
2010 (1) SCR 991
referred to
relied on
referred to
Para 1
Para 7
Para 17
AMITBHAI ANILCHANDRA SHAH v. CENTRAL
631
BUREAU OF INVESTIGATION
2001 (3) SCR 942
relied on
Para 32
A
(2004) 13 sec 292
relied on
Para 33
2010 (10) SCR 651
relied on
Para 33
2010 (15) SCR 673
relied on
Para 33
B
2010 (10 ) SCR 262
relied on
Para 33
AIR 1938 PC 130
relied on
Para 36
AIR 1957 SC 340
relied on
Para 37
AIR 1961 SC 1241
relied on
Para 38
c
1964 SCR 297
relied on
Para 39
2012(12) Scale 619
distinguished
Para 41
2010 (10) SCR 651
distinguished
Para 42
D
JT 2013 (3) SC 472
distinguished
Para 43
2008 (14) SCR 1049
distinguished
Para 44
(1979) 2 sec 322
distinguished
Para 45
(2004) 13 sec 292
distinguished
Para 48
E
2001 (5) Suppl. SCR 588 distinguished
Para 49
CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.)
No. 149 of 2012.
F
Under Article 32 of the Constitution of India.
WITH
W.P.(Crl.} No. 5 of 2013
H.P. Raval, ASG, Mahesh Jethmalani, K.V. Viswanathan, G
Mukul Gupta, Adish C Aggarwala, Tushar Mehta, AAG, Pranav
Badheka, Devang Vyas, Shally Bhasin Maheshwari, S.S.
Shamshery, Shubhashis R. Soren, V.M. Vishnu, Bharat Sood,
Ruchi Kohli, Ritin Rai, Siddhartha Dave, Anando Mukherjee,
H
632
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A
Maheen N. Pradhan, B.V. Bairam Das, Subramonium Prasad,
Ejaz Khan, Hemantika Wahi, S.S. Nehra, Sandeep Garg,
Sudhir Aggrawal, Nirnimesh Dube for the Appearing Parties.
The Judgment of the Court was delivered by
B
P. SATHASIVAM, J. 1. Amitbhai Anilchandra Shah has
filed the present Writ Petition being No. 149 of 2012 under
Article 32 of the Constitution of India owing to the filing of fresh
FIR being No. RC-3(S)/2011/Mumbai dated 29.04.2011 by the
Central Bureau of Investigation (CBI) and charge sheet dated
C 04.09.2012 arraying him as an accused in view of the directions
given by this Court to the Police Authorities of the Gujarat State
to handover the case relating to the death of Tulsiram Prajapati
- a material witness to the killings of Sohrabuddin and his wife
Kausarbi to the CBI in Narmada Bai vs. State of Gujarat &
D ors., (2011) s sec 79.
2. In Narmada Bai (supra), this Court, taking note of the
fact that the charge sheet has been filed by the State of Gujarat
after a gap of 3Y:z years and also considering the nature and
E
gravity of the crime, rejected the investigation conducted/
concluded by the State Police and directed the State police
authorities to handover the case to the CBI. After investigation,
the CBI filed a fresh FIR dated 29.04.2011 against various
police officials of the States of Gujarat and Rajasthan and others
for acting in furtherance of a criminal conspiracy to screen
F
themselves from legal consequences of their crime by causing
the disappearance of human witness, i.e., Tulsiram Prajapati,
by murdering him on 28.12.2006 and showing it off as a fake
encounter. Though the said FIR did not specifically name any
person, in the charge sheet dated 04.09.2012 filed in the said
G FIR before the Court of Judicial Magistrate First Class, Danta
District, Banaskantha, Gujarat, the petitioner herein was
arrayed as A-1. Further, due to lack of jurisdiction, the charge
sheet was presented before the 2nd Additional Chief Judicial
Magistrate, (First Class), (CBI Court No. 1), Ahmedabad,
H Gujarat.
AMITBHAI ANILCHANDRA SHAH v. CENTRAL
633
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.]
3. Being aggrieved by the fresh FIR dated 29.94.2011 and
A
charge sheet dated 04.09.2012, the petitioner herein has filed
the above said writ petition on the ground of it being violative
of his fundamental rights under Articles 14, 20 and 21 of the
Constitution and contrary to the directions given in Narmada
Bai (supra).
B
Writ Petition (Criminal) No. 5 of 2013:
4. Sangiah Pandiyan Rajkumar IPS-who was arrayed as
A-3 in the charge sheet dated 04.09.2012 has filed the above
said writ petition praying for similar relief as sought for in Writ C
Petition (Crl.) No. 149 of 2012. Since the grievance of the
above-said petitioner is similar to that of the petitioner in W.P.
(Crl.) No. 149 of 2012, there is no need to traverse those details
once again.
D
5. Heard Mr. Mahesh Jethmalani, learned senior counsel
for the petitioner in W.P. (Crl.) No. 149 of 2012, Mr. K.V.
Viswanathan, learned senior counsel for the petitioner in W.P.
(Crl.) No. 5 of 2013, Mr. H.P. Rawal, learned Additional Solicitor
General for the CBI and Mr. Tushar Mehta, learned Additional
E
Advocate General for the State of Gujarat.
Discussion:
6. A perusal of the prayer in the writ petition clearly stiows
that the petitioner is not seeking quashing of investigation,
F
however, praying for quashing of second FIR being No. RC3(S)/2011/Mumbai dated 29.04.2011 and also praying that the
charge sheet dated 04.09.2012 in respect of the said FIR be
treated as supplementary chargesheet in first FIR being No. RC
No. 4S of 2010 so that his fundamental right under Article 21
G
is not infringed.
7. Mr. Mahesh Jethmalani, learned senior counsel for the
petitioner pointed out that the reliefs sought for are in
consonance with the law laid down by this Court in· C.
Muniappan & Ors. vs. State of Tamil Nadu (2010) 9 SCC 567.
H
634
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A
He very much relied on para 37 of the said judgment which
holds as under:
B
" ..... Merely because two separate complaints had been
lodged, did not mean that they could not be clubbed
together and one charge sheet could not be filed"
8. It is also pointed out by learned senior counsel for the
petitioner-Amit Shah that the above said prayer is based upon
CBl's own finding that the offence covered by the Second FIR
is part of the same conspiracy and culminated into the same
C
series of acts forming part of the same transaction in which the
offence alleged in the first FIR was committed. It is also pointed
out that it is the case of the CBI itself before this Court that even
the charges will have to be framed jointly and one trial will have
to be held as contemplated under Section 220 of the Code of
D
Criminal Procedure, 1973 (in short 'the Code'). It is further
pointed out that as per the CBI, the alleged criminal conspiracy
commenced when Sohrabuddin and Kausarbi (whose deaths
were in question in the first FIR) and Tulsiram Prajapati (whose
death was in question in the second FIR) were abducted from
E
Hyderabad after which Sohrabuddin was allegedly killed on 25/
26.11.2005 and Kausarbi and Tulsiram Prajapati were killed
thereafter since they were, as per CBI, the eye-witnesses.
Finally, it is highlighted that the competent jurisdictional court
has already taken cognizance of all the three alleged killings
F
in the chargesheeVchallan filed by the CBI in the first FIR itself.
9. Before going into the factual matrix as projected by
learned senior counsel for the petitioner, it is desirable to refer
to the stand taken by the CBI.
G
10. It is the definite case of the CBI that the abduction of
Sohrabuddin and Kausarbi and their subsequent murders as
well as the murder of Tulsiram Prajapati are distinct offences
arising out of separate conspiracies though inter-connected with
each other as the motive behind the murder of Tulsiram
H
Prajapati was to destroy the evidence in respect of the
AMITBHAI ANILCHANDRA SHAH v. CENTRAL
635
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.)
abduction of Sohrabuddin and Kausarbi, as he was a prime A
witness to the said incident. It is not in dispute that as per the
scheme prescribed in the Code, once a complaint is received
with respect to a cognizable offence, the investigating authority
is duty bound to register an FIR and, thereafter, initiate
investigation.
B
11. Mr. Rawal, learned Additional Solicitor General·
appearing for the CBI, by drawing our attention to Section 218
of the Code submitted that a distinct charge is to be framed
for a distinct offence, i.e., there has to be a separate charge C
for separate offence and each distinct charge has to be tried
separately. He further pointed out that the concept of joint trial,
which is an exception and not the rule cannot be made
applicable to the stage either of investigation or the filing of
charge sheet of a report under Section 173(2) of the Code. He
also highlighted that in the Code, there is no concept of joint D
investigation. The only exception is under Sections 219 and 220
of the Code that a person can be tried at one trial for more
offences than one committed within a period of one year. He
also pointed out that there is no bar in law to file separate FIR/
complaint in respect of two distinct offences and similarly there E
is no bar to file two separate charge-sheets for seeking
prosecution of accused in two distinct offences. He further
highlighted that in T. T. Anthony vs. State of Kera/a (2001) 6
sec 181, the principle that was laid down with regard to the
bar of filing of the second FIR was only in respect of the same F
incident or occurrence. According to him, whether the offences
are distinct or same would necessarily have to be examined in
the facts and circumstances of each case. He also submitted
that the facts urged in the affidavit were on the basis of mere
suspicion, hence, CBI cannot be held to be bound by its initial G
response in the status report or the affidavit since on a
complete investigation, it is revealed that not only both the
offences are distinct and separate but both the conspiracies
were also hatched at different points of time. It is also pointed
out by the CBI that the abduction and subsequent murder of H
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SUPREME COURT REPORTS
[2013] 6 S.C.R.
A
Sohrabuddin and the murder of Tulsiram Prajapati after a
period of more than one year are separate and distinct
offences. According to him, the material available with the CBI
would show distinct and separate conspiracy to eliminate
Sohrabuddin and, thereafter, another conspiracy was hatched
B
in order to eliminate Tulsiram Prajapati as soon as the accused
persons apprehended that Tulsiram Prajapati would spill the
beans with respect to elimination of Sohrabuddin in a fake
encounter.
12. It is the definite case of the CBI that the investigation
C has revealed that subsequent to the murder of Hamid Lala,
Sohrabuddin and Tulsiram Prajapati continued their criminal
activities in the States of Maharashtra, Rajasthan and Gujarat.
However, Sohrabuddin remained elusive and beyond the reach
of the Gujarat Police. It was, therefore, that the accused Amit
D Shah (petitioner herein), D.G. Vanzara, S. Pandiyan Rajkumar,
Dinesh Man and others entered into a consp.iracy to abduct and
murder Sohrabuddin. Accordingly, D.G. Vanzara, with the aid
of Abhay Chudasma, S.P. Valsad had Tulsiram Prajapati, an
associate of Sohrabuddin, in order to trace Sohrabuddin. Whilst
E
giving such directions, D.G. Vanzara also assured Tulsiram ·
Prajapati that he would ensure safe passage for him as he
would be implicated in some petty cases. It was after this
assurance from D.G. Vanzara and Abhay Chudasma that
Tulsiram Prajapati agreed to help them in tracing and locating
F
Sohrabuddin. Accordingly, Tulsiram Prajapati, in accordance
with his clandestine agreement with the Gujarat Police,
informed them in advance about the plan of Sohrabuddin to
travel to Sangli from Hyderabad and, thereafter, Sohrabuddin
was abducted and murdered. By pointing out the above factual
G details, it is the stand of the CBI that the first conspiracy took
place to eliminate Sohrabuddin with the help of Tulsiram
Prajapati who agreed to trace and locate him after the
assurances given by the Gujarat Police. Thus, in the aforesaid
conspiracy, Tulsiram Prajapati can be said to be a part of the
H said conspiracy though not knowing the motive about the same.
AMITBHAI ANILCHANDRA SHAH v. CENTRAL·
637
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.]
13. It is further pointed out that in pursuance of the
A
aforesaid criminal conspiracy, Sohrabuddin, Kausarbi and
Tulsiram Prajapati were brought to Valsad, Gujarat in vehicles
by Gujarat Police. From Valsad, Tulsiram Prajapati was allowed
to return to Bhilwara, Rajasthan by the police party.
Subsequently, Sohrabuddin was murdered and shown as if he
B
was a Lashkar-e-Taiba terrorist killed in an encounter with a
police party on 26.11.2005 at Ahmedabad while his wife
Kausarbi was murdered on 29/30.11.2005 and her body was
disposed off. Tulsiram Prajapati was shown to be arrested on
29.11.2005. Since then, he had been lodged in Udaipur Jail c ..
till he met his fate.
14. The most vital evidence that seems to have triggered
Tulsiram Prajapati's death is a letter of Shri V.L Solanki dated
18.12.2006 seeking permission to interrogate Tulsiram
Prajapati and Sylvester lodged in Udaipur Jail. On the very
D
same letter, Ms. Geetha Johri, head of the SIT is alleged to
have recorded that even she may be given permission to
accompany the 10 for interrogation. Thereafter, the said letter
is alleged to have been endorsed by Ms. Geetha Johri to Shri
G.C. Raiger, Additional DGP, CID. It is further pointed out that
E
the said letter of Shri V.L Solanki containing the note of Ms.
Geetha Johri was not found in the official file. In its place, a
fabricated note dated 05.01.2007 along with a noting of Shri
G.C. Raiger dated 06/08.01.2007 was found in the file in which
it was recorded as under:-
F
"13(d) To go to Udaipur to interrogate accused Sylvester
and Tulsi Prajapati (both being allegedly primary witnesses
in the case) of whom Tulsi was recently encountered at BK
by border range."
15. It is also pointed out by the CBI that at the time of the
· murder of Sohrabuddin, there was no conspiracy to murder
Tulsiram Prajapati and it is only subsequent to his murder when
the accused persons feared of Tulsiram Prajapati being a threat
G
to them and would spill the beans as he was a material witness
H
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SUPREME COURT REPORTS
[2013] 6 S.C.R.
A in the first conspiracy inasmuch as tracing and locating of
Sohrabuddin on the assurances of the accused, another
conspiracy was hatched to murder a potential witness to the
murder of Sohrabuddin. By highlighting these factual details, it
is pointed out by the CBI that there were two distinct and
B separate conspiracies.
16. With these factual aspects, as projected by the CBI,
let us analyze further details highlighted by learned senior
counsel for the petitioner as well as the specific stand of the
C CBI in the earlier proceedings asserted before this Court in the
form of affidaviVcounter affidavit and status reports.
Entrustment of investigation to the CBI in respect of 1st
FIR:
0
17. Initially, Gujarat police conducted investigation into the
killing of two individuals and filed charge sheet in the FIR being
Crime Register No. 5/2006. This Court, in the writ petition filed
in Rubabbuddin Sheikh vs. State of Gujarat and Others (2010)
2 SCC 200 did not accept the investigation of the Gujarat
E Police and consequently directed the CBI to conduct
investigation. This order was passed by this Court on
12.01.2010. In the said decision, this Court expressed a
suspicion that the alleged killing of Tulsiram Prajapati could be
the part of the same conspiracy. It is useful to refer the relevant
excerpts from the above decision which are as under:
F
G
H
"(i) The writ petitioner also seeks the registration of an
offence and investigation by CBI into the alleged encounter
of one Tulsiram, a close associate of Sohrabuddin, who
was allegedly used to locate and abduct Sohrabuddin and
his wife Kausarbi, and was thus a material witness against
the police personnel.
(ii) The report expressly states that no link of Tulsiram
Prajapati had been established in this case. The third
person who was abducted was not to be the said Tulsiram
Prajapati.
AMITBHAI ANILCHANDRA SHAH v. CENTRAL
639
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.]
(iii) On 02.08.2007, the seventh action taken report was A
filed, which stated that the third person who was picked
up was one Kalimuddin, who was suspected to be an
informer of the Police.
(iv) From the charge-sheet, it also appears that the third
B
person was "sent somewhere". However, it appears that
the literal translation of the charge-sheet in Gujarati would
mean that he was "anyhow made to disappear''.
(v) It also appears from the charge-sheet that it identifies
the third person who was taken to Disha farm as C
Kalimuddin. But it does not contain the details of what
happened to him once he was abducted. The possibility
of the third person being Tulsiram Prajapati cannot be
ruled out, although the police authorities or the State had
made all possible efforts to show that it was not Tulsiram. D
(vi) Similarly, it was submitted that non-identification of the
third person who was abducted along with Sohrabuddin
and Kausarbi would also not affect the prosecution case."
18. After expressing and arriving at such a conclusion, this
E
Court concluded that "the possibility of the third person being
Tulsiram Prajapati cannot be ruled out and that his killing could
be an attempt to destroy a human witness" and after saying so,
transferred the investigation to the CBI. Ultimately, this Court
directed the CBI "to unearth the larger conspiracy". The
F
following categorical observations and directions in paras 65,
66 and 82 are relevant which are noted hereunder:-
"65. It also appears from the charge-sheet that it identifies
the third person who was taken to Disha farm as G
Kalimuddin. But it does not contain the details of what
happened to him once he was abducted. The possibility
of the third person being Tulsiram Prajapati cannot be
ruled out, although the police authorities or the State had
made all possible efforts to show that it was not Tulsiram.
H
640
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B
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SUPREME COURT REPORTS
[2013] 6 S.C.R.
In our view, the facts surrounding his death evokes strong
suspicion that a deliberate attempt was made to destroy
a human witness.
66. So far as the call records are concerned, it would
be evident from the same that they had not been analysed
properly, particularly the call data relating to three senior
police officers either in relation to Sohrabuddin's case or
in Prajapati's case. It also appears from the charge-sheet
as well as from the eight action taken reports that the
motive, which is very important in the investigation reports
was not properly investigated into as to the reasons of their
killing. The motive of conspiracy cannot be merely fame
and name. No justification can be found for the Investigating
Officer Ms Johri walking out of the investigation with
respect to Tulsiram Prajapati's death without even
informing this Court.
82. Accordingly, in the facts and circumstances even
at this stage the police authorities of the State are directed
to hand over the records of the present case to the CBI
Authorities within a fortnight from this date and thereafter
the CBI Authorities shall take up the investigation and
complete the same within six months from the date of
taking over the investigation from the State police
authorities. The CBI Authorities shall investigate all
aspects of the case relating to the killing of Sohrabuddin
and his wife Kausarbi including the alleged possibility of
a larger conspiracy. The report of the CBI Authorities shall
be filed in this Court when this Court will pass further
necessary orders in accordance with the said report, if
necessary. We expect that the Police Authorities of Gujarat,
Andhra Pradesh and Rajasthan shall cooperate with the
CBI Authorities in conducting the investigation properly and
in an appropriate manner."
19. The observations, findings and directions in
H Rubabbuddin Sheikh (supra) clearly show that the alleged
AMITBHAI ANILCHANDRA SHAH v. CENTRAL
641
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.]"
killing of Tulsiram Prajapati was thus perceived even by this A
Court to be an act forming part of the very same transaction
and same conspiracy in which the offence of killing of
Sohrabuddin and Kausarbi took place. The CBI also, upon
investigation held that "strong suspicion expressed by this Court
in the above judgment was true and filed charge sheet/s".
B
20. Pursuant to the decision in Rubabbuddin Sheikh
(supra) dated 12.01.2010, the CBI filed a fresh FIR, viz., first
FIR. It is also clear that during the investigation, the CBI came
to the conclusion that this first FIR was a part of the series of C
acts concerning with the alleged offence of abduction and killing
of two individuals, viz., Sohrabuddin on 25/26.11.2005 and
· Kausarbi on 29.11.2005 culminating with the killing of one more
.. person, viz., Tulsiram Prajapati as part of the very same
conspiracy.
D
21. Now, let us discuss the charge sheet dated 23.07.2010
filed by the CBI in the first FIR . .A§ rightly pointed out by Mr.
Mahesh Jethmalani, learned senior counsel for the petitioner·
Amit Shah, in this chargesheet itself, the CBI categorically
mentioned that the killing of Tulsiram Prajapati is also a part of E
· the very same conspiracy which is mentioned in the first FIR
above. Though, before us, a different stand was taken by the
CBI, the following excerpts of the charge sheet clearly show that
CBI was very categorical that killing of Tulsiram Prajapati is
also a part of the very same conspiracy, which are as under:-
F
"11 ...... Shri Naymuddin, brother of Shri Sohrabuddin had
gone to see off Shri Sohrabuddin, sister-in-law Smt.
Kausarbi and Tulsiram Prajapati at Indore Bus Stand.
19. Investigation further revealed that the Police Party also G
followed the luxury bus. About 15 to 20 kilometers from the
hotel, on the instructions of Shri Rajkumar Pandiyan (A-2)
their vehicles overtook the luxury bus and stopped the bus.
Two police persons entered into the bus and asked the
driver to switch on the light. While the third police P.erson
H
A
B
c
D
E
F
G
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SUPREME COURT REPORTS
[2013] 6 S.C.R.
was having torch in his hand remained near the door of
the bus. The police persons told there is police checking.
All the three police personnel were in civil dress. They
picked up Tulsiram Prajapati who was sitting in the bus.
After sometime, they again came into bus and picked up
Sohrabuddin. When Sohrabuddin was made to get down
from the bus, Kausarbi also got down .....
20. Investigation further disclosed that Shri Sohrabuddin
and Tulsiram Prajapati abducted by police party were
made to sit in the Qualis while Kausarbi was made to sit
in one of the Tata Sumo vehicles along with Santram
Sharma (A-11 ) ..... All of them reached Valsad where at
one big hotel, both the Tata Sumo Vehicles were stopped
and they took lunch. Tulsiram Prajapati was shifted to
another vehicle which was brought by Rajasthan Police
personnel. They took him straight to Udaipur where he was
kept in illegal custody for five days. Thereafter, he was
shown arrested by a team lead by Shri Bhanwar Singh
Hada, lnspector/SHO P.S. Hathipole, Udaipur Rajasthan
from Bhilwara.
32. Investigation further disclosed that in the early part of
November, 2005, Shri Tulsiram Prajapati was contacted
by accused Abhay Chudasama (A-15) and brought to
Ahmedabad where he was produced before accused D.G.
Vanzara (A-1). They asked him to make Sohrabuddin
available before them as there was lot of political pressure.
Tulsiram Prajapati was assured that Sohrabuddin would
get a safe passage and at the most Sohrabuddin would
be put in jail so as to keep him away from glare for 3-4
months. No physical harm would be done to Sohrabuddin.
Having got the assurance from accused D.G. Vanzara (A1 ), Tulsiram Prajapati helped accused Abhay Chudasama
(A-15) in tracking down Sohrabuddin."
22. Apart from the above specific stand, it is also relevant
AMITBHAI ANILCHANDRA SHAH v. CENTRAL
643
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.]
to point out that the CBI filed supplementary chargesheet dated A
22.10.201 o in the first FIR which made the following charges:-
" Investigation has also revealed that after the Gujarat
Police Officers had eliminated Shri Tulsiram Prajapati on
28.12.2006 in a fake encounter, Sm!. Geeta Johri, the then
B
IGP prepared a note sheet on 05.01.2006 mentioning
therein inter alia the permission to go to Udaipur to
interrogate the aforesaid two associates of Sohrabuddin
viz., Sylvester and Tulsiram Prajapati, of whom, she
mentioned that Tulsriram Prajapati was encountered by the C
Police .... "
The above extracts culled out from the chargesheet and
supplementary chargesheet filed in the first FIR by the CBI would
clearly show that killing of Tulsiram Prajapati was a fake
encounter and was part of the same series of acts so D
connected together that they form part of the same conspiracy
as alleged in the first FIR. In view of the same, there cannot be
a second FIR dated 29.04.2011 and fresh chargesheet dated
04.09.2012 for killing of Tulsiram Prajapati.
23. It is also relevant to point out that when Writ Petition
(Crl.) No.