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