# HIMANSHU KUMAR AND OTHERS v. STATE OF CHHATTISGARH AND OTHERS

- **Citation:** [2022] 11 S.C.R. 724
- **Court:** Supreme Court of India
- **Decided:** 2022-07-14
- **Bench:** A. M. Khanwilkar, J. B. Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/himanshu-kumar-and-others-v-state-of-chhattisgarh-and-others-35698
- **Pages:** 84

## Headnote

Criminal Law - Constitution of India - Article 32 - Petition
seeking mandamus for re-investigation / further investigation - Two
incidents of alleged brutal massacre of tribals in three villages in
the State of Chhattisgarh - Case of the writ petitioners that the
Chhattisgarh Police, Special Police Officers (SPOs), the activists
of Salwa Judum (group of vigilantes sponsored by the Chhattisgarh
Government) and the Paramilitary Forces consisting of the CRPF
and the CoBRA Battalions were responsible for the alleged massacre
- Whether any case was made out by the writ petitioners for
investigation of the two incidents through the Central Bureau of
Investigation (CBI) - Held: The extraordinary power of the
Constitutional Courts under Articles 32 and 226 respectively of the
Constitution qua the issuance of directions to the CBI to conduct
investigation must be exercised with great caution - The contextual
facts and the attendant circumstances have to be singularly evaluated
and analyzed to decide the needfulness of further investigation or
re-investigation - No one can insist that an offence be investigated
by a particular agency - An aggrieved person can only claim that
the offence he alleges be investigated properly, but he has no right
to claim that it be investigated by any particular agency of his choice
- The power to transfer an investigation must be used "sparingly"
and only "in exceptional circumstances" - On facts, the writ petition
gives an impression that proper investigation was not being done
and, therefore, the same should be handed over to the CBI -
However, the fact is that the investigation had been already carried
out and charge sheets had been filed - In the overall view of the
matter, it was clear that no case, worth the name, has been made
out by the writ petitioners for any further investigation much less
through an independent agency to be appointed by the Supreme
Court.
[2022] 11 S.C.R. 724
A
B
C
D
E
F
G
H
725
Criminal Law - Investigation - The power to transfer an
investigation must be used "sparingly" and only "in exceptional
circumstances".
Criminal Law - CrPC does not define what constitutes the
making of a "charge" of an offence or what amounts to the
"institution of criminal proceedings" - The statement in order to
constitute the "charges" should be made with the intention and object
of setting criminal law in motion.
Code of Criminal Procedure, 1973 - s.340 r/w s.195 - Penal
Code, 1860 - ss.191 and 193 - Perjury - Offence of making false
affidavit and giving false evidence - Held: There are two conditions,
on fulfilment of which, a complaint can be filed against a person
who has given a false affidavit or evidence in a proceeding before
a court - The first condition being that a person has given a false
affidavit in a proceeding before the court and, secondly, in the
opinion of the court it is expedient in the interest of justice to make
an inquiry against such a person in relation to the offence committed
by him - There should be something deliberate - a statement should
be made deliberately and consciously which is found to be false as
a result of comparing it with unimpeachable evidence, documentary
or otherwise - Before initiating proceedings for perjury, the court
concerned has to consider whether it would be expedient in the
interest of justice to sanction such prosecution - Before sanctioning
prosecution there must be a prima facie case of a falsehood on a
matter of substance and the court should be satisfied that there is
reasonable foundation for the charge.
Penal Code, 1860 - s. 211 - Essential ingredients for invoking
s.211 - Discussed.
Dismissing the writ petition and disposing of the
Interlocutory application, the Court
HELD:1.1 In an appropriate case when the Court feels that
the investigation by the police authorities is not in a proper
direction, and in order to do complete justice in the case and if
high police officials are involved in the alleged crime, the Court
may be justified i

## Text

_Characters 0–39,876 of 169,239. This is a partial read: ask again with offset=39876 for what follows._

A
B
C
D
E
F
G
H
724
SUPREME COURT REPORTS
[2022] 11 S.C.R.
724
HIMANSHU KUMAR AND OTHERS
v.
STATE OF CHHATTISGARH AND OTHERS
(Writ Petition (Criminal) No.103 of 2009)
JULY 14, 2022
[A. M. KHANWILKAR AND J. B. PARDIWALA, JJ.]
Criminal Law - Constitution of India - Article 32 - Petition
seeking mandamus for re-investigation / further investigation - Two
incidents of alleged brutal massacre of tribals in three villages in
the State of Chhattisgarh - Case of the writ petitioners that the
Chhattisgarh Police, Special Police Officers (SPOs), the activists
of Salwa Judum (group of vigilantes sponsored by the Chhattisgarh
Government) and the Paramilitary Forces consisting of the CRPF
and the CoBRA Battalions were responsible for the alleged massacre
- Whether any case was made out by the writ petitioners for
investigation of the two incidents through the Central Bureau of
Investigation (CBI) - Held: The extraordinary power of the
Constitutional Courts under Articles 32 and 226 respectively of the
Constitution qua the issuance of directions to the CBI to conduct
investigation must be exercised with great caution - The contextual
facts and the attendant circumstances have to be singularly evaluated
and analyzed to decide the needfulness of further investigation or
re-investigation - No one can insist that an offence be investigated
by a particular agency - An aggrieved person can only claim that
the offence he alleges be investigated properly, but he has no right
to claim that it be investigated by any particular agency of his choice
- The power to transfer an investigation must be used "sparingly"
and only "in exceptional circumstances" - On facts, the writ petition
gives an impression that proper investigation was not being done
and, therefore, the same should be handed over to the CBI -
However, the fact is that the investigation had been already carried
out and charge sheets had been filed - In the overall view of the
matter, it was clear that no case, worth the name, has been made
out by the writ petitioners for any further investigation much less
through an independent agency to be appointed by the Supreme
Court.
[2022] 11 S.C.R. 724
A
B
C
D
E
F
G
H
725
Criminal Law - Investigation - The power to transfer an
investigation must be used "sparingly" and only "in exceptional
circumstances".
Criminal Law - CrPC does not define what constitutes the
making of a "charge" of an offence or what amounts to the
"institution of criminal proceedings" - The statement in order to
constitute the "charges" should be made with the intention and object
of setting criminal law in motion.
Code of Criminal Procedure, 1973 - s.340 r/w s.195 - Penal
Code, 1860 - ss.191 and 193 - Perjury - Offence of making false
affidavit and giving false evidence - Held: There are two conditions,
on fulfilment of which, a complaint can be filed against a person
who has given a false affidavit or evidence in a proceeding before
a court - The first condition being that a person has given a false
affidavit in a proceeding before the court and, secondly, in the
opinion of the court it is expedient in the interest of justice to make
an inquiry against such a person in relation to the offence committed
by him - There should be something deliberate - a statement should
be made deliberately and consciously which is found to be false as
a result of comparing it with unimpeachable evidence, documentary
or otherwise - Before initiating proceedings for perjury, the court
concerned has to consider whether it would be expedient in the
interest of justice to sanction such prosecution - Before sanctioning
prosecution there must be a prima facie case of a falsehood on a
matter of substance and the court should be satisfied that there is
reasonable foundation for the charge.
Penal Code, 1860 - s. 211 - Essential ingredients for invoking
s.211 - Discussed.
Dismissing the writ petition and disposing of the
Interlocutory application, the Court
HELD:1.1 In an appropriate case when the Court feels that
the investigation by the police authorities is not in a proper
direction, and in order to do complete justice in the case and if
high police officials are involved in the alleged crime, the Court
may be justified in such circumstances to handover the
investigation to an independent agency like the CBI. Even after
the filing of the charge sheet the court is empowered in an
appropriate case to handover the investigation to an independent
HIMANSHU KUMAR AND OTHERS v. STATE OF
CHHATTISGARH AND OTHERS
A
B
C
D
E
F
G
H
726
SUPREME COURT REPORTS
[2022] 11 S.C.R.
agency like the CBI. The extraordinary power of the
Constitutional Courts under Articles 32 and 226 respectively of
the Constitution of India qua the issuance of directions to the
CBI to conduct investigation must be exercised with great caution.
Though a satisfaction of want of proper, fair, impartial and effective
investigation eroding its credence and reliability is the
precondition for a direction for further investigation or
reinvestigation, submission of the charge sheet ipso facto or the
pendency of the trial can, by no means, be a prohibitive
impediment. The contextual facts and the attendant circumstances
have to be singularly evaluated and analyzed to decide the
needfulness of further investigation or re-investigation to unravel
the truth and mete out justice to the parties. The prime concern
and the endeavour of the court of law should be to secure justice
on the basis of true facts which ought to be unearthed through a
committed, resolved and a competent investigating agency. [Paras
46, 47][774-B-D, F-H]
1.2. No one can insist that an offence be investigated by a
particular agency. An aggrieved person can only claim that the
offence he alleges be investigated properly, but he has no right
to claim that it be investigated by any particular agency of his
choice. [Para 52][776-B-C]
1.3. The power to transfer an investigation must be used
"sparingly" and only "in exceptional circumstances". [Para
53][776-D]
2.1 In the instant case, all the FIRs were investigated by
the concerned investigating agencies and, at the end of the
investigation, charge sheets came to be filed in different courts
of the State of Chhattisgarh for the offences under the IPC like
murder, dacoity,etc. [Para 55][776-F-G]
2.2. Having regard to the materials on record, no case, worth
the name for further investigation or re-investigation, could also
be said to have been made out.The filing of the charge sheets at
the conclusion of the investigation into the various FIRs referred
to above would indicate that the alleged massacre was at the end
of the Naxalites (Maoists). The materials collected in the form of
the charge sheets substantiate the case put up by the respondents
A
B
C
D
E
F
G
H
727
that the villagers were attacked and killed by the Naxalites. There
is not an iota of material figuring in the investigation on the basis
of which even a finger can be pointed towards the members of
the police force. [Paras 56 and 57][776-G-H; 777-A-B]
2.3. The writ petition gives an impression that proper
investigation is not being done and, therefore, the same should
be handed over to the CBI. However, the fact is that the
investigation has already been carried out and charge sheets have
been filed. [Para 58][777-B-C]
2.4. It appears from the materials on record that all those
persons who have been arraigned as accused and against whom
charge sheets have been filed are absconding. It is now for the
concerned trial court to take appropriate steps in this regard. If
the persons named as accused in the charge sheets are
absconding, then it is expected of the investigating agency to
take necessary steps for their arrest. In any view of the matter, it
is now for the trial court to do the needful in accordance with law.
[Para 64][781-F-H]
2.5. In the overall view of the matter, it is clear that no
case, worth the name, has been made out by the writ petitioners
for any further investigation much less through an independent
agency to be appointed by this Court. In the facts of the above
case, the conditions laid down by this Court in the case of
Committee for Protection of Democratic Rights, West Bengal
are not fulfilled. [Para 65][781-H; 782-A-B]
3.1. The essential ingredients for invoking Section 211,
I.P.C. are that the complaint must have falsely charged a person
with having committed an offence. The complainant, at the time
of giving the complaint must have known that there is no just or
lawful ground for making a charge against the person. This
complaint must have been given with an intention to cause injury
to a person. [Para 90][802-D-E]
3.2. The CrPC does not define what constitutes the making
of a "charge" of an offence or what amounts to the "institution of
criminal proceedings". But, a false "charge" must not be
understood in any restricted or technical sense, but in its ordinary
HIMANSHU KUMAR AND OTHERS v. STATE OF
CHHATTISGARH AND OTHERS
A
B
C
D
E
F
G
H
728
SUPREME COURT REPORTS
[2022] 11 S.C.R.
meaning, of a false accusation made to any authority bound by law
to investigate it or to take any steps in regard to it, such as giving
information of it to the superior authorities with a view to
investigation or other proceedings, and the institution of criminal
proceedings includes the setting of the criminal law in motion.
[Para 91][802-E-F]
3.3. The essential ingredient of an offence under Section
211 IPC is to institute or cause, to be instituted any criminal
proceeding against a person with intent to cause him injury or
with similar intent to falsely charge any person with having
committed an offence, knowing that there is no just or lawful
ground for such proceeding or charge. Instituting or causing to
institute false criminal proceedings assume false charge but false
charge may be preferred even when no criminal proceedings
result. Now, the expression "falsely charges" in this section
cannot mean giving false evidence as a prosecution witness against
an accused person during the course of a criminal trial. "To falsely
charge" must refer to the original or initial accusation putting or
seeking to put in motion the machinery of criminal investigation
and not when seeking to prove the false charge by making
deposition in support of the charge framed in that trial. The words
"falsely charges" have to be, read along with the expression
"institution of criminal proceeding". Both these expressions,
being susceptible of analogous meaning should be understood to
have been used in their cognate sense. They get as it were their
colour and content from each other. They seem to have been
used in a technical sense as commonly understood in our criminal
law. The false charge must, therefore, be made initially to a person
in authority or to someone who is in a position to get the offender
punished by appropriate proceedings. In other words, it must
be' embodied either in a complaint or in a report of a cognizable
offence to the police officer or to an officer having authority over
the person against whom the allegations are made. The statement
in order to constitute the "charges" should be made with the
intention and object of setting criminal law in motion. [Para
94][804-D-H; 805-A]
State of West Bengal and others v. Committee for
Protection of Democratic Rights, West Bengal (2010) 3
SCC 571 : [2010] 2 SCR 979 - followed.
A
B
C
D
E
F
G
H
729
K.V. Rajendran v. Superintendent of Police, CBCID
South Zone, Chennai, (2013) 12 SCC 480 : [2013]
9 SCR 199 - relied on.
Secretary, Minor Irrigation, Rural Engineering Services,
U.P. v. Sahngoo Ram Arya and Anr. (2002) 5 SCC 521;
Romila Thapar v. Union of India (2018) 10 SCC 753 :
[2013] 9 SCR 199; Narmada Bai v. State of Gujarat
(2011) 5 SCC 79 : [2011] 5 SCR 729; Sanjiv Rajendra
Bhatt v. Union of India (2016) 1 SCC 1 :
[ 2015]12 SCR 498; E. Sivakumar v. Union of India
(2018) 7 SCC 365; [2018] 6 SCR 522; Divine Retreat
Centre v. State of Kerala (2008) 3 SCC 542 : [2008]
4 SCR 701; K.Karunakaran v. T.V. Eachara Warrier
and another AIR 1978 SC 290 : [1978] 2 SCR 209;
Baban Singh and another v. Jagdish Singh and others
AIR 1967 SC 68 : [1966] 3 SCR 552; Chajoo Ram v.
Radhey Shyam (1971) 1 SCC 774 : [1971] Suppl.
SCR172; Chandrapal Singh and Others v. Maharaj
Singh and Another (1982) 1 SCC 466; R.S. Sujatha v.
State of Karnataka and Others (2011) 5 SCC 689 :
[2010] 14 SCR 227; S.P. Kohli v. High Court of Punjab
& Haryana AIR 1978 SC 1753 : [1979] 1 SCR 722;
Muthu Karuppan, Commissioner of Police, Chennai v.
ParithiIlamvazhuthi and another (2011) 5 SCC 496 :
[2011] 5 SCR 329; M.S. Sheriff and Another v. State
of Madras and Others AIR 1954 SC 397 : [1954]
SCR 1144; Aarish Asgar Qureshi v. Fareed Ahmed
Qureshi and another (2019) SCC 172 : [2019]
3 SCR 400; Sharad Pawar v. Jagmohan Dalmiya
(2010) 15 SCC 290; State of Punjab v. Jasbir Singh
(2020) 12 SCC 96; Santokh Singh & Ors. v. Izhar
Hussan and Anr. (1973) 2 SCC 406 : [1974] 1 SCR 78
and M.L. Sethi v. R.P. Kapur AIR 1967 SC 528 : [1967]
1 SCR 520 - referred to.
CBI & Another v. Rajesh Gandhi and another 1997
Cr.L.J 63 - affirmed.
Karim Buksh v. Queen Emp 17 C. 574 - referred to.
HIMANSHU KUMAR AND OTHERS v. STATE OF
CHHATTISGARH AND OTHERS
A
B
C
D
E
F
G
H
730
SUPREME COURT REPORTS
[2022] 11 S.C.R.
Case Law Reference
[2010] 2 SCR 979
followed
Para 44
(2002) 5 SCC 521
referred to
Para 45
[2013] 9 SCR 199
relied on
Para 48
[2011] 5 SCR 729
referred to
Para 51
[2015] 12 SCR 498
referred to
Para 51
[2018] 6 SCR 522
referred to
Para 51
[2008] 4 SCR 701
referred to
Para 51
[1978] 2 SCR 209
referred to
Para 73
[1966] 3 SCR 552
referred to
Para 74
[1971] Suppl. SCR 172
referred to
Para 75
(1982) 1 SCC 466
referred to
Para 76
[2010] 14 SCR 227
referred to
Para 77
[1979] 1 SCR 722
referred to
Para 79
[2011] 5 SCR 329
referred to
Para 80
[1954] SCR 1144
referred to
Para 82
[2019] 3 SCR 400
referred to
Para 83
(2010) 15 SCC 290
referred to
Para 84
(2020) 12 SCC 96
referred to
Para 86
[1974] 1 SCR 78
referred to
Para 93
[1967] 1 SCR 520
referred to
Para 96
CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 103 of 2009.
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
Colin Gonsalves, Sr. Adv., Ms. Sneha Mukherjee, Satya Mitra,
Advs. for the Petitioners.
Tushar Mehta, SG, K. M. Nataraj, ASG, Rajat Nair, Shailesh
Madiyal, Ms. Neela Kedar Gokhale, Ms. Diksha Rai, Balendu Shekhar,
Arvind Kumar Sharma, B. V. Balaram Das, Sumeer Sodhi, Abhishek
Lalwani, Advs. for the Respondents.
A
B
C
D
E
F
G
H
731
The Judgment of the Court was delivered by
J. B. PARDIWALA, J.
1. This writ petition under Article 32 of the Constitution of India
relates to the alleged massacre that took place on 17th September 2009
and 1st October 2009 respectively in the villages of Gachhanpalli, Gompad
and Belpocha respectively situated in the district of Dantewada, State
of Chhattisgarh.
2. It is the case of the writ petitioners that the Chhattisgarh Police,
Special Police Officers (SPOs), the activists of Salwa Judum (group of
vigilantes sponsored by the Chhattisgarh Government) and the
Paramilitary Forces consisting of the CRPF and the CoBRA Battalions
are responsible for the alleged brutal massacre of the tribals in the
respective villages referred to above.
3. In the aforesaid context, the writ petitioners have prayed for
the following reliefs :
"(a) Issue a writ of mandamus or any other appropriate writ,
order or direction to the respondents to have the CBI take
over the investigation and prosecution with respect to the
complaints made by the petitioners and others with respect to
the massacres that took place on 17.9.2009 and 1.10.2009
as set out in this petition;
(b) Pass an order directing the payment of compensation to
the victims and their families for the extra judicial executions,
for the looting of their properties, for the burning of their
houses and other losses suffered by the victims on account of
the unlawful activities of the respondents and their agents;
(c) Pass any such further order or orders, as this Hon'ble
Court may deem fit and proper in the facts and circumstances
stated herein above."
4. By way of the Criminal M.P. No.3173 of 2010, further reliefs
have been prayed for as under :
"(a) Order directing the State of Chhattisgarh to constitute
and notify a Special Investigation Team (SIT) headed by Shri
Sankar Sen (IPS) Dr.K.S.Subramanian, IPS and Mr.Rajneesh
Rai, DIG and such other officers as the SIT may deem
HIMANSHU KUMAR AND OTHERS v. STATE OF
CHHATTISGARH AND OTHERS
A
B
C
D
E
F
G
H
732
SUPREME COURT REPORTS
[2022] 11 S.C.R.
necessary with additional directions for the proper functioning
of the SIT as given by the Supreme Court in the case of NHRC
vs. State of Gujarat (2009) 6 SCC 342, 767).
(b) Order directing the State of Chhattisgarh to produce
Petitioners 2-12 at Delhi and hand them over to
Dr.MohiniGiri, Chairperson, Guild for Services, 'Shubham',
C-25, Qutab Institutional Area, New Delhi;
(c) Order permitting the petitioner no.1 and the advocates
for the petitioner no.1 along with their interpreters to meet
the petitioners 2-12 at the Guild for Services, New Delhi in
the presence of Dr.MohiniGiri;
(d) Order requesting Dr.MohiniGiri, Chairperson, Guild for
Services, New Delhi, to interview the petitioners and make a
report to this Court."
5. The facts giving rise to the present writ petition may be
summarised as under :
6. The writ petitioner no.1, namely Himanshu Kumar, claims
himself to be running an NGO in the name of Vanvasi Chetna Ashram,
Kanwalnar - Dantewada Chhattisgarh. He claims to be running an NGO
for the welfare and development of the tribals residing in the Bastar
region. He also claims to be rendering help tothe other tribals of the
Dantewada district of Chhattisgarh.
7. The writ petitioners nos.2 to 13 respectively are the kith and
kin of the victims of the alleged massacre.
8. It is the case of the petitioner no.1 that after the two horrifying
incidents referred to above, the tribals are in a state of shock. They
constantly remain under the fear of being killed by the Special Forces
referred to above.
9. It is his case that with a view to help the tribals and seek justice
for them, he took up the cause and thought fit to prefer the present
writpetition seeking an investigation into the alleged massacre through
the Central Bureau of Investigation (CBI) and an appropriate
compensation to be paid to the victims and their families.
10. It is the case of the petitioner no.1 that he helped the tribals to
lodge their respective complaints as regards the alleged mass killings
A
B
C
D
E
F
G
H
733
that took place on 17th September 2009 and 1st October 2009 respectively.
11. According to the petitioner no.1, the tongue and other parts of
the body, such as, the upper limbs, lower limbs, etc. of the family members
of the petitioners nos.2 to 13 respectively were chopped off by the security
force. It is alleged that the security forces did not spare even the infants.
It is also alleged that the breast of a 70-year-old tribal woman were
chopped off and was stabbed to death by the members of the police
forces. It is also alleged that a 2-year-old infant was brutally murdered.
The houses of the tribals were burnt. Money and properties were looted.
12. It has been further pointed out that on 8th January 2009, 19
people were killed by the above referred forces at the village Singaram,
Tehsil Konta, District Dantewada.
13. On 18th March 2008, 3 tribals were killed at Matwada, Salwa
Judum Camp, District Bijapur, by the Chhattisgarh Police and SPOs.
14. It has been pointed out that with respect to the aforesaid two
incidents, the matter was taken up by the National Human Rights
Commission.
15. It is the case of the petitioner no.1 that as the Special Forces
and the State of Chhattisgarh itself are involved in the alleged brutal
massacre of the tribals, the investigation of all the complaints should be
at the instance of none other than the CBI.
16. In the memorandum of the writpetition, the information as
regards the relationship between the petitioners nos.2 to 13 respectively
and the deceased has been furnished as under :
HIMANSHU KUMAR AND OTHERS v. STATE OF
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
A
B
C
D
E
F
G
H
734
SUPREME COURT REPORTS
[2022] 11 S.C.R.
17. The details of the alleged killings on different dates have also
been furnished in the memorandum of the writpetition. However, we
may not verbatim reproduce the same in our order.
A
B
C
D
E
F
G
H
735
18. The details on the First Information Reports are as under :
HIMANSHU KUMAR AND OTHERS v. STATE OF
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
A
B
C
D
E
F
G
H
736
SUPREME COURT REPORTS
[2022] 11 S.C.R.
A
B
C
D
E
F
G
H
737
HIMANSHU KUMAR AND OTHERS v. STATE OF
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
A
B
C
D
E
F
G
H
738
SUPREME COURT REPORTS
[2022] 11 S.C.R.
19. It is the case of the petitioners that after the registration of the
FIRs referred to above, no action has been taken by the police. No one
came to be arrested. No proper investigation has been undertaken. Not
a single statement of any of the eye-witnesses has been recorded. In
such circumstances referred to above, the writ petitioners are here before
A
B
C
D
E
F
G
H
739
this Court with the present writpetition seeking relief of investigation of
all the FIRs through the CBI. The petitioners also seek compensation
from the Government for the alleged atrocities and massacre.
STANCE OF THE STATE OF CHHATTISGARH :
20. The State of Chhattisgarh has refuted all the allegations levelled
in the memorandum of the writ petition by filing counter-affidavit duly
affirmed through one Shri Vimal Kumar Bais, Deputy Superintendent of
Police, Headquarter - Dantewada, Chhattisgarh, dated 4th February
2010. The affidavit minutely deals with all the incidents referred to by
the petitioners in the memorandum of the writpetition. We quote the
same as under :
"5. That the State of Chhattisgarh is facing menace of
Naxalism which has been termed as a number one security
threat to nation's integrity and sovereignty by the Hon'ble
Prime Minister of India. The State Police with help of
paramilitary forces have to tackle the Naxalism and most of
the organizations concerning Naxalite movements have also
been banned. The State of Chhattisgarh has lost precious life
of its personnel while defending the State. In last two years,
the security personnel who are killed by Naxalite in the State
of Chhattisgarh would be in the range of 300. In the District
of Dantewada alone, sixty-five police personnel have died.
The State of Chhattisgarh has also stated in its earlier affidavit
that these writ petitions are filed by Naxal sympathizers. In
fact, the State of Chhattisgarh verily believes that mountains
of complaints are filed so as to detract the police personnel
from tackling the menace of Naxalism. The police personnel
have lost their lives while combating the menace of Naxalite
activities. A cavalcade of entire police personnel was
ambushed in which even one S.P. died.
PARAWISE REPLY :
1. The contents of paragraph No.1 of the writ petition are
denied and the attack on the police party by the Naxalites
have been sought to be given the connotation of 'massacre'.
The State of Chhattisgarh have explained the three incidents
of 17.09.09 and 01.10.09 with Naxalites in detail in the
subsequent paragraphs. The word 'massacre' is being used
HIMANSHU KUMAR AND OTHERS v. STATE OF
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
A
B
C
D
E
F
G
H
740
SUPREME COURT REPORTS
[2022] 11 S.C.R.
in a cursory manner without revealing the true nature of the
incidents on 17.09.2009 and 01.10.2009.
RE : INCIDENT OF 17.09.09 [GACHANPALLI] :
A team of CoBRA Battalion along with other police officials
started off for village Gachanpalli at around 07:45 PM on
16.09.2009, when the police party reached village
Gachanpalli and cordoned off the Naxal camp and at around
5.30 AM, the Naxalite opened fire indiscriminately. The police
had no option but to retaliate in self defence. However even
after ceasefire, 150-200 Naxalites were able to retreat into
dense forest. Several arms and ammunitions were recovered
from Naxals including Naxal uniforms. At present, it is
registered as Crime No.4/09 under Sec. 147, 148, 149, 307,
I.P.C. and 25/27 Arms Act at P.S. Bhejji of Gachanpalli and
the investigation is carried on by the CID.
RE : INCIDENT OF 17.09.09 VILLAGE - SINGANPALLI :
The Police Force headed by Devnath Sonkunwar started off
for Singanmadgu and while patrolling on 16.09.2009, they
found a Naxal Camp in the jungle of Singanmadgu in the
early hours of morning. There was incessant firing from 200300 uniformed Naxalites. The police had to opened fire in his
self defence. It would be relevant to mention that many police
personnel including Kobra AC Manoranjan Singh, AC Shri
Rakesh Chaurasiya, Shri Uday Kumar Yadav were shot dead.
Thus precious lives of police personnel were lost in the crossfire and the firing continued till 08:00 PM on 18.09.2009.
Further enforcement of police personnel were also sought.
An FIR No.10/2009 was also registered by P.S. Chintagupha
on 20.09.2009. The case was later on shifted to C.I.D. for
further investigation in accordance with the recommendations
of the NHRC in Nandini Sunder's case. One dead body of
Madavi Deva was identified who died during the cross fire
between the Naxalites and the Police.
It would be relevant to mention that S.P. Office have received
complaints of Madavi Hidma S/o Madavi Kosa, Kawasi Kosa
son of late Kawasi Ganga, Madkam Muke wife of Markam
Chula, Madavi Raza son of Madavi Joga, all belonging to
A
B
C
D
E
F
G
H
741
Gachanpalli. The nature of complaints is full of suspicion
because all the complaints are in same format and typed in
same manner, giving arise to suspicion that certain
organizations sympathetic to Naxalites or Naxalite-oriented
organizations are behind the lodging of such complaints.
These complaints are being investigated and veracity of those
complaints are doubtful as they are in fixed format and typed
in same manner. In any way, on 10.12.2009 even a visit was
made to Gachanpalli to record the statements of
Complainants. However no Complainants were found on
10.12.2009 as the Naxalites persuaded the Complainants to
not to cooperate with the police. Now the Additional S.P.
Dantewada has been entrusted with the job of completing
the Investigation in a speedy manner.
RE: INCIDENT OF 01.10.2009 [GOMPAD INCIDENT] :
A team of security forces consisting of COBRA, local police
and SPOs had started off on 30.09.2009 for Gompad village
on the information of a naxal camp being run near village.
When police party was about to reach the village at 06:30
AM on 01.10.2009, it came under heavy fire by Naxalites.
The attack was repulsed and place was searched. Police did
not find anybody. Afterwards the village was also searched
but everyone fled away. The above incident is being
investigated by Bhejji PS after registration of FIR No.05/09
under Sec.147, 148, 149, 307 IPC and 25, 27 Arms Act. The
case has been transferred to CID for investigation.
The SP office received complaints of Soyam Dula son of late
Soyam Dula, Soyam Rama son of late SoyamKanna, Mrs. Sodi
Sambo wife of Sodi Badra, all belonging to Gompad village,
all of them desirous of registration of crime against security
forces for alleged killing of their relatives. The reason for
holding further investigation in the manner is because the
complaints are filed after much delay of the alleged crime
and secondly, all the complaints are in a fixed format and
typed in same manner giving rise to suspicion that those
complaints have been engineered by Naxals frontal
organizations to derail the investigation.
HIMANSHU KUMAR AND OTHERS v. STATE OF
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
A
B
C
D
E
F
G
H
742
SUPREME COURT REPORTS
[2022] 11 S.C.R.
It is also a moot point to note that during the course of
investigation, S.D.O.P. Konta and his team had visited the
alleged Complainants but those Complainants were
untraceable. The State of Chhattisgarh is of the firm belief
that those Complainants are only working at the behest of
Naxalites and are even under threat of Naxalites. The State
of Chhattisgarh thought that since petitioner No. 1 is in active
contact with complainants and has even chosen to file writ
petition before this Hon'ble Court, it would be advisable that
petitioner No. 1 himself comes forth with all the complainants
to expedite the investigations. However this request of police,
to cooperate in the investigation, is being adversely
commented upon by the petitioner No. 1 before this Hon'ble
Court.
Crime No. 05/2009 under Sec. 147, 148, 149, 307 IPC and
Sec.27/27 of Arms Act has been registered on the report of
Security Forces whereas Crime No. 01/2010 under Sec. 396,
397 IPC has been registered in this regard as per the enquiry
based on application made by Soyam Rama. The case is now
investigated by C.I.D. in accordance with the recommendation
of NHRC in Nandini Sunder's case.
2. The contents of paragraph No.2 of the writ petition are
vehemently denied. It would be evident that the aforesaid two
incidents of 17.09.2009 and one incident of 01.10.2009 have
also brought untold misery and deprivation of police
personnel and several police personnel have lost their lives.
The contents of paragraph No.2 about alleged massacre is
completely misleading and truth of the matter is mat petitioner
No.1 after the Naxalite incident has instigated villagers to
lodge complaints. It is denied that a woman had her breast
cut-off and two year old infant was brutally murdered.
Similarly it is also denied that blind man of 70 years old was
executed.
3. & 4. The contents of paragraphs No.3 & 4 of the writ
petition are denied as long as they pertain to the incidents of
17.09.2009 and 01.10.2009. The FIR relating to the incidents
of 17.09.2009 and that of 01.10.2009 have already been
transferred to C.I.D. in accordance with the NHRC
A
B
C
D
E
F
G
H
743
recommendations in Nandini Sunder's Case. The State of
Chhattisgarh would follow the NHRC recommendation
regarding the incidents of 17.09.2009 and 01.10.2009 and
transfer of case to the CBI is completely unwarranted. In any
case, whether a matter could be transferred to CBI or not is
pending before the Constitution Bench of this Hon'ble Court
and the judgement is still awaited.
5. In response to the contents of paragraph No.5 of the writ
petition, it is stated that writ petitions concerning incidents
dated 18.03.2008 at District Bijapur and 08.01.2009 at
District Dantewada are already pending before the Hon'ble
High Court as Writ Petition Nos.211/2008 & 363/2009
respectively. The Hon'ble High Court of Chhattisgarh is in
seisen of the matter and the deponent has already traversed
the pleadings before the Chhattisgarh High Court.
6. The contents of paragraph No.6 of the writ petition are
denied for want of knowledge.
7. In response to the contents of paragraph No.7 of the writ
petition, it is submitted that incident of 17.01.2009 is already
explained in the preceding paragraphs and therefore it
requires no further reply. The facts have been completely
distorted and are stated in false manner. It has already been
stated that Madavi Deva was the uniformed Naxalite whose
body found from the site while the incident on 17.09.09 at
Singampali. As regards case of burning in hot oil of Muchaki
Deva, though no complaint has been made to police. It is
only found in a press release dated 30.10.2009 of the fact
finding team of PUCL (Chhattisgarh), PUDR (Delhi, Vanvasi
Chetna Ashram (Dantewada), Human Rights Law Network
(Chhatisgarh), Action Aid (Orissa), Manna Adhikar
(Malkangiri) and Zilla Adhivasi Ekta Sangh (Malkangiri),
that Muchaki Deva has been taken to Bhadrachalam by
members of the fact finding team. However this entire
allegation of burning in hot oil is turned out to be a totally
concocted story as evident from the article published in
Hindustan Times in which doctors of Bhadrachalam have
denied to have seen such a burn case at all. As far as the
allegation of certain persons being 'tied' and paraded Is
HIMANSHU KUMAR AND OTHERS v. STATE OF
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
A
B
C
D
E
F
G
H
744
SUPREME COURT REPORTS
[2022] 11 S.C.R.
concerned, it is maintained that when security forces reached
to the village Gachanpalli, after repulsing the attack, no one
was found and everybody had fled to the jungle. It is the
Naxalites who are unleashing terror and the blame is put on
the State. It is reiterated that the entire efforts seems to eulogize
the Naxalite movement and to bring every effort to curtail
Naxalism in poor light.
The incident of 01.10.2009 has been explained in detail in
the preceding paragraphs and the facts stated in the
paragraph under Reply are totally distorted and far from truth.
As regards allegation of 8 arrested and two missing, it could
be said that an FIR No.27/2009 dated 02.10.2009, P.S. Konta,
has been registered which is relatable to attack by Naxalites
on security forces in the jungle of Nulkatong on 01.10.2009.
In above incident, two dead bodies were recovered and eight
people had been arrested. The two dead bodies were brought
to P.S. Konta and inquest by Executive Magistrate and postmortem report was made as per provisions of law.
The alleged killings at Chintagufa (the other one than that of
Siganpalli) came to the knowledge to the State of Chhattisgarh
only after the receipt of this writ petition and same is being
investigated upon.
The recognition of Panda Soma and Ganga of Asarguda
village are completely misplaced. It is reiterated that no person
by the name of Ganga of Asarguda village have been SPO in
police record of Dantewada. Panda Soma was killed in blast
by Naxalites on 06.05.2009 and there is also a death
certificate to that effect. Thus the presence of Panda Soma
on 01.10.2009 is completely falsified. The allegations of
looting, burning of houses, harassment & torture by the
security forces are also denied vehemently.
8. The contents of paragraph No.8 of the writ petition are
denied. There have been no extra judicial killings and in fact
several police personnel have also lost their lives. The
Petitioners No.2 to 13 may not like go to the police station
but they can certainly go to Magistrate for registration of
FIR under Section 156(3) of the Code of Criminal Procedure.
A
B
C
D
E
F
G
H
745
The judicial system even at the grass-root level is independent
and would be in position to monitor the investigation in an
effective manner.
9. &Ors. In response to the contents of paragraphs No.9, 11,
12, 13, 14, 15, 17, 18, 19, 20 and 21 of the writ petition, it is
submitted that the complaint are under investigation and the
stories are more in the nature of 'make-believe'. The true
incident has already been narrated in the preceding
paragraph. The Complainants have not been found whenever
the places of their residence is visited by the investigating
authorities. The S.P., Dantewada, made a request to the
petitioner No.1 to furnish the details of Complainants or
produce the Complainants themselves so that further
investigation could take place. However petitioner No.1 has
taken umbrage, which would be evident from the pleadings
before this Hon'ble Court. In fact, the police is not getting
any assistance from the petitioner No.1 who claims to be
representatives of petitioners No.2 to 13.
10. In response to the complaint filed by Kunjan Hidma as
mentioned in the contents of paragraph No.10 of the writ
petition, an enquiry was instituted and enquiry report has
been submitted by S.D.O.P. Konta. It has been stated that
nobody was found by the police personnel when they visited
village Belpocha on 07.12.2009. It is relevant to mention that
village Belpocha is situated only 14 kms from P.S. Konta but
the Complainant did not report the matter at P.S. Konta.
It is strange that killing of his son KunjamHurra was not
reported to the police, even though the village Dhondhara is
situated nearby. The village men of Dhondhara Sarpanch
Markam Krishana, former Sarpanch Markam Sitaram, Punam
Naraiya were interrogated about the alleged incident. They
refused to have any knowledge about the incident. Thus no
evidence was found and the complaint was found to be false
after discreet enquiry.
16. In response to the contents of paragraph No.16 of the
writ petition, it is submitted that an enquiry report was
submitted by S.D.O.P., Konta in which it is stated that S.D.O.P.
Konta tried to contact the Complainant at village Nulkatong
HIMANSHU KUMAR AND OTHERS v. STATE OF
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
A
B
C
D
E
F
G
H
746
SUPREME COURT REPORTS
[2022] 11 S.C.R.
on 09.11.2009 but no one was found in the village. It is
relevant to mention that the two dead bodies of unknown
naxals were brought to P.S. Konta and an inquest was also
prepared by the Executive Magistrate. Nobody had turned
up for identification of dead bodies for almost three days. An
FIR No.27/2009 under Sec.147, 148, 149, 307 IPC read with
Sec.25 & 27 of Arms Act have been registered at P.S. Konta.
Now the Addl. S.P. Dantewada has been given charge to hold
the enquiry in speedy manner.
22. The contents of paragraph No.22 of the writ petition are
denied. It is respectfully submitted that the villagers are living
in state of fear from Naxalites and not from the State.
23. The contents of paragraph No.23 of the writ petition are
vehementiy denied. The State of Chhattisgarh believes that
story of hot boil is not seriously believed even by the petitioner
No.1 and is a fiction.
24. The contents of paragraph No.24 of the writ petition are
denied. Certain matters are subjudice before Hon'ble High
Court of Chhattisgarh at Bilaspur while in others the
Complainants have not come forward and did not cooperate
in the investigation. The State of Chhattisgarh is committed to
register an FIR and even hold investigation provided the
Complainants cooperate in the investigation process. In any
case at the F.I.R.s concerning incidents of 17.09.09 and
01.10.09 have been duly registered and investigations are
going on.
25. to 27. The contents of paragraphs No.25 & 26 of the writ
petition are denied and this subject matter is already part of
the writ petition filed before Hon'ble High Court of
Chhattisgarh.
28.1 The contents of paragraph No.28.1 of the writ petition
are denied and incidents of 17.01.2009 and 01.10.2009 have
already been dealt with in the preceding paragraphs.
28.2 & 28.3 The contents of paragraph No.28.2 of the writ
petition are vehemently denied. The FIRs have been registered
and an investigation has been transferred to the C.I.D. in
accordance with the recommendations of the NHRC in
A
B
C
D
E
F
G
H
747
Nandani Sunder's case. It is also settled proposition of law
that there may not be more than one FIR regarding the same
incident and once an FIR is registered, then the subsequent
complaints about the same incident would be termed as
statements under Sec.161 of the Code of Criminal Procedure.
Even if the second FIR is registered about the same incident,
it would have little effect on the overall investigation of the
case. The State of Chhattisgarh is cognizant of the complaints
and has even stated to the petitioner No.1 herein to come
forward with the Complainants so that there statements could
be recorded and investigation is duly completed. The State of
Chhattisgarh reiterates that if the Complainants or the
Petitioners come forward then the State would readily record
their statements and even register separate FIRs apart from
the FIRs registered by the Police so far.
28.4 The contents of paragraph No.28.4 of the writ petition
are denied because the investigation is done in the proper
manner and there is no apparent irregularity or omission in
the investigation which would warrant investigation by the
CBI.