CRIMINAL MISC.APPLICATION No.

10625 of 2009
With
SPECIAL CRIMINAL APPLICATION No. 2012 of 2009
With
SPECIAL CRIMINAL APPLICATION No. 1850 of 2009
With
CRIMINAL MISC.APPLICATION No. 7503 of 2010
In
SPECIAL CRIMINAL APPLICATION No. 2012 of 2009
With
SPECIAL CRIMINAL APPLICATION No. 822 of 2004

For Approval and Signature:

HONOURABLE MR.JUSTICE JAYANT PATEL

HON'BLE SMT. JUSTICE ABHILASHA KUMARI

=========================================================
1
Whether Reporters of Local Papers may be allowed to see the judgment ?
2
To be referred to the Reporter or not ?
3
Whether their Lordships wish to see the fair copy of the judgment ?
4
Whether this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order made
thereunder ?
5
Whether it is to be circulated to the civil judge ?

=========================================================
STATE OF GUJARAT & 1 - Applicant(s)
Versus
UNION OF INDIA & 5 - Respondent(s)
=========================================================
Appearance :
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MR JM PANCHAL, SPECIAL PUBLIC
PROSECUTOR WITH MS SANGEETA VISHEN, APP for state (IN ALL THE
MATTERS),

MR PS CHAMPANERI, ASSTT SOLICITOR GENERAL for UNION OF INDIA IN ALL

CONCERNED MATTERS,

MR YN RAVANI for CBI

MR IH SYED FOR THE PETITIONERS OF SPECIAL CRIMINAL APPLICATION NO.822
OF 2004 AND CONCERNED CRI. MISC. APPLICATIONS
MR MUKUL SINHA WITH MR AN PATEL FOR PETITIONER OF SPECIAL CRIMINAL
APPLICATION NO.1850 OF 2009 AND CONCERNED APPLICATIONS
MR ND NANAVATI WITH MR MITESH AMIN FOR PETITIONER OF SPECIAL CRIMINAL
APPLICATION NO.2012 OF 2009 AND CONCERNED APPLICATIONS
=========================================================
CORAM :
HONOURABLE MR.JUSTICE JAYANT PATEL
and
HON'BLE SMT. JUSTICE ABHILASHA KUMARI

Date : 12/08/2010

ORAL JUDGMENT
(Per : HONOURABLE MR.JUSTICE JAYANT PATEL)

As all the matters are inter-connected and the facts are common, they
are being considered by this common judgement.
On 15.6.2004, vide C.R. No.8/2004 of Crime Branch Police Station, a
complaint was filed by Shri J.G. Parmar, P.I. (Crime Branch),
Ahmedabad informing that on 14.6.2004 at about 23.00 hrs., an
information was received by Joint Commissioner of Police Shri P.P.
Pandey through his personal sources that in Blue Colour Indica Car
bearing Registration No.MH-02-JA-4786, one Javed and two Pakistani
Fidayeens, with arms and ammunition, have left Mumbai for reaching
Ahmedabad and they were to enter Ahmedabad early morning at any time.
As the said information was supported by Intelligence Sources,
Additional Commissioner of Police (Crime Branch), Mr.D.G. Vanzara
called ACP and PI and under his direct guidance, strong checking was
ordered and it was planned to catch hold of the car and necessary
teams were constituted; one team at Narol Chokdi Four-Roads, one team
at CTM Four-Roads, one team at Naroda S.T. Workshop Three-Roads; one
team at Naroda-Himatnagar Railway Crossing; one team at Indira Bridge
Circle; and one team at Vishala Circle were deployed and they were
comprising of Shri Amin - ACP, PSI Shri P.G. Waghela, PSI Shri
C.J.Goswami, PI Shri B.D. Vanar, ACP Shri Singal and PI Shri Agrawat.
The teams had started watch since 1.30 am in the morning and when
there was watch of the team of Shri Amin - ACP, at about 4 am in the
morning, at Narol, the above Indica Car with Registration
No.MH-02-JA-4786 came from Mumbai and took a right turn towards
Naroda, therefore, they had followed the car. The informations were
supplied to other teams on phone and it was informed on mobile to Shri
Singal that the car had taken turn from Naroda-Himatnagar Railway
Crossing to Airport Road and it might run away, therefore, the car is
required to be intercepted. Hence, over Indira Bridge, the members of
the team comprising of ACP Shri Singal, PI Shri Tarun Barot, PI Shri
RI Patel, PI Shri K.M. Waghela, PI Shri D.H. Goswami, PSI Shri I.K.
Chauhan and other staff in their vehicle proceeded towards Airport
Road and near Kotarpur Workshop took a sharp turn and their vehicles
were kept close to the divider and other members of the team had taken
different position. At that time, when the Indica Car reduced its
speed because of the turning at Kotarpur Water Works, Commando
Mr.Mohan Nanjibhai (Buckle No.1898), who was sitting in the Police
Vehicle, under the direction of Shri Amin, fired at the rear tyre of
Indica Car and as a result thereof, the car had come to a halt, close
to the divider. At that time, from the left side, one terrorist came
out with AK 56, got down and took his position behind the divider and
started firing to the Police Vehicle. The other terrorists, who were
sitting in the car had also started firing, but Shri Amin, the
informant/complainant himself and Commando Mr.P.C. Mohanbhai and
driver of the car Mr.Bhalabhai and PSI Mr.K.M. Desai got down from the
vehicle and took their position on the back side of the vehicle,
therefore, they saved themselves and the Commando, under the orders of
Shri Amin, started firing in his self-defence with Government weapon
AK 47 Rifle. About 10 rounds were fired and during the same, it was
learnt that, as per the information, they were dangerous terrorists,
therefore, ACP Shri Singal had ordered for firing. The member of his
team, Commando Mr.P.C. Mohanbhai (Buckle No.2211) and Commando Mr.A.
Chaudhari (Buckle No.842) started firing towards the persons sitting
in the Indica Car. Therefore, both the Commandos, by taking their
position with their weapons of AK47 fired 32 rounds and 10 rounds with
the Sten-gun in response to the firing of the terrorists.
Simultaneously, the informant/complainant with his service revolver
fired four rounds, Shri Amin fired five rounds, Shri Barot fired six
rounds and Shri I.K. Chauhan fired three rounds towards terrorists.
The cross firing continued for some time and thereafter when the
firing was stopped, they went near to Indica Car and it was found that
on the rear-seat one terrorist, one terrorist on the driving seat, one
female terrorist sitting next to driver and one terrorist near the
divider, total four terrorists died on the spot.
It was stated in the complaint that all the deceased were terrorist -
Fidayeens of prohibited Lashkar-e-Taiba had the conspiracy to kill the
Chief Minister of Gujarat, Shri Narendra Modi with suicidal attempt,
therefore, they had procured arms and ammunition and wanted to create
terrorist activities in India. The other aspects were also referred in
the complaints of having possession of arms and ammunition of foreign
automatic weapons without licence, without passports, etc., and also
for entering India from Pakistan without there being proper visa. The
alleged offences in the complaint were under Section 3(2)(a) & (c),
13, 14 of the Foreigners' Act, Section 120B, 121, 121A, 122, 123, 307,
553, 186 of IPC, Section 27, 29 of the Arms Act and Section 3(1)(a)(b)
and 3(2), 3(3), 20 and 21 of the Prevention of Terrorism Act and
Section 135(1) of the Bombay Police Act. The accused shown in the
complaint were (1) Jishan Johar @ Jaanbaaz @ Abhas Abdul Gani,
resident of Pakistan and the addressed shown was Nar Nanak Kalerbadi,
District Gujranwala, Punjab, Pakistan, (2) Amjad Ali @ Salim @ Chandu
@ Raj Kumar; (3) Javed resident of Poona and (4) a lady terrorist,
whose name and address was not known. It may be recorded that
thereafter, it has come out that accused No.3 was Javed @ Praneshkumar
Pillai and the lady was Ishrat Jahan Raza.
The investigation of the said complaint was assigned to Ms.Parixita
Gurjar, A.C.P. Mahila, Crime Branch, Ahmedabad City. Further, on
14.7.2004, an application was made to the designated Judge, Pota Court
by the said investigating officer for addition of the charge under
Sections 4 and 5 of Explosive Substances Act and for the offence under
Section 4 and 53 of the Prevention of Terrorism Act (hereinafter
referred to as 'POTA). It appears that when the substantial
investigation was completed and investigation in part was yet to be
completed, at that stage, the mother of deceased Ishrat Jahan named
Mrs.Shamima Kausar Mohammed preferred Special Criminal Application
No.822 of 2004, challenging the action by the police contending that
her daughter has been killed in the fake encounter, therefore, prayed
to direct Central Bureau of Investigation (hereinafter referred to
'CBI' for the sake of convenience) to carry out the investigation of
the complaint registered with DCP, Ahmedabad City by registering the
case with them. The prayer is also made in the said petition to direct
the State to provide adequate compensation to the petitioner but, of
course, no arguments whatsoever were made by the learned Counsel
appearing for the petitioner on the said aspect at all at the time of
final hearing of the matter. Therefore, it can be said that the
petitioner restricted the case to direct the investigation by CBI as
per above referred prayer only.
It appears that in this petition, on September 20, 2004, this Court
had passed the order of issuing notice and interim relief was not
granted at that stage and it was observed that it would be open to the
petitioner to pray the relief after response from the respondent No.5
State of Gujarat. The matter remained as it was and thereafter was
admitted on 18.12.2006 by this Court. In the meantime, the
investigation by Ms.Parixita Gurjar had continued and completed. As
per her investigation, it was a case of genuine encounter and the
report thereafter was also submitted by her to the concerned Court. In
the affidavit filed by her in the said petition, reference to the
investigation is made by her at paragraph 15 of the said affidavit and
she has stated the concluding part of her investigation as under:-

I say that in the light of the above evidence and recoveries, it

becomes quite clear that all the four were part of conspiracy of
Pak-based terrorist outfit, Lashkar-e-Taiba and they were reaching
Ahmedabad with the purpose of killing Shri Narendra Modi (CM/Gujarat).
But for the alertness and bravery of Gujarat Police, they would have
caused great havoc in the State. They were killed during a genuine
police action in self-defence when they fired at the police, which was
later on supported and corroborated by scientific and expert
evidences.

It appears that before the aforesaid matter could be finally heard,

the Magisterial Inquiry under Section 176 of Cr.P.C., was conducted by
Sub-Divisional Magistrate, Ahmedabad. It also appears that the
Sub-Division Magistrate, during the course of the inquiry in the
Inquiry Case No.13/2004, recorded the statements of the witnesses and
he collected further material during the course of the inquiry. Before
the conclusion of the inquiry by the Sub-Divisional Magistrate of
Ahmedabad, it appears that on 10.8.2009, the Sub-Divisional Magistrate
forwarded the papers to the Chief Metropolitan Magistrate for holding
the inquiry by the Judicial/Metropolitan Magistrate in view of the
guidance received by him vide the letter dated 26.6.2009 from the
State Government that the inquiry for the custodial death should be by
the Judicial Magistrate or the Metropolitan Magistrate. The aforesaid
aspect is apparent from the R & P of the learned Metropolitan
Magistrate, which was called for by us during the course of hearing in
Inquiry No.1/2009. It further appears that on 12.8.2009, the Chief
Metropolitan Magistrate, thereafter assigned the matter to the
Metropolitan Magistrate, Court No.1, for holding inquiry. The
proceedings of the said Metropolitan Magistrate, Court No.1 shows that
he received the papers on 12.8.2009 and on 13.8.2009, summons were
issued to Mrs.Shamima Kausar Mohammed, Wife of Mohammed Shamim Raza
and mother of Ishrat Raza, and on 17.8.2009, the summons were issued
to Gopinath Pillai, father of deceased Javed Praneshkumar Pillai and
Sajeda Javed Sheikh. On 31.8.2009, Mrs.Shamima Kausar Mohammed and
Arman M. Salim did not remain present and the Magistrate, in view of
the statement already recorded on 31.8.2004 before the Sub-divisional
Magistrate found it proper not to issue further summons for recording
of the statements. Thereafter, on 3.9.2009, father of the deceased
Javed alias Praneshkumar Pillai, Gopinath Pillai remained present and
his statement was recorded, whereas the wife of Javed, Sajeda did not
remain present, but in view of her statement already recorded before
the Sub-divisional Magistrate dated 10.9.2004, the learned magistrate
found it proper not to issue further summons for recording of the
statement. Thereafter on 7.9.2009, the learned Magistrate has
concluded the inquiry under Section 176 of Cr. P.C., and the report
has been submitted to the Chief Metropolitan Magistrate. The contents
of the said report to the extent found proper would be referred to and
dealt with hereinafter, but the pertinent aspect is that as per the
said report of the learned Magistrate it was a case of fake encounter
and the concerned police officer, with a view to earn favour for
further promotion and appreciation of the Hon'ble Chief Minister, had
hatched the conspiracy.

In the meantime, it appears that the Additional Director General of

Police (CID and Intelligence), Gujarat State, Gandhinagar, held an
inquiry and the report has been submitted to the Director General of
Police by him vide letter dated 14.10.2004 and in his inquiry report,
he has found that Javed and Ishrat and other two Pakistani terrorists,
with a view to achieve the target of pre-planned conspiracy, had
proceeded towards Ahmedabad. He found that all the four persons were
involved in the terrorist activities. It is found by him that the
attempt should be made to get the assistance of Central Intelligence
Authority and there should be exchange of information, which may
result into avoiding such incidents in future. On the aspects of
genuineness of encounter, he has found that the aforesaid all the four
persons have lost their lives in the police encounter. It can be said
that he has concurred with the outcomes of the report of Ms.Parixita
Gurjar.

It appears that the petitioners of Special Criminal Application No.822

of 2004 preferred application to expedite the hearing of Special
Criminal Application No.822 of 2004 and for directing the authority to
supply documents. In the said application on 25.7.2008, the order was
passed by this Court to place the application with the main matter.
Thereafter, it appears that the main matter together with the
aforesaid application came up for hearing before this Court (Coram:
K.S. Jhaveri, J.) and on 13.8.2009 this Court passed the order,
relevant of which reads from paragraphs 2 to 14 as under:-

2. On 7th August 2009 in pursuance of a suggestion to explore the

possibility of handing over the investigation to higher cadres, the
matter was adjourned to today.

3. Heard learned Advocates for the respective parties. Ultimately

there is a consensus that a Investigating Team may be constituted for
the purpose of carrying out the investigation in the aforesaid First
Information Report being C.R. No.8 of 2004 registered with DCB Police
Station, Ahmedabad City.

4. Mr. Trivedi, learned Advocate General has submitted a list of

Police Officers including Additional Director Generals of Police,
Inspector Generals of Police and Deputy Inspector Generals of Police,
Superintendents of Police and Deputy Superintendent of Police. After
discussion Mr. Mukul Sinha, learned Advocate for the petitioner left
the matter to the Court in respect of selection of three officers from
the said list.

5. Therefore, a Team of Investigation of the following three Police

Officers shall be constituted for the purpose of inquiring into the
aforesaid First Information Report:

[1] Shri Promod Kumar, Additional Director General

[2] Shri Mohan Jha, Inspector General

[3] Shri J.K. Bhatt, Deputy Inspector General of Police

Shri Promod Kumar, Additional Director General will be the Convener of

the Team of Investigation.

6. After constitution of the Team, the present investigation officer

shall hand over the relevant materials of the case including record of
investigation done so far to the said Team on demand.

7. It will be open to the petitioner to make suggestions to the

Investigating in the matter of further investigation where the
petitioner feels it necessary.

8. After considering the suggestion of the petitioner it shall be open

to the Investigating Team to decide the line of action of
investigation.

9. The Investigating Team will be entitled to appoint subordinate

officers not below the rank of Police Inspector, as it deem fit, to
assist them in the investigation like recording statement of
witnesses, preparing panchnama, etc.

10. The Investigating Team will consider all the aspects from every
angle, which are relevant for the purpose of finding out whether the
incident was a genuine encounter or a fake one.

11. It will be open to the petitioner to have the inspection of the

record which pertains to the daughter of the petitioner qua the FSL
report and the ballistic report about the car in which the
petitioner's daughter was traveling and if such a request is made the
Investigating Team will give such inspection.

12. The petitioner shall give their suggestion to the Investigating

Team within two weeks from today i.e. on or before 28th August 2008
and the Investigating Team will commence the investigation and
complete the same within three months thereafter i.e. On or before
30th November 2009.

13. The report of the Investigating Team shall be kept on record of

these proceedings before this Court on the next date.

14. The matter is to be treated as part-heard and the same shall be

listed for hearing on 30th November 2009.
It appears that the attention of the Court was not drawn by either
side that the inquiry under Section 176 of Cr.P.C., was on and partly
undertaken by the Sub-divisional Magistrate, and the Sub-divisional
Magistrate, vide letter dated 10.8.2009 had already forwarded the
inquiry to the Chief Metropolitan Magistrate and the Chief
Metropolitan Magistrate had already forwarded the papers to the
Metropolitan Magistrate, Court No.1, for further inquiry under Section
176 of Cr.P.C., on 12.8.2009, nor the copy of the order was forwarded
to the Metropolitan Magistrate that the order dated 13.8.2009 has been
passed by this Court for constitution of SIT and the inquiry to be
made by the SIT.

It appears that on 7.9.2009, as referred to herein above the learned

Metropolitan Magistrate has concluded the inquiry and has given
report. At that stage, initially on 9th September, 2009, Criminal
Misc. Application No.10624 of 2009 in Special Criminal Application
No.822 of 2004 was preferred by Shri Girish Laxman Singal, who is one
of the police officers, involved in the alleged incident of encounter
and prayed to declare that the report dated 7.9.2009 of the learned
Metropolitan Magistrate, in purported exercise of power under Section
176 of Cr.P.C., as null and void and the prayer was also made to issue
appropriate directions to the Investigating Team appointed by this
Court vide order dated 13.8.2009 to continue to proceed ahead with the
task as directed. The prayer was also made to grant interim stay
against the operation of the report dated 7.9.2009 of the learned
Magistrate. Simultaneously, an application was also made being Misc.
Criminal Application No.10621 of 2009 in Special Criminal Application
No.822 of 2004 by Girish Laxman Singal, the very Police Officer to be
impleaded as party in the proceedings of Special Criminal Application
No.822 of 2004.

The another pertinent aspect is that on the very day i.e. on 9.9.2009,
the State of Gujarat, through Secretary, Home Department, preferred
Criminal Misc. Application No.10625 of 2009 in Special Criminal
Application No.822 of 2004 contending that the order passed by the
learned Magistrate dated 7.9.2009 in purported exercise of the power
under Section 176 of Cr.P.C., can be said amounting to over-reach the
process already issued by this Court for constitution of SIT and
further contending that there could not have been any question of
holding inquiry under Section 176(1A) by the learned Magistrate,
therefore, the report of the learned Magistrate is not only without
jurisdiction, but would throttle the conduct of the proceedings
pending before this Court, therefore, the prayer was made to pass the
order for clarification in the matter of above referred order dated
13.8.2009 passed by this Court and the interim prayer was made to stay
execution, operation and implementation of the report of the learned
Magistrate dated 7.9.2009. On 9.9.2009, this Court (Coram:
K.S.Jhaveri, J.) stayed the report and directed for further inquiry
against the learned Magistrate and thereafter, the matter was carried
before the Apex Court and thereafter, vide order dated 19.4.2010, the
Apex Court has directed for final hearing before the Division Bench of
this Court. Hence, the present group of petitions before us.

It may be recorded that as on today, since Criminal Misc. Application

No.10621 of 2009 and No.10624 of 2009 have already been disposed of
vide order dated 9.9.2009 passed by this Court (Coram: K.S. Jhaveri,
J.), we are required to decide Special Criminal Application No.822 of
2004 with Criminal Misc. Application No.10625 of 2009 only, which are
for the prayer of transfer of investigation to CBI with the prayer of
the State to clarify in connection with the report of the learned
Magistrate in the Inquiry under Section 176 of Cr.P.C. Criminal Misc.
Application No.7570 of 2010 is preferred by Gopinath Pillai, father of
Javed @ Praneshkumar Pillai for being joined as party in the
proceedings of Special Criminal Application No.822 of 2004 on the
ground that the son of the applicant was also killed in the said
alleged encounter on 15.6.2004. The aforesaid appears to be in the
proceedings arising from Special Criminal Application No.822 of 2004
preferred by the mother of one of the deceased Ishrat Jahan namely;
Mrs.Shamima Kausar Mohammed.

The State has filed interim application through the Secretary, Home
Department, being Criminal Misc. Application No.13526 of 2009 in Misc.
Criminal Application No.10625 of 2009 in Special Criminal Application
No.822 of 2004 for extension of time of SIT, which came to be
constituted pursuant to the above referred order passed by this Court
on 9.9.2009 as SIT has yet to complete the investigation and the work
undertaken by it.

Special Criminal Application No.1850 of 2009 is preferred by Gopinath

Pillai, the father of the deceased Javed @ Praneshkumar Pillai,
contending, inter alia, that his son was in the business of cosmetic
and it was unbelievable that he was Fidayeen, a dread terrorist, and
contended that his son has been wrongly killed, and the prayer is made
to direct transfer of investigation to CBI. Hence, the prayer made in
the petition is the same as made by the petitioners of Special
Criminal Application No.822 of 2004.

Special Criminal Application No.2012 of 2009 has been preferred by

Shri Girish Laxman Singal, one of the Police Officers involved in the
incident of alleged encounter, for quashing and setting aside the
report dated 7.9.2009 passed by the learned Magistrate under Section
176 of Cr.P.C., by invoking the power by this Court under Article 226
of the Constitution of India read with Section 482 of Cr.P.C.

Criminal Misc. Application No.7503 of 2010 has been preferred by

Mrs.Shamima Kausar Mohammed, who is also petitioner of Special
Criminal Application No.822 of 2004 for being impleaded as party in
the proceedings of Special Criminal Application No.2012 of 2009,
contending that she was required to be impleaded as party in view of
the proceedings of Special Criminal Application No.822 of 2009 and the
other proceedings arising therefrom, including the proceedings before
the Hon'ble Supreme Court of India, but has not been joined,
therefore, she may be permitted to be impleaded as party.

Similar application is made by Shri Gopinath Pillai, father of Javed @

Praneshkumar Pillai, to be impleaded as party in Special Criminal
Application No.2012 of 2009 preferred by Shri Girish Laxman Singal,
the Police Officer for quashing and setting aside the report submitted
by the learned Magistrate under Section 176 of Cr.P.C., being party
interested.
We have heard Mr.I.H. Saiyed, learned Counsel appearing for the
petitioner of Special Criminal Application No.822 of 2004, Mrs.Shamima
Kauser, who is also interested party in the proceedings of other
connected Criminal Misc. Application as well as Special Criminal
Applications, Mr.Mukul Sinha, learned Counsel appearing with
Mr.A.N.Patel, learned Counsel for Gopinath Pillai, father of Javed @
Praneshkumar Pillai, petitioners of Special Criminal Application
No.1850 of 2009 and the other applications made by him being
interested party in the other Criminal Misc. Applications as well as
Special Criminal Applications. We have also heard Mr.Kamal Trivedi,
learned Advocate General for the State of Gujarat in all the matters,
with Mr.J.M. Panchal, learned Special Public Prosecutor. We have heard
Mr.N.D. Nanavati, learned Sr. Counsel with Mr.Mitesh Amin, learned
Counsel for Girish Laxman Singal, Police Officer concerned, petitioner
of Special Criminal Application No.2012 of 2009 and in all other
Criminal Misc. Applications preferred by him in the inter-connected
Special Criminal Application. Mr.P.S. Champaneri, learned Assistant
Solicitor General for the Union of India and Mr.Y.N. Ravani, learned
Counsel for CBI.

The contentions raised by the learned Counsel for the respective

parties shall be dealt with hereinafter to the extent found relevant
for deciding the controversy involved in the present group of
petitions.

The present group of petitions mainly involves, two broad aspects; one
is challenge to the report of the learned Magistrate in the inquiry
under Section 176 of Cr.P.C., and another is for transferring the
investigation to CBI. In the incidental aspect, which may also be
required to be considered to the extent for consideration of the
aforesaid two broad aspects are the exercise of the power of this
Court under Section 226 of the Constitution of India for entertainment
of a petition, challenging the report of the Magisterial Inquiry under
Section 176 of Cr.P.C., and another is for protecting the rights of
the citizens under Article 21 of the Constitution of India. The third
aspect, which may also be required to be considered is that whether
the investigation deserves to be made in the alleged encounter if yes,
by whom, so as to protect the rights of the citizens as against the
powers exercised by the police officers. But at the same time, we have
to keep in mind that the matter is not at the stage of investigation
and we have to consider as to whether the alleged incident calls for
any further investigation or not and observations to that extent only,
keeping in view that the rights of either side may be of the accused
or of the victims or all the concerned, may not be prejudiced, in any
manner, if ultimately any trial is to take place. Incidentally, the
aspects of the role of the State or the approach of the State in such
matter also would be an aspect to be considered by us.

It is a fact that the incident is of alleged encounter. The following

aspects are undisputed;

(a) The registration of FIR by the police officer against the alleged
accused, who are stated to be terrorists;

(b) The incident of alleged encounter and loss of lives by all the
four persons, including Javed @ Praneshkumar Pillai and Ishrat Jahan;
(c) The investigation made by police officer, Ms.Parixita Gurjar and
she having found the encounter genuine and also having found the
conspiracy hatched by the alleged terrorists for killing the Chief
Minister of the State.

In inquiry report of the learned Magistrate shows that the encounter

is not genuine, but a fake one and it has been stated that the same is
out of the conspiracy hatched by the police officer to earn credit for
promotion and appreciation from Hon'ble Chief Minister of the State.
It is in this light of the aforesaid facts situation, we are required
to examine various aspects referred to herein above.
As the magisterial inquiry and the report submitted by the learned
Metropolitan Magistrate is one of the strong basis by the petitioner
of Special Criminal Application No.822 of 2004 and No.1850 of 2009,
before we proceed to examine the aspects of investigation, if any, and
the further aspects relating thereto, it would be appropriate to first
consider and examine the legality and validity of the report of the
learned Magistrate.

It was contended by Mr.Nanavati, learned Counsel for the concerned

Police Officers and Mr.Kamal Trivedi, learned Advocate General that
the report of the learned Magistrate under Section 176 is without
jurisdiction. It was also submitted that the same could also be said
as to over-reach the judicial process and the orders passed by this
Court in Special Criminal Application No.822 of 2004. It was
alternatively submitted that even if this Court finds that the learned
Magistrate had power to hold an inquiry under Section 176(1A) of
Cr.P.C., then also the finding recorded by the learned Magistrate in
the inquiry are absolutely perverse, not supported by any material
whatsoever and also without following the mandatory procedure,
therefore, it was submitted that the report be quashed and set aside
and such report cannot be at all considered by this Court for further
considering the matter on the aspects of transfer of investigation to
any SIT or any other agency.
Whereas Mr.Syed as well as Mr.Sinha, learned Counsel appearing for
respective parties, who are parents of the deceased, contended that
the learned Magistrate was well within his power to inquire and to
submit report, therefore, it cannot be said to be without
jurisdiction. It was also submitted that the State, which is otherwise
required to protect the rights of the citizen as against the police
officer, should not and cannot challenge the report of the learned
Magistrate, even if its own officers are to face consequences on
account of such report.

It was submitted that the finding of the learned Magistrate is with

the basis and even if two views are possible, the matter would require
further investigation or inquiry. It was also submitted that at the
stage of the report under Section 176 Cr.P.C., by the learned
Magistrate, the petition for challenging the legality and validity of
the report, either by the State or by the concerned Police Officer,
who are involved in the incident, cannot be maintained under Section
482 of Cr.P.C., or under Article 226 or 227 of the Constitution of
India. It was submitted that when the matter is at the stage of
inquiry under Section 176 Cr.P.C., and the registration of FIR is yet
to take place against the concerned Police Officers, it cannot be said
that any right is prejudiced or any right has accrued to the proposed
accused, who are police officers to challenge the said report and
thereby to stall the further process of law. In the submission of both
the learned Counsel for the aforesaid parties, the report of the
learned Magistrate is valid and the challenge to the said report
cannot be entertained by this Court and may further be considered by
this Court for the purpose of considering the matter for investigation
through the other independent agency like CBI.

Whereas, the learned Assistant Solicitor General for the Central

Government supported the report of the learned Magistrate by
contending that the same is within the jurisdiction of the learned
Magistrate and cannot be termed as without jurisdiction. The role of
CBI, in any case, would arise only if the inquiry or investigation is
assigned to CBI by this Court, therefore, on behalf of CBI, no
submissions have been made on the said aspect, about the legality and
validity of the report of the learned Magistrate.
Section 176 of Cr.P.C., prior to the amendment of 2005 reads as under :-
Section 176 of the Code of Criminal Procedure, 1973 (prior to
amendment made in 2005) :

When any person dies while in the custody of the police or when the
case is of the nature referred to in clause (i) or clause (ii) of
sub-section (3) of Section 174], the nearest Magistrate empowered to
hold inquests shall, and in any other case mentioned in sub-section
(1) of Section 174, any Magistrate so empowered may hold an inquiry
into the cause of death either instead of, or in addition to, the
investigation held by the police officer, and if he does so, he shall
have all the powers in conducting it which he would have in holding an
inquiry into an offence.

The Magistrate holding such an inquiry shall record the evidence taken
by him in connection therewith in any manner hereinafter prescribed
according to the circumstances of the case.

Whenever such Magistrate considers it expedient to make an examination

of the dead body of any person who has been already interred, in order
to discover the cause of his death, the Magistrate may cause the body
to be disinterred and examined.

Where an inquiry is to be held under this section, the Magistrate

shall, wherever practicable, inform the relatives of the deceased
whose names and addresses are known, and shall allow them to remain
present at the inquiry.

Section 176, after the amendment w.e.f. 23.6.2006 reads as under :-

Section 176 of the Code of Criminal Procedure, 1973 (after to
amendment made in 2005 w.e.f. 23.6.2006):-

[***] When the case is of the nature referred to in clause (i) or

clause (ii) of sub-section (3) of Section 174], the nearest Magistrate
empowered to hold inquests shall, and in any other case mentioned in
sub-section (1) of Section 174, any Magistrate so empowered may hold
an inquiry into the cause of death either instead of, or in addition
to, the investigation held by the police officer, and if he does so,
he shall have all the powers in conducting it which he would have in
holding an inquiry into an offence.
[(1A) Where, (a) any person dies or disappears' or

(b) rape is alleged to have been committed on any woman, while such
person or woman is in the custody of the police or in any other
custody authorised by the Magistrate or the Court, under this Code in
addition to the inquiry or investigation held by the police, an
inquiry shall be held by the Judicial Magistrate or the Metropolitan
Magistrate, as the case may be, within whose local jurisdiction the
offence has been committed.]

The Magistrate holding such an inquiry shall record the evidence taken
by him in connection therewith in any manner hereinafter prescribed
according to the circumstances of the case.

Whenever such Magistrate considers it expedient to make an examination

of the dead body of any person who has been already interred, in order
to discover the cause of his death, the Magistrate may cause the body
to be disinterred and examined.

Where an inquiry is to be held under this section, the Magistrate

shall, wherever practicable, inform the relatives of the deceased
whose names and addresses are known, and shall allow them to remain
present at the inquiry.

The Judicial Magistrate or the Metropolitan magistrate or Executive

Magistrate or police officer holding an inquiry or investigation, as
the case may be, under sub-section (1A) shall, within twenty-four
hours of the death of a person, forward the body with a view to its
being examined to the nearest Civil Surgeon or other qualified medical
man appointed in this behalf by the State Government, unless it is not
possible to do so for reasons to be recorded in writing.]

Explanation. In this section, the expression 'relative' means

parents, children, brothers, sisters and spouse.

The aforesaid shows that prior to 23.6.2006, the magisterial inquiry

in all cases, for the cause of death was to be held by the Magistrate
empowered to hold inquest, which, in the State of Gujarat, is
Sub-divisional Magistrate/Executive Magistrate concerned of the area.
Whereas, after 23.6.2006, in a case where the death is in the custody
of the police, or in any other custody authorised by the Magistrate or
the Court, the inquiry is to be held by the Judicial Magistrate or the
Metropolitan Magistrate, as the case may be, within whose jurisdiction
the offence has been committed. Further Sub-section (5) of Section
176, after amendment on 23.6.2006, shows that the Magistrate concerned
will have the power to forward the body of the deceased to Civil
Surgeon or other qualified Medical man. It is true that the date of
incident is 15.6.2004. Therefore, the aspect of applicability of the
amended provisions of the Act may also be required to be considered.

The learned Counsel for the police officer and the State did contend
that as the incident is during the period prior to the Amendment,
Metropolitan Magistrate had no authority to hold the inquiry and the
inquiry, if any, could be held by Sub-divisional Magistrate. It was
also submitted that in a case of encounter, even otherwise also it
cannot be said that the person has expired in the police custody,
therefore, even if considered that the amendment applies, the
requirement of Section 176(1A) were not satisfied, therefore, also the
learned Magistrate could be said as had no jurisdiction.

Holding of an inquiry, in our view, can be said as provision of law

regulating the procedure for the inquiry in the case of custodial
death. It is by now well settled that when any procedural law is
amended by the Legislature or Parliament, it will have a retro-active
character and to be applied retrospectively namely; that it would
apply to all pending cases covered by the said provision. The
reference can also be made to the decision of the Apex Court in the
case of 2006 (1) SCC 141 Sudhir G. Angur & Ors. Vs. Sanjeev and Ors.,
reported in (2006) 1 SCC, 141 and more particularly the observations
made by the Apex Court at paragraph 11 of the said decision on page
147 and 148. Therefore, it is not possible to accept the contention of
the learned Counsel Mr.Nanavati as well as Mr.Trivedi, learned
Advocate General that merely because the incident is of 15.6.2004, the
amended provisions of Cr.P.C., under Section 176(1A) would not apply.
We are inclined to take the aforesaid view, in view of two further
peculiar circumstances; one is that the inquiry before the
Sub-divisional Magistrate prior to 23.6.2006 was not completed and had
the inquiry been completed prior to the amendment the matter would
have been different. Second is that as per the opinion of the State
Government itself, vide above referred letter addressed by the
Sub-divisional magistrate to the Chief Judicial Magistrate, pending
inquiry in the case of custodial death were to be assigned to the
Judicial Magistrate or the Metropolitan Magistrate of the area
concerned.

On the aspects of no applicability to the provisions of Section

176(1A), in the case of a death in police encounter , we find that
such contention raised by Mr.Nanavati as well as learned Advocate
General Mr.Kamal Trivedi is meritless inasmuch as the interpretation
of the word 'custody' as sought to be canvassed, if restricted to only
actual physical custody, after arrest, it would result into
frustration of the intention of the Parliament for holding of judicial
inquiry by the Magistrate concerned. Even otherwise also the word
'custody' is not defined under Code of Criminal Procedure. Therefore,
custody is to be understood in normal parlance as against the police
powers. Literal meaning of the word 'custody' would mean to get
control of the physique or the movement of the person concerned. Such
control can be by putting the person behind bars and it can only be by
controlling the physical movement of the person concerned. In the case
of Niranjan Singh and Anr. Vs. Prabhakar Rajaram Kharote and Ors.,
reported in AIR 1980 SC 785, the Apex Court at paragraph 7, while
interpreting the word 'custody' within the meaning of Section 437 of
Cr.P.C., observed the relevant of which reads as under :-

7. ... This word is of elastic semantics but it score meaning is that

the law has taken control of the person. The equivocatory quibblings
and hide-and-seek niceties sometimes heard in court that the police
have taken a man into informal custody but not arrested him, have
detained him for interrogation but not taken him into formal custody
and other like terminological dubieties are unfair evasions of the
straightforwardness of the law. We need not dilate on this shady facet
here because we are satisfied that the accused did physically submit
before the Sessions Judge and the jurisdiction to grant bail thus
arose.

Further, it was observed at paragraph 9 as under:-

9. He can be in custody not merely when the police arrests him,
produces him before a Magistrate and gets a remand to judicial or
other custody. He can be said to be in judicial custody when he
surrenders before the Court and submits to its direction. ...

The present case is a case of police encounter, where the police

officers in exercise of their powers wanted to effect the arrest and
at that stage when they wanted to intercept the car and catch hold of
the persons in order to apply force, may be by way of self-defence,
the incident had happened. Therefore, it can be said that the police
while controlling the physical movement of the alleged accused have
exercised their police power and such being the situation, it can be
said that the provisions of death in the custody for the purpose of
holding inquiry can be made applicable.

The reference may also be made to the decision of Division Bench of

the Allahabad High Court in the case of Hari Krishna Maheshwari @ Hari
Maheshwari Vs. State of U.P., reported in 1997(1) Crimes 432 and the
observations made at paragraph 18, the relevant of which reads as
under :-

Accordingly, we are of the view that the opening words of Section

176(1) of the Code of Criminal Procedure, namely; When any person
dies while in the custody of the police should be interpreted also to
mean that Whenever the police claims to have killed any person in
encounter. This interpretation of Section 176 of the Code of Criminal
Procedure will ensure protection of Human Rights in all cases of death
where the police claims to have killed the person in encounter and in
such cases, the Magistrate will be under an obligation to inform the
relatives of such person. This also will safeguard any clandestine
effort on the part of the police to kill a person in its custody and
then claim that the person has been killed in an encounter.

The reference may also be made to another decision of the decision of

the Apex Court in the case of State of A.P. v. Gangula Satya Murthy,
reported in (1997) 1 SCC, 272 and more particularly the observations
made at paragraph 19, relevant of which reads as under :-

19. The other reasoning based on Section 26 of the Evidence Act is

also fallacious. It is true any confessions made to a police officer
is inadmissible under Section 25 of the Act and that ban is further
stretched through Section 26 to the confession made to any other
person also if the confessor was then in police custody. Such
'custody' need not necessarily be post-arrest custody. The word
'custody' used in Section 26 is to be understood in a pragmatic sense.
If any accused is within the ken of surveillance of the police during
which his movements are restricted then it can be regarded as
custodial surveillance for the purpose of the section. If he makes any
confession during that period to any person be he not a police
officer, such confession would also be hedged within the banned
contours outlined in Section 26 of the Evidence Act.
Therefore, it is not possible for us to accept the contention that the
report of the learned Magistrate is without jurisdiction or
competence, since the same is that the incident prior to 23.6.2006 or
that since there was no formal arrest, they were not in the police
custody, even if the amended provisions were to apply to the incident
prior to 23.6.2006.
Much grievance has been raised by the learned Counsel for the police
officer Shri N.D. Nanavati and Shri Kamal Trivedi, Advocate General
for the State on the aspects of findings recorded by the learned
Magistrate on the surmises and conjunctures and not supported by any
valid material for such purpose. Whereas, the learned Counsel
appearing for the relatives of the deceased supported the report of
the learned Magistrate under Section 176 of Cr.P.C.
In order to trace the material in support of the findings we had
called for the record and proceedings of the learned Magistrate. It is
true that on the aspects of any alleged conspiracy to earn credit and
thereby to have promotion in the service and to have appreciation of
the Hon'ble Chief Minister by the police officer, the findings
recorded by the learned Magistrate are absolutely without there being
any material for such purpose.
Further it was not for the learned Judicial Magistrate to opine for
the consequential benefits as ought to have been or could have been
derived by the concerned Police Officers. Even if it is considered
that such aspects had any relevance for the purpose of tracing the
motive being one of the causes of death, it must be supported by any
evidence or material on record. There is no material as observed
earlier in the file of the learned Magistrate to record the findings
in the inquiry as stated in the report. Therefore, to that extent such
findings can be said as without there being any material whatsoever.
But the matter does not end there on the aspects of other findings
recorded by the learned Magistrate based on; (1) the presence of well
developed rigor mortis on the body of the deceased at the time of
postmortem; (2) the ballistic report for the use of the bullet; (3)
non-availability of the signs of gun-powder in the hand-wash report;
(4) the entry and exit wounds of the bullet marks on the body of the
person concerned; (5) the bullet marks on the vehicles, Indica Car
could not be said to be without there being no existence Of such
probabilities, nor can it be said without there being absolutely no
material whatsoever for such purpose. We may record the word of
caution that our aforesaid observations are limited to the extent of
considering the report of the learned magistrate only for the purpose
of examining the controversy as to whether the further investigation
is called for or not and it will neither be considered as a prima
facie observations, nor shall it be considered as a finding by this
Court, in any manner whatsoever, which may prejudice the rights of
either party to the proceedings at the further investigation, if it is
so ordered or at the trial, as the case may be.

But at the same time, it does appear to us that the learned Magistrate
has shown undue haste in concluding the inquiry without taking
assistance of the experts, which was as such required in view of the
complicated issues as were to be considered by him for the purpose of
tracing the truth as to whether the probabilities, which he has
considered is near to the truth or not or same is supported by other
experts or not. It is hardly required to be stated that the learned
Magistrate had the power as if the inquiry could be held by him in
connection with any offence committed within his jurisdiction and the
span of such inquiry could be extended to as if the inquiry under
Section 202 of Cr.P.C., which pertains to the inquiry when a complaint
is received for any offence, but the learned Magistrate proposed to
hold the inquiry by just issue of process. It does appear that span of
inquiry and the scope and ambit of the power of the learned
Magistrate, which appears to us as has not been fully considered by
the learned Magistrate and the learned Magistrate, upon having acted
on the statements as were recorded by the Sub-divisional Magistrate,
has proceeded to examine the matter and has recorded the findings.
Further, the original record shows that all proceedings of
Rjokam/daily sheets are written on plain paper sheets and not printed
papers used for writing the Court proceedings. Further, the whole
inquiry report of more than 200 pages is hand-written. Hence, as
observed earlier, such an approach could be said as an undue haste
shown by the learned Magistrate in concluding the inquiry, which, to
us, remains unexplained. But if the finding in the report is supported
by the material its efficiency would not be lost, nor any finding can
be considered in absence of any material for such purpose.

The aforesaid takes us to examine the value to be attached to the

report of the learned Magistrate in a case where the cause of death
found by the learned Magistrate other than what is reported to him by
any informant or the police, as the case may be. In a case where the
cause of death found by the learned Magistrate is not in conformity
with the information supplied to him and he finds that the cause of
death is otherwise, may be on account of the fake encounter or the
police officers have exceeded the exercise of the power or that any
evidence is suppressed and is wrongly shown as an accidental death,
then in that case, the report of the Magistrate could be said as
having a recommendatory value to the State or the victim, as the case
may be, for further putting law into motion. May be that the victim
may file complaint or the State, through its officers, in order to see
that the law is further put into motion may get the complaint
registered against the alleged offender on account of the report of
the learned Magistrate. At that stage, once the FIR is registered, the
investigation is to be independently conducted by the investigating
officer in an impartial manner and any statement made either before
the police in the inquiry of accidental death or before the learned
Magistrate in the inquiry under Section 176, may hold good only to the
extent of getting clue for the further investigation and for the
information by the investigating officer and it would be for the
investigating officer to further examine the matter and to apply his
mind independently. Even after the investigation is concluded and the
trial is to take place, at that stage also, any statement recorded
before the learned Magistrate in the inquiry would not be treated as
an evidence for such trial, save and extent for the purpose of
impeaching the credibility of the witnesses as per the Evidence Act,
if the contingencies so arise. Reference may be made to the decision
of the Apex Court in the case of Gauri Shanker Sharma v. State of
U.P., reported in 1990 (Suppl.) SCC, 656, and more particularly the
observations made by the Apex Court at paragraph 6, the relevant of
which reads as under :-

6. ... However, the evidence of PW 6 was challenged on the ground

that he had in his statement before M.M. Swarup, Executive Magistrate,
affirmed the defence of AI that the deceased was apprehended from near
a culvert in village Harma-Harora on 20.10.1971. The learned trial
Judge negatived this contention as the certified copy of the statement
said to have been made to M.M. Swarup in an enquiry under Section 176
of the Code of Criminal Procedure was inadmissible in evidence since
the said enquiry could not be equated to a judicial proceedings and
was, therefore, inadmissible in evidence. He was of the view that the
same could not be admitted in evidence under Section 90 of the
Evidence Act. In this view the proper course was to call for the
original statement, confront the witness with the contradictory part
and on proof use it as evidence to discredit the witness. We agree
with the learned trial judge that the contents of a certified copy of
the statement recorded under Section 176 of the Code would not be
admissible in evidence unless the contradiction is proved by putting
it to the witness in cross-examination and the maker has had an
opportunity to admit or deny it. In our view it has to be proved like
any other previous statement. ... (Emphasis supplied)

It is in this light of the aforesaid evidentiary value we have to

further examine the aspects for maintainability of petition preferred
by the Police Officer for quashing and setting aside the report of the
learned Magistrate and also the contention raised by the State for
clarification in connection with the report of the learned Magistrate.

If the report is to hold only a recommendatory value by way of fact

finding inquiry, it is not possible for us to accept the contention of
the learned Counsel appearing for the police officer, Shri N.D.
Nanavati that the concerned person, who is referred to in the report
under Section 176 of the Cr.P.C. will have right to challenge such
report. At the same time, it is not possible for us to accept the
contention of the learned Counsel for the relatives of the deceased
that the functioning by the learned Magistrate or the report submitted
by him is beyond the scope for exercise of the power by this Court
under Article 226 of the Constitution. It is hardly required to be
stated that the power of this Court under Article 226 of the
Constitution is wide enough to cover the functioning of a statutory
authority may be on administrative side or may be on judicial side.
Even if it is considered for the sake of consideration that the report
of the learned Magistrate is like an administrative decision under
Section 176 of Cr.P.C., then also it is by now well settled any
administrative act of any State or its agency is subject to judicial
review under Article 226 of the Constitution of India. If the
functioning of the learned Magistrate, if considered for the purpose
of holding inquiry, though the ultimate outcome at the inquiry may
have only recommendatory value and no prejudice is caused to the
rights of any party who are directly or indirectly connected
therewith, then also it would not be outside the scope of Article 226
of the Constitution of India. It is also by now well settled that
functioning by any authority in the matter of holding inquiry, may be
either affecting adversely any party or otherwise would also be
subject to judicial review under Article 226 of the Constitution. But
at the same time, the jurisdiction of this Court under Article 226 is
discretionary and there are self-imposed restrictions. Further, unless
it is satisfactorily demonstrated before the Court that any prejudice
is caused to the party, which invokes the jurisdiction before this
Court under Article 226 of the Constitution, this Court may decline
the entertainment of the dispute or may decline the exercise of the
power under Article 226 of the Constitution of India, either by
applying the theory of useless formality or no useful purpose is to be
served or by declining the exercise of the discretionary jurisdiction,
may be on the ground that no prejudice is caused by an outcome of the
report or may be on the ground that further process of putting the law
into motion is sought to be throttled at the initiation or inception
notwithstanding the availability of all rights and defence to the
proposed accused, if the complaint is registered for the offence based
on such report. It is also by now well settled that if the complaint
is filed before the Magistrate under Section 201 of Cr. P.C., and the
Magistrate decides to hold the inquiry and the findings at the inquiry
is recorded, but until the process is issued to the accused, the
proposed accused has no say in the matter, nor has he any right to
challenge or interfere in the proceedings at the stage of holding the
inquiry at the stage of inquiry under Section 202 of Cr.P.C.
Therefore, keeping in view the said aspect, the maintainability is to
be considered. We find that keeping in view the aforesaid facts and
circumstances, it would not be a case to exercise the power under
Article 226 of the Constitution of India at the instance of the
petitioner, who is a police officer and thereby to quash and set aside
the report of the learned Magistrate under Section 176 of Cr.P.C..
However, so far as certain observations made by us to the report of
the learned Magistrate is concerned, we may further observe that the
same are only to the extent of further considering the case as to
whether the investigation is to be made for finding out the
genuineness of the encounter and the assignment of the investigation
to any agency or not as prayed by the relatives of the victims while
exercising the power under Article 226 of the Constitution of India,
more particularly because of the stand of the State Government for not
accepting the report and taking up of the stand that the State
Government has a different view against the report of the learned
Magistrate. It is under these circumstances, we have examined the
report of the learned Magistrate for further putting the law into
motion while exercising power under Article 226 of the Constitution of
India, as the prayer of the petitioners, who are relatives of the
victim is to further investigate into the complaint by transferring
the investigation to other agency. The observations made by us may not
be understood to mean that we have exercised the power under Article
226 of the Constitution at the instance of the police officers, who
are referred to in the report of the learned Magistrate or even at the
instance of the State, which has also challenged the report of the
learned Magistrate, but such observations are for examination of the
report for considering the case of petitioners, who are parents of the
deceased for appropriate directions in the matter after considering
the stand of the State Government.

At this stage, we also find it proper to observe that in a matter

where the learned Magistrate has reported in the inquiry under Section
176 of Cr.P.C., in the case of custodial death or an encounter of such
type, it would hardly be fair on the part of the State to side with
any persons, who are referred to or found to have been involved in the
incident. The role of the State is to exercise and supplement its
sovereign power. The substratum of such sovereign power could be
maintained only if the State takes all care to see that the offenders
are booked and the innocent persons are not harassed. The State, in
any action against any offender, must be the pioneer in putting the
law into motion and the State has the domain of the prosecution
against the accused in the prevailing system of administration of
justice. The role of the State being a welfare State is expected to be
of an independent and neutral role, without siding with either
parties, may be its own officer or the citizen in a case when the
matter pertains to commission of offence. The attempt on the part of
the State would be to explore the truth and to supplement the action
in furtherance of tracing or exploring the truth. The welfare State
cannot be expected to throttle any process, including that of by
initiation of any action in the Court of law, which may have adverse
effect in putting the law into motion. The reason being that it is for
the State to ensure the enforcement of law. In a democratic welfare
State the role of the State has to be in furtherance to enforcement of
the law and not for creation of any hurdle, obstacle or hindrance,
which may result into throttling any process of smooth enforcement of
law. But thereby it cannot be said that the State will have no remedy
whatsoever, if it finds that the report of the learned Magistrate is
beyond jurisdiction or unwarranted. As observed earlier, if the report
of the learned Magistrate under Section 176 is to be treated as having
recommendatory value, it is for the State to normally accept the
report and to decide whether any further action is called for or not.
If there are extraordinary very strong and valid reasons for
non-enforcement of the report of the learned Magistrate, it may do so,
but such decision of the State action would be subject to judicial
review of this Court under Article 226 of the Constitution of India.
If, while taking such decision, there is dereliction or abdication by
the State has itself from its statutory duty cast upon it or has
failed to maintain the principles of welfare State for enforcing the
rule of law, the Constitutional Court under Article 226 of the
Constitution would be well within its power to issue appropriate
mandamus to the State and the parties affected thereby may have
recourse to law as permissible. All such observations lead us to
record one conclusion that the State is expected to function in an
impartial manner, in cases where the question is for enforcement of
law in connection with the alleged offence or in connection with the
fact finding inquiry to be held by the competent authority concerned.
If the action of the State is tested in that light, it does appear to
us that the State could have avoided the course adopted by it for
challenging the report of the learned Magistrate under Section 176 of
Cr.P.C., by invoking the powers of this Court under Code of Criminal
Procedure or under Article 226 of the Constitution of India, as the
case may be, but it appears that as this Court, at the relevant point
of time, had also directed for investigation by SIT and the process
was on, the action for clarification could not be said to be without
any justification whatsoever but we cannot countenance the approach of
the State for challenging the report of the learned Magistrate on the
other grounds as stated in the application made by the State and of
making submissions, which, if accepted would result into throttling
the process for enforcement of law.

Under these circumstances, we find that when this Court is to finally

consider and rule on the aspects of whether further investigation is
to be made or not and if yes by whom, including the present SIT or
otherwise, no useful purpose would be served in further recording the
conclusion on the aspects of the role of the State, but suffice it to
state that the challenge made by the State to the report of the
learned Magistrate under Section 176 of Cr.P.C., cannot be sustained
at the instance of the State.

The aforesaid takes us to further examine the aspects of the

substantial controversy to be considered for further inquiry or
investigation in the alleged incident and if yes, by whom ?

As recorded by us earlier, as per the report of the investigation made

by the Police Officer, Ms.Parixita Gurjar, the incident of encounter
was found to be genuine. It has also transpired in her investigation
that all the four persons were terrorists, out of which, two were
Pakistanis and members of Lashkar-e-Taiba and the other two persons
namely; Javed @ Praneshkumar Pillai and Ishrat Jahan were Indian
nationals, but associated with the activities of Lashkar-e-Taiba and
all the four persons had hatched conspiracy of killing the Chief
Minister of Gujarat State and for such purpose, they had entered
Ahmedabad as per the accusation made in the FIR.

As per the investigation made by Special Additional DIG (CID and

Intelligence), there was no further detailed investigation, but he has
mainly relied upon the statements recorded before the Investigation
Officer, Ms.Gurjar and on the aspects of genuineness of the encounter,
he has found that all the four persons have lost their lives in the
police encounter. In substance, as observed earlier, he has concurred
with the report of Ms.Gurjar, Investigating Officer.

In an inquiry under Section 176 of Cr.P.C., it does appear that the

statements were recorded of all the persons, except Mr.Gopinath
Pillai, before the Sub-divisional Magistrate and even for Mr.Gopinath
Pillai, the statement was earlier recorded, but in response to the
summons issued by the learned Metropolitan Magistrate, statement was
given by him. The learned Metropolitan Magistrate has, for all the
purpose, had no material, except the material as was submitted before
the Sub-divisional Magistrate and the statement of Mr.Gopinath Pillai,
which is said to have been recorded before him. The findings of the
learned Magistrate in the report on certain aspects, if considered, it
appears that he has been guided by the presence of rigor mortis
well-developed on the entire bodies of the deceased, therefore, he has
drawn the inference that the death of Javed @ Praneshkumar Pillai and
Ishrat Jahan could be within 12 to 24 hours prior to the postmortem
i.e. between 3.40 p.m. of the 14th day of June 2004 and 3.40 a.m. of
the 15th day of June, 2004. The second aspect considered by the
learned Magistrate is on the exist and entry wounds of the bullet
injuries sustained by both the deceased, therefore, he has drawn
inference that the bullets must have been fired from close range, as
the exit wounds in the body caused by the bullets were larger in size
than the entry wounds, the bullets were not fired from a distant
place, as stated in the encounter report. The learned Magistrate, in
view of the absence of remains of exploded ammunition in the form of
nitrite and lead from the samples of the hand wash of both the
deceased, as per the FSL Report, has drawn inference that the deceased
did not operate any weapon with either of their hands. As per the
postmortem report of both the deceased, bullets were found near the
body of the deceased and the FSL Ballistic Report shows that such
bullets are common for both AK 47 and AK 56 Rifle, but the learned
Magistrate has found that the firing has been made from AK 56 Rifle
and not Government AK 47 Rifle, therefore, he has drawn the inference
of non-genuineness of the encounter, but such inference can be said to
be doubtful. Even on the aspects of undigested food particles found
from the bodies of the deceased, the learned Magistrate, for the
purpose of drawing inference, has taken the estimated time for
consumption of food by both the deceased and has drawn the inference
that on 14.6.2004 both the deceased must have died and such inference
is also doubtful. It is true that on the aspects of operative
activities of the deceased as terrorists, the learned Magistrate has
recorded the findings and drawn the inference, which, as such, is not
supported by any record of the investigation made by the
Sub-divisional Magistrate prior to the papers received by him, nor any
material produced before him and further his finding against the
police officers for earning credit and to have promotion by getting
appreciation of the Honble Chief Minister, by showing the incident of
encounter of terrorists also appears to be, not at all supported by
any material whatsoever. Therefore, if the aforesaid findings recorded
by the learned Metropolitan Magistrate are considered, mainly on the
aspects of approximate time of death and on the aspect of bullets
fired from the weapon at a close range, and the finding that the
deceased had not fired any weapon, even if not given full weightage,
as sought to be described by the learned Magistrate and are treated as
having a recommendatory value, then also it can be said as a
reasonable probability expressed by the learned Metropolitan
Magistrate in the Inquiry under Section 176 of Cr.P.C., on the basis
of the materials as referred to hereinabove.

The aforesaid is coupled with two relevant circumstances emerging from

the report of the SIT constituted pursuant to the earlier order passed
by this Court that the weapons, which were used by the Police
Officers, who fired at the deceased, had not been deposited with the
SIT and the same had not been sent for ballistic opinion to the
Forensic Science Laboratory, meaning thereby, the weapons were not
recovered by the Investigating Officer for getting the ballistic
opinion in the course of the investigation when was made either by
Ms.Parixita Gurjar, or by Shri Mahapatra, Additional DGP. Further in
the very report of SIT, it has been stated that the telephone/mobile
call details of the concerned Police Officers are yet to be collected,
which means that the call details of the Police officers at the
relevant point of time were not collected by the Investigating
Officer, who undertook the investigation. Both the aforesaid aspects
go to show that the incident of encounter is further required to be
investigated. The another aspect, which may have the bearing to the
investigation is that at the time when the interim order was passed by
this Court for constitution of SIT, the State had also agreed for
further investigation. The aforesaid circumstances can be said as
valid basis for further investigation to find out as to whether the
encounter was genuine or the deceased were killed prior to the alleged
encounter.

Attempt was made by Mr.Trivedi, learned Advocate General as well as

Mr.Nanavati, learned Counsel for the concerned Police Officer to
contend that when the police officers in discharge of their duties,
with a view to curb terrorist activities and thereby for the safety of
the State, have exercised the power, the champions of human rights are
making hue and cry by pointing the finger at the police officers and
thereby creating obstacles in discharge of their duties. It was
submitted that as per the investigation made so far by the
Investigating Officer of the rank of Assistant Commissioner of Police
and the further inquiry made by the Additional DGP, all the four
deceased were rank terrorists and they were involved in terrorist
activities, therefore, this Court, keeping in view the said aspects,
may not give much consideration when a complaint is brought by the
relative just by saying that the encounter was a fake one and there
was no genuine encounter by projecting them as law-abiding citizens or
not involved in the terrorist activities.

It is true that the investigation so far did reveal for the alleged
association of both the deceased namely; Javed @ Praneshkumar Pillai
and Ishrat Jahan, but if the genuineness of the encounter is at doubt,
this Court cannot proceed on the basis that since the deceased were
associated with the terrorist activities, even if their close
relatives so desire by invoking the power of this Court, the same
should be discarded on a mere ground that the persons concerned were
associated with the so-called terrorist activities.

At this stage, we may profitably advert to the views expressed by the

Apex Court in the case of Peoples Union for Civil Liberties Vs. Union
of India and Anr., reported at (1997) 3 SCC 433 and more particularly
the observations by the Apex Court at paragraph 6, the relevant of
which reads as under :-

6. ...It is true that Manipur is a disturbed area, that there appears

to be a good amount of terrorist activity affecting public order and,
may be, even security of that State. It may also be that under these
conditions, certain additional and unusual powers have to be given to
the police to deal with terrorism. It may be necessary to fight
terrorism with a strong had which may involve vesting of good amount
of discretion in the police officers or other paramilitary forces
engaged in fighting them. If the version of the police with respect to
the incident in question were true, there could have been no question
of any interference by the court. Nobody can say that the police
should wait till they are shot at. It is for the court to say how the
terrorists should be fought. We cannot be blind to the fact that even
after fifty years of our independence, our territorial integrity is
not fully secure. There are several types of separatist and terrorist
activities in several parts of the country. They have to be subdued.
Whether they should be fought politically or be dealt with by force is
a matter of policy for the Government to determine. The courts may not
be the appropriate forum to determine those questions. All this is
beyond dispute. But the present case appears to be one where two
persons along with some others were just seized from a hut, taken to a
long distance away in a truck and shot there. This type of activity
cannot certainly be countenanced by the courts even in the case of
disturbed areas. If the police had information that terrorists were
gathering at a particular place and if they had surprised them and
arrested them, the proper course for them was to deal with them
according to law. Administrative liquidation was certainly not a
course open to them.
In the very judgement, the Apex Court referred the decision of the
Division Bench of the Andhra Pradesh High Court in the case of Challa
Ramkonda Reddy v. State of A.P., wherein it has been observed as
under:-

In our opinion, the right to life and liberty guaranteed by Article

21 is so fundamental and basic that no compromise is possible with
this right. It is 'non-negotiable'. ... The State has no right to take
any action which will deprive a citizen of the enjoyment of this basic
right except in accordance with a law which is reasonable, fair and
just.

Therefore, we cannot countenance the contention that no investigation

is called for even if the genuineness of the encounter is at doubt. It
is hardly required to be stated that if the deceased have lost their
lives in the encounter and the police officers were well within their
power, it could be said to be deprivation of life and liberty through
a process established by law, but if the truth ultimately found is
otherwise, it would call for further action in accordance with law.
Under these circumstances, we find that the present case is not such
where no investigation is called for on the aspects of genuineness of
the encounter.

The next aspect is if the investigation is to be made on the aspect of

genuineness of encounter, such investigation by whom?

The contention of the learned Counsel for the petitioners relatives

of the deceased is that keeping in view the fact that high-ranked
police officials are involved, the investigation is required to be
given to CBI, which is a central agency.

The learned Counsel appearing for the petitioners also contended that
the investigation, if made through the present SIT, there would not be
any credibility, because other high-ranked police officers of the
State are involved in the incident. It was also submitted that the
approach of the State Government in the present litigation is to side
with the police officers, who are involved in the incident and the
said aspect is apparent from the litigation initiated by the State
Government against the report of the learned Magistrate under Section
176 of Cr. P.C. and as on today, the contention of the State
Government is to oppose and challenge the report of the learned
Magistrate under Section 176 of Cr. P.C. It was, therefore, submitted
that in view of such circumstances, if the present SIT is continued,
they will not be able to properly conduct the investigation to find
out the truth, therefore, with a view to provide more credibility and
to instill confidence the investigation deserves to be assigned to
CBI.

Whereas, on behalf of the police officer, it was submitted by

Mr.Nanavati, learned Counsel that he has no objection if the
investigation is conducted by CBI or any other agency, including SIT
already constituted by this Court.

Whereas, on behalf of the State, it has been submitted by Mr.Kamal

Trivedi, learned Advocate General that the SIT already constituted can
further investigate into the matter. He also submitted that the
approach of the Central Government by filing earlier affidavit, was
for not to take up the investigation and by subsequent affidavit, has
shown readiness to investigate into the incident lacks bonafide. It
was submitted that there have been more serious and heinous offences
having national and international ramification in the recent past,
which are investigated by the police officers of the respective States
and he elaborated the example as that of Parliament attack case,
Akshardam attack case, serial bomb blasts at Mumbai, etc. It was
submitted that all such offences, though had national and
international ramification, were registered and successfully
investigated by the police departments of the respective States. He
contended that there are no extraordinary circumstances shown by the
petitioners, nor such circumstances, in fact, exit, which justify the
deviation from the well-developed federal structure of crime
investigation. He also contended that there are no allegations leveled
against the SIT constituted by this Court with the consent of all the
parties. It was submitted that when the said team is further
investigating into the alleged offences, it provides credibility and
instill confidence, which would also be the aspects, which this Court
may consider while exercising extraordinary jurisdiction. Therefore,
it was submitted that the prayer for transferring the investigation to
CBI or for incorporation of any officer(s) of CBI or any other Central
Agency in SIT is not acceptable to the State Government. He also
contended that if investigation is assigned to CBI or any officer of
CBI or Central Agency inducted into SIT, it will demoralize the Police
Officers of the State Government or, at least, other members of the
SIT, therefore, it was submitted that this Court may continue with the
investigation through the SIT, which is already constituted and in any
case, may not be assigned to CBI as prayed by the relatives of the
deceased concerned petitioners.

On the aspects of assignment of the investigation to CBI in a case

where one of the alleged accused was sitting Member of Legislative
Assembly (MLA), this Court (Coram: Jayant Patel, J. one of us) had
an occasion to consider the said aspect in the case of Bharatbhai
Umedsang & Anr. v. State of Gujarat, in Special Criminal Application
No.1855 of 2008 and allied matters, decided on 13.4.2010. This Court,
at paragraphs 41 and 42, observed as under :-

41. In the case of State of West Bengal and Ors Vs. Committee for
Protection of Democratic Rights, West Bengal & Ors reported at 2010
STPL (Web) 129 SC, while considering the question about the power of
the constitutional Court under Article 32 or 226 for entrustment of
the investigation to CBI, the Constitutional Bench of the Apex Court
recorded conclusions, the relevant of which for the present group of
matter is at para 45(ii) as under:

(ii) Article 21 of the Constitution in its broad perspective seeks to

protect the persons of their lives and personal liberties except
according to the procedure established by law. The said Article in its
broad application not only takes within its fold enforcement of the
rights of an accused but also the rights of the victim. The State has
a duty to enforce the human rights of a citizen providing for fair and
impartial investigation against any person accused of commission of a
cognizable offence,which may include its own officers. In certain
situations even a witness to the crime may seek for and shall be
granted protection by the State.(Emphasis supplied)

While recording the final analysis at para 46, the Apex Court did
observe that the Apex Court and the High Court have not only the power
and jurisdiction, but also an obligation to protect the fundamental
rights, guaranteed by Part III in general and under Article 21 of the
Constitution in particular, zealously and vigilantly. But at the same
time, the further observations by way of caution, have been made at
para 47, relevant of which reads as under:

Before parting with the case, we deem it necessary to emphasize that

despite wide powers conferred by Articles 32 and 226 of the
Constitution, while passing any order, the Courts must bear in mind
certain self-imposed limitations on the exercise of these
Constitutional powers. The very plenitude of the power under the said
Articles requires great caution in its exercise. In so far as the
question of issuing a direction to the CBI to conduct investigation in
a case is concerned, although no inflexible guidelines can be laid
down to decide whether or not such power should be exercised but time
and again it has been reiterated that such an order is not to be
passed as a matter of routine or merely because a party has levelled
some allegations against the local police. This extra-ordinary power
must be exercised sparingly, cautiously and in exceptional situations
where it becomes necessary to provide credibility and instill
confidence in investigations or where the incident may have national
and international ramifications or where such an order may be
necessary for doing complete justice and enforcing the fundamental
rights. Otherwise the CBI would be flooded with a large number of
cases and with limited resources, may find it difficult to properly
investigate even serious cases and in the process lose its credibility
and purpose with unsatisfactory investigations. (Emphasis supplied)

42. Under these circumstances, it can be said that it is by now well

settled that this Court under Article 226 of the Constitution has
power to protect the rights of the citizen and to enforce the duty
upon the investigating agency to ensure that there is fair and
impartial investigation against any person accused of commission of
cognizable offence which may also include its own officer. While
exercising the power, the facts of each case is to be considered for
ensuring that there is fair and impartial investigation. Further, such
power are to be exercised not in routine but by way of exceptional
circumstance and the reason being that in normal circumstance, as
referred to hereinabove, by extracting the decision of the Apex Court
in the case of Gangadhar Janardhan Mhatre(supra), the matter is to be
left to investigating agency and to the concerned Magistrate for
overseeing the investigation or getting or taking cognizance of the
offence or otherwise. It is only in exceptional circumstance, this
Court may be required to step into the investigation to streamline the
investigation for ensuring the fairness and impartiality in the
investigation so as to instill confidence into the investigation and
to enforce law and it is only in very very extraordinary case, where
there is sufficient material before the Court to record the substance
in the apprehension of the complainant or the victim that even highest
officer of the State, if assigned with the investigation, has failed
in duty or would be failing in duty cast upon the statute in the
matter of investigation of any cognizable offence, this Court may be
required to exercise the power for entrustment of the investigation to
altogether a different investigating agency like CBI in the present
case. Be it noted that such satisfaction either by stepping into the
investigation or for transferring the investigation to some other
investigating agency like CBI, cannot be recorded on a mere ipsi dixit
of a complainant or a victim nor can be recorded only because the
concerned investigating officer has not acted as per the desire of the
victim nor such investigation can be transferred only because the
accused apprehends that there will be further any strict action by the
investigating officer. The degree of malafide or malice on the part of
the investigating officer to carve out a case in the exceptional
category may be for transferring the investigation to some other
officer or otherwise, would require a cogent material on the face of
it which would leave the Court to satisfactory material substance in
the apprehension voiced by either side, may be the complainant or the
victim or the accused. If such an approach is not made by the Courts
in overseeing the investigation, it would leave room for the
complainant to compel the investigating officer to book the accused,
even if the crime is not found to have been committed and would
equally leave room for the accused to get scot-free even if the crime
is committed. Creation of such a situation would take away the
discretion to be exercised by the investigating officer for conducting
the investigation in a fair and impartial manner, therefore, while
exercising the power, all care and caution is required to be taken on
the aforesaid aspects.

Therefore, while upholding the power of this Court to order

investigation by CBI, a word of caution, as observed by the Apex
Court, deserves to be considered, inasmuch as, such power is to be
exercised sparingly, cautiously and in exceptional situations where it
becomes necessary to provide credibility and instill confidence in
investigations or where the incident may have national and
international ramifications or where such an order may be necessary
for doing complete justice and enforcing the fundamental rights.
Further, it is only in very very extraordinary case where there is
sufficient material before the Court to record the substances on the
apprehension of the complainant or the victim that a higher officer of
the State, who were assigned with the investigation, had failed in his
duty or would be failing in his duty cast upon by the statute in the
matter of investigation, this Court may be required to exercise the
power for assignment of the investigation altogether to a different
agency like CBI. On the aspects of degree of malafide or malice on the
part of the investigating officer, to carve out a case in the
exceptional category for transferring the investigation, a cogent
material on the face of it, which would leave the Court to
satisfactory material substance on the apprehension voiced by either
side is also required for exercise of power.

It was contended by the learned Counsel appearing for the petitioner,

who are relatives of the deceased that at the time when the consent
was given by them for investigation by SIT, the situation was
different and at the relevant point of time they had faith in the
investigation, but after the order was passed by this Court on
13.8.2009, the situations are different inasmuch as in the case of
Sohrabuddin encounter, at the relevant point of time, there were no
conclusive observations by the Apex Court about no proper functioning
by the higher police officers of the State, which now exists in view
of the last order passed by the Apex Court for transfer of the
investigation in Sohrabuddin encounter as per the decision reported at
2010(2) SCC, 200. Therefore, it was submitted that in view of the
observations made by the Apex Court in the above referred case, there
will not be any credibility to the investigation made by the SIT,
which only comprises of the State Police Officers. Further, it was
submitted that at the time when SIT was constituted earlier vide order
dated 13.8.2009, the report of the learned Magistrate under Section
176 of Cr. P.C., was not there and in the contention of the learned
Counsel for the petitioners, same set of officers, who are involved in
encounter of Sohrabuddin are involved in the present encounter,
therefore, it was submitted that in order to get justice and to
instill confidence and provide credibility to the investigation, it
should be assigned to CBI and no other agency.

We cannot countenance the submission made by the learned Counsel for

the petitioners that the present case of encounter falls at par with
the case of encounter of Sohrabuddin. The fact situation of the case
in the decision of the Apex Court in the case of Rubabuddin Sheikh v.
State of Gujarat, reported in 2010(2) SCC, 200, was that the
investigation at the initial stage was allowed to be continued by the
Apex Court with the State Police. Not only that, but even as per the
investigation made prior to the above referred decision of the Apex
Court, the encounter was found to be fake and the charge-sheet was
also submitted upon with the action taken report submitted before the
Apex Court from time to time, but thereafter the Apex Court found that
proper investigation was not being made by the State Police,
therefore, it was assigned to CBI. No such fact situation exists in
the present case inasmuch as there is no finding recorded, nor any
material at par with the case for encounter of Sohrabuddin Sheikh.
Merely because some observations are made in respect of functioning of
State Police in the case of a particular investigation of a particular
incident, we cannot countenance the submission of the learned Counsel
for the petitioners that for all investigations, in which police
officers are involved, the same cannot be undertaken by the State
Police and the case would call for transfer of investigation to CBI.

If the matter is considered in light of the earlier decision of this

Court in the case of Bharatbhai Umedsang & Anr. v. State of Gujarat
(supra), for the transfer of investigation to CBI, as observed by this
Court in the above referred case, power can be exercised by this Court
in a very extraordinary case, where there is sufficient material
before the Court to record the substance in the apprehension of the
complainant or the victim that even the higher officer of the State,
if assigned with the investigation, has failed in duty or would be
failing in duty cast upon the statute in the matter of investigation.
Further, the satisfaction, either by stepping into the investigation
or by transferring the investigation to other investigating agency
like CBI cannot be recorded on a mere ipsi dixit of a complainant or a
victim, nor can it be recorded only because the concerned
investigating officer has not acted as per the desire of the victim
nor such investigation can be transferred only because the accused
apprehends that there will be any further strict action by the
investigating officer. The degree of malafide or malice on the part of
the investigating officer to carve out a case in exceptional category,
may be for transferring the investigation to some other officer or
otherwise, would require a cogent material on the face of it, which
would leave the Court to satisfactory material substance in the
apprehension voiced by either side, may be the complainant or the
victim or the accused. The examination of the facts of the present
case, if considered, there is no material whatsoever on record to show
any malice or malafide on the part of the investigating officer for
intentionally not properly conducting the investigation, may be either
Ms.Parixita Gurjar as the Investigating Officer or Mr.Mahapatra as
further making inquiry in the said incident. In absence of any
material on record for any malafide or malice on the part of the
aforesaid officers, who have so far conducted the investigation, it
cannot be said that there is any satisfactory material with the Court
to accept the contention of the learned Counsel for the petitioner
representing the relatives of the deceased that the officer acted with
any malafide or malice. Therefore, if the case is to be tested on the
allegation of malafide or malice on the part of Investigating Officers
or any State police officer, no case can be said to have been made out
for transferring the investigation to CBI. The learned Counsel
appearing for the petitioners did rely upon certain cases where this
Court or the other High Courts had found it proper to entrust the
investigation to CBI, since certain police officers were involved or
high police officers were involved. Such decision can hardly be read
as laying down the principle that in a case where the offences alleged
to have been committed by the police officers, the other police
officer, higher police officer shall not discharge the duty for
investigation in an impartial manner. At the most it can be said that
in the facts and circumstances of those cases, this Court or the other
High Courts found it proper to transfer the investigation to CBI. No
parity can be drawn on the ground as sought to be canvassed by the
learned Counsel appearing for the petitioners.

The contention to instill confidence and to provide credibility to the

investigation and to do complete justice in order to protect the
fundamental rights of the citizens of the country deserves
consideration. In the case of Bharatbhai Umedsang & Anr. v. State of
Gujarat (supra), this Court having found that there was no proper
investigation on the aspects as narrated in paragraph 52 of the said
decision, had observed in paragraph 54 of the said decision that in
order to see that the faith is instilled in the investigating agency
of the State that the investigation was conducted in a fair and
impartial manner, the investigation was assigned to an officer of the
higher rank, who was working in CID (Crime) as well as well-versed
with the commission of economic offences. The fact situation of that
case for instilling the confidence and credibility to the
investigation was different, whereas the fact situation of the present
case on the aspects of investigation or inquiry made so far and yet to
be made, deserves to be considered. As observed earlier, there are
divergent views for the genuineness of the encounter. One view is by
the I.O., Ms.Gurjar and in the inquiry by Additional DGP, the same
view is repeated. Therefore, it could be said to be one of the views
taken by the Investigating Officer/the police officer, who has
instigated and inquired into the matter having found that the
encounter was genuine. Whereas, the view expressed by a Judicial
Metropolitan/Magistrate in an inquiry under Section 176 of Cr. P.C.,
is different inasmuch as, as per the view taken by the learned
Magistrate, the encounter is not genuine and could be termed as fake.
Further, as observed earlier in the investigation made by the Police
Officer, so far certain steps, which could have been taken for
investigation namely that of (1) recovery of the Government weapon
used by the police officer in the encounter and sending them for
Forensic Science Laboratory; (2) the collection of data for use of the
telephone/mobiles by the concerned police officer during the said
period were not considered, nor material was collected. Similarly, the
learned Magistrate while taking view on the aspect of genuineness of
the encounter has not considered the statement of certain witnesses
under Section 164 of Cr.P.C., to the effect that the deceased were at
Surat in the evening of 14.6.2004. Therefore, leaving aside the
aspects as to whether the deceased were associated with the terrorist
activities in collusion with the Pakistani nationals or leaving aside
the aspects that the police officers, in order to earn credit and
thereby to have premium and appreciation from the Hon'ble Chief
Minister as observed by the learned Magistrate, though there was no
material on record, the fact remains that on the aspects of
genuineness of the encounter, there are two views expressing different
conclusions for the same set of evidences and circumstances; one by
the police officers and another by the Judicial Magistrate in an
inquiry under Section 176 of Cr. P.C.. The aforesaid leads us to find
that the incident does require an investigation to trace the truth as
to whether the encounter was genuine or fake or non-genuine. The
aforesaid is coupled with strong circumstance that earlier when this
Court (learned Single Judge) considered the matter on 13.8.2009 there
was consensus amongst the petitioner of Special Criminal Application
No.822 of 2004 as well as the respondents, including the State that
the investigating team may be constituted for the purpose of carrying
out the investigation in FIR being C.R. No.8/2004 registered with DCB
Police Station, Ahmedabad City. Therefore, the factum of requiring
investigation, may be through a team constituted by this Court, was
agreed upon, as the incident called for such investigation. Under
these circumstances, we find that the incident of alleged encounter
does call for an investigation, which would include the aspects as to
whether the encounter was genuine or not or a fake encounter.

The aforesaid leads us to further find out as to how the investigation

can be carried out in a manner, which instills the confidence and
credibility to such investigation to do complete justice in order to
protect the fundamental rights of the citizens of the country.

It can hardly be disputed that this Court is well within its power to
constitute a team of officers, which this Court may find it proper to
instill confidence and credibility to the investigation. Be it noted
that the police officers of the State, while discharging their normal
or regular duty cannot and will not have the same status, when they
are assigned with the work by this Court for investigation so
entrusted by the Court. Their status for the purpose of discharging
the work of investigation would be for the Court, since the Court is
desirous to know the truth while protecting the rights of the citizens
as against any action by the officers of the State. It is true that
such officers, when are assigned with the work of further
investigation or investigation in respect of any incident, would not
cease to be the officers for the purpose of exercise of their power
under Code of Criminal Procedure or other relevant laws, but they
would be functioning by way of a special assignment as entrusted by
the Court and they would also be answerable to the Court. Such
officers, though may not be strictly put at par with the Court
Commissioner, but can be termed as a member of the team constituted by
the Court for a particular purpose in furtherance to the exercise of
power by this Court. Therefore, the contention of the learned Advocate
General that if the members of the present SIT are not continued in
the SIT as already constituted by the Court, such would have a
demoralizing effect can hardly be countenanced, nor the insistence on
the part of the State can be countenanced for continuation of the same
SIT for further investigation. It is true that the Court, for valid
reason, may continue the same SIT or may expand the team or may
reconstitute a separate SIT, but such insistence on the part of the
State, cannot be countenanced. On the contrary, as understood by the
members of the present SIT in right spirit, during the course of the
hearing, it was declared by the members of SIT that they would abide
by the orders, as may be passed by this Court. Therefore, we find that
it would be in the domain of the Court, while exercising the judicial
power to constitute a team for investigation and neither the members
of the team, nor the State Government or the Central Government can
insist on the formation of a team of particular officers only. At the
same time, when the question is to be considered by the Court for
formation of a team for investigation, which may include the officers
of CBI, it is not open to even CBI to contend that unless the
investigation is fully assigned to CBI, it would not be possible for
the officers of the CBI to investigate the question in appropriate
manner, as sought to be canvassed by the learned Counsel Mr.Ravani for
CBI.

We find from the report submitted by the present SIT that the
investigation made so far is at a too preliminary stage and as per the
report submitted, the present SIT has taken over only on 26.8.2009 and
within a period of two months except receiving the record and
proceedings and recording of the statements of the certain persons, no
further investigation has taken place. As per the report submitted by
the team, (1) the details of the phone of the police officers and
other employees who are involved for the period from 1.6.2004 to
30.6.2004 is yet to be received, (2) the movement of Indica car from
Pune-Nasik-Saputara-Nadiad is yet to be collected, (3) the statements
of the witnesses from Kerala are to be recorded, (4) the Government
weapons of the police officers, which were used for firing are
collected, but the report of the Forensic Scientific Laboratory is yet
to be received, (5) the details of the concerned police station and
the police officers, who were on duty on 14th - 15th June 2004 are yet
to be collected. No witness for the incident for giving direct or
indirect information has come forward in response to the public
notice, (6) the inquiry at U.P., Lucknow, Faziabad, where the deceased
Ishrat and Jahan had stayed is yet to be made, (7) the certain
information of the earlier investigation made at Jammu and Kashmir and
Delhi is yet to be verified and further the investigation is to be
made, (8) the investigation is also to be made at Mumbai of Al Rehman
Travels and its owner, (9) the evidences for the use of the Indica Car
on route of Ahmedabad-Poona and Kerala-Ahmednagar are yet to be
collected, (10) the clarification on the basis of the postmortem note
is also yet to be collected, and (11) the other expert opinion, the
visits of the places within Gujarat and outside Gujarat in various
States are yet to be made.

It was contended by the learned Counsel appearing for the petitioners,

who are relatives of the deceased that the incident in question is
having national and international ramification inasmuch as, as stated
in the FIR registered by the police officer, it was for hatching
conspiracy for killing the Hon'ble Chief Minister. Further, it relates
to the terrorist activities by the deceased and other two Pakistani
nationals, hence the net of inquiry can be beyond the limits of the
Country. Therefore, it was submitted that if the investigation is
assigned to CBI, it would be in a position to conveniently investigate
into all such aspects and the same would meet with the ends of
justice.

The national and international ramification, as per the language used

by the Apex Court, is not to be considered in light of the meaning as
sought to be canvassed by the learned Counsel appearing for the
petitioner. The incident may have ramification at the national level,
if it relates to the sovereignty of the Nation and may have
international ramification, if it relates to the international policy
of our country and directly or indirectly the aspects incidental
thereto. Therefore, the test would not be on the basis of the
consequences, which may arise at the incident or the conspiracy
realized. Further, in the said decision, the aspects of constitutional
Court finding it proper in exercise of the power under Article 32 or
226 of the Constitution of India to get the investigation done by a
Special Team was not there before the Apex Court. Under these
circumstances, the contention that the inquiry should only be
entrusted to CBI and none else cannot be accepted. Further, the said
aspect is with the past conduct of one of the petitioners of Special
Criminal Application No.822 of 2004 that at one point of time she had
agreed for investigation through a team, which may be constituted by
this Court under Article 226 of the Constitution of India.

Therefore, it appears to us that the investigation made by the present

SIT is at a too preliminary stage and the majority of investigation as
stated earlier is yet to be made. Further, the aspect, which deserve
to be considered, is that the movements of the deceased is not only
within Gujarat, but is as such from outside Gujarat in Maharashtra
State, in the State of Kerala, in the State of U.P., and also the
association with the places in Jammu and Kashmir and Delhi. Therefore,
we find that if a broad based SIT is constituted, which would be in a
position to investigate into the incident by collecting data from
various States, which are concerned and through the Police of various
States, it would be not only more convenient, but would be more
practicable and would help to trace the truth for the alleged
incident. At this stage, it may be recorded that additional Director
General of Police, in his report dated 14.10.2004, has also stated
that the sources of information should also be collected from the
Central Intelligence, so as to ensure that such incidents are not
repeated and proper steps can be taken for curbing the terrorist
activities in the State. Under these circumstances, we find that it
would be just and proper to include the officers from outside the
State as well as one, who was or is holding very high position in the
Central Bureau of Investigation. We had called for the names of
various officers of the State Cadre as well as of the CBI. We had also
called for the names of the officers, included in the Special
Investigation Team constituted by the Apex Court for the purpose of
Godhra Riot Cases. We find that in the matter of constitution of
Special Investigation Team, in a case where the investigation was also
required to be held, not only against certain accused, but in cases
where the police officers were involved of the State, in various riot
cases, the Apex Court, as per its order read with the decision
reported in the case of National Human Rights Commissions v. State of
Gujarat and Ors., reported (2008) 16 SCC, 497 and (2009) 6 SCC, 342
had constituted a Special Investigation Team (SIT) and the said team
is functioning in the State, not only for conducting
inquiry/investigation in respect of the cases marked by the Apex
Court, but is also discharging further work as assigned by the Apex
Court as per its order passed in the same matter reported (2009) 6 SCC
767. It further appears that the said SIT is having all basic
infrastructure for investigation of the criminal cases/the offences
and other necessary investigation, including of prosecuting the matter
in the concerned Court. In the matter of constitution of SIT,
therefore, we think it proper to transfer the investigation to the
same SIT, which is functioning under the above referred directions of
the Apex Court. As reported to us, the said SIT now functioning
consists of the following officers :-

(1) Shri R.K. Raghavan, Former Director, CBI

(2) Shri Y.C. Modi, IGP (Meghalay Cadre)

(3) Shri Dr. K. Venkatesham (Maharashtra Cadre)

(4) Shri Ashish Bhatiya, IGP (Gujarat Cadre)

(5) Shri A.K. Malhotra, Retired IGP (CBI)

Hence, we find that the very SIT should be constituted and assigned
the work for further investigation in connection with C.R. No.8/2004
registered with DCB Police Station, Ahmedabad City. We may observe
that when the Apex Court in such highly sensitive matters in the riot
cases in the State of Gujarat, which include the Police Officers of
the State, has found it proper to assign the work of investigation to
the aforesaid SIT, the same team can be entrusted the work of the
investigation of the present case and such would instill confidence
and credibility to the investigation to do complete justice to the
parties and thereby protecting the fundamental rights of the citizens.

We may also record that if the composition or the constitution of SIT

is altered or modified by the Apex Court, the same shall mutatis
mutandis be applicable to the present case also, without there being
any specific orders of this Court.

It is further observed and clarified that the SIT so constituted by

the present judgement shall not take any assistance, directly or
indirectly, of the officers of any rank of the State Police, if they
are involved directly or indirectly in connection with the present
incident of encounter, which is to be investigated by them.

We may observe that to consider the controversy as to whether the

incident requires further investigation or not we have made
observations and as the contentions were raised by the respective
parties have been dealt for that purpose. Therefore, it is clarified
that any of the observations in connection with the incident whether
genuineness of the encounter or otherwise, shall not prejudice the
rights of the victims and/or of the accused in the event the
consequences arise for trial before the competent Court and the rights
and contentions of all the affected thereby shall remain open.

In view of the aforesaid observations and discussions, the following

conclusion can be deduced :-

(1) The amendment to Section 176 of Cr.P.C., which came into effect
from 23.6.2010, is having retro-active character, hence, can be
applied retrospectively to pending inquiry before the Sub-divisional
Magistrate. It is clarified that such would not mean to disturb
inquiry already concluded by the Sub-divisional Magistrate/Executive
Magistrate.

(2) The report of the Judicial/Metropolitan Magistrate under Section

176 of Cr. P. C., is having a recommendatory value by way of opinion
of fact finding inquiry for the cause of the death.

(3) The persons, who are found or involved in the report under
Section 176 of Cr.P.C., being liable for the cause of death are not
affected by the report, since they will have right of defence, if
complaint is filed for any offence(s), hence, not entitled to
challenge the report.

(4) The report under Section 176 of Cr. P.C., of the Judicial
Magistrate, normally is to be responded and acted upon by the State.
However, but for extraordinary very strong and valid reasons, the
State may differ From the report, but such action of the State shall
be subject to judicial review of the High Court under Article 226 of
the Constitution of India and at that stage, the contents of the
report can be examined by this Court for putting law into motion or
for further direction.

(5) There is no material on record before us of malice or malafide on

the part of the State police officials, which may lead us to transfer
the investigation to CBI only.

(6) The investigation so far cannot be said as fully satisfactory by

the I.O., and/or Additional DGP as observed in the judgement.

(7) There is a report of the Metropolitan Magistrate under Section

176 of Cr. P.C., which expresses the view/finding, if considered would
make the encounter non-genuine or fake one. The views of the learned
Magistrate on the other aspects are without material on record as
observed in the judgement.

(8) In view of two contradictory findings of I.O., and Additional DGP

vis-a-vis the findings of the Metropolitan Magistrate in the report
under Section 176 of Cr.P.C., on the aspects of genuineness of the
encounter, the incident deserves further investigation.
(9) In order to instill confidence and to provide credibility to the
investigation and to do complete justice, the investigation deserves
to be made by Special Investigation Team, as constituted by this
Court, as observed in the judgement herein above under Article 226 of
the Constitution of India. The concerned Government or the
establishment is bound to comply with the directions of this Court and
to provide all necessary infrastructure.

(10) The members of SIT or SIT work under the orders of this Court.
Hence, alteration in the composition or constitution of new SIT, if
this Court finds it proper, cannot have demoralizing effect, but can
be termed as a transfer of work/assignment simplicitor.

(11) As one SIT is already functioning for sensitive riot cases as

per the orders passed by the Apex Court, same SIT, subject to the
change, if any, made by the Apex Court, deserves to be entrusted the
work of investigation in order to instill confidence and credibility
to the investigation.

In the result, the following orders :-

(a) Special Criminal Application No.2012 of 2009 is dismissed.

(b) Special Criminal Application No.822 of 2004 and Special Criminal

Application No.1850 of 2009 shall stand allowed to the extent of
constitution and assignment and transfer of the investigation to the
SIT as observed herein above in the present judgement for
investigation in connection with C.R. No.8 of 2004 dated 15.6.2009
registered with DCB Police Station, Ahmedabad City. It is further
observed that SIT shall be at liberty to take all the steps in
accordance with law for investigation transferred to it and it shall
also have the power to take action in furtherance thereto in
accordance with law.

The State Government is directed to issue necessary orders in this

regard within two weeks from the date of receipt of the order and the
said SIT shall submit the report within three months thereafter to
this Court. The other prayers made by the petitioner, including to
transfer the investigation to CBI are not granted.

(c) Criminal Misc. Application No.10625 of 2009 shall not survive in

light of the present order passed in the main Special Criminal
Application No.822 of 2004 and is disposed of accordingly.

(d) In view of the order passed in the main Special Criminal

Application No.822 of 2004 as well as in Criminal Misc. Application
No.10625 of 2009, Criminal Misc. Application No.7570 of 2010 in
Criminal Misc. Application No.10625 of 2009 in Special Criminal
Application No.822 of 2004 shall stand disposed of accordingly.

(e) Criminal Misc. Application No.7503 of 2010, in view of the order

passed in Special Criminal Application No.2012 of 2009 shall stand
disposed of accordingly.

(f) Criminal Misc. Application No.7756 of 2010 in Special Criminal

Application No.2012 of 2009, in view of the order passed in Special
Criminal Application No.2012 of 2009, shall stand disposed of
accordingly.

(g) Criminal Misc. Application No.13526 of 2009 shall not survive as

the present SIT shall get substituted by the SIT as per the order
passed herein above. Hence, the said application shall stand disposed
of accordingly.

(h) The SIT constituted earlier pursuant to the interim order dated
13.8.2009 shall stand dissolved and the SIT shall forthwith entrust
the records, which are in its possession, to the new SIT constituted
for such purpose.

Rule made absolute to the aforesaid extent and rule discharged in the
respective matters. Record and proceedings called from the Court of
Metropolitan Magistrate in connection with Inquiry Case No.1 of 2009
be kept in a sealed cover and be kept in safe custody with the
Registrar General of this Court.

(Jayant Patel, J.)

12.8.2010 (Smt. Abhilasha Kumari, J.)