TaxTMI 
TaxTMI 
2013 (4) TMI 903
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....een filed by the State of Gujarat after a gap of 3½ years and also considering the nature and gravity of the crime, rejected the investigation conducted/concluded by the State Police and directed the State police authorities to handover the case to the CBI. After investigation, the CBI filed a fresh FIR dated 29.04.2011 against various police officials of the States of Gujarat and Rajasthan and others for acting in furtherance of a criminal conspiracy to screen themselves from legal consequences of their crime by causing the disappearance of human witness, i.e., Tulsiram Prajapati, by murdering him on 28.12.2006 and showing it off as a fake encounter. Though the said FIR did not specifically name any person, in the charge sheet dated 04.09.2012 filed in the said FIR before the Court of Judicial Magistrate First Class, Danta District, Banaskantha, Gujarat, the petitioner herein was arrayed as A-1. Further, due to lack of jurisdiction, the charge sheet was presented before the 2nd Additional Chief Judicial Magistrate, (First Class), (CBI Court No. 1), Ahmedabad, Gujarat. 3) Being aggrieved by the fresh FIR dated 29.04.2011 and charge sheet dated 04.09.2012, the petitioner h....
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....e to be framed jointly and one trial will have to be held as contemplated under Section 220 of the Code of Criminal Procedure, 1973 (in short 'the Code'). It is further pointed out that as per the CBI, the alleged criminal conspiracy commenced when Sohrabuddin and Kausarbi (whose deaths were in question in the first FIR) and Tulsiram Prajapati (whose death was in question in the second FIR) were abducted from Hyderabad after which Sohrabuddin was allegedly killed on 25/26.11.2005 and Kausarbi and Tulsiram Prajapati were killed thereafter since they were, as per CBI, the eye-witnesses. Finally, it is highlighted that the competent jurisdictional court has already taken cognizance of all the three alleged killings in the chargesheet/challan filed by the CBI in the first FIR itself. 9) Before going into the factual matrix as projected by learned senior counsel for the petitioner, it is desirable to refer to the stand taken by the CBI. 10) It is the definite case of the CBI that the abduction of Sohrabuddin and Kausarbi and their subsequent murders as well as the murder of Tulsiram Prajapati are distinct offences arising out of separate conspiracies though inter-connected with ea....
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....ct offences. According to him, the material available with the CBI would show distinct and separate conspiracy to eliminate Sohrabuddin and, thereafter, another conspiracy was hatched in order to eliminate Tulsiram Prajapati as soon as the accused persons apprehended that Tulsiram Prajapati would spill the beans with respect to elimination of Sohrabuddin in a fake encounter. 12) It is the definite case of the CBI that the investigation has revealed that subsequent to the murder of Hamid Lala, Sohrabuddin and Tulsiram Prajapati continued their criminal activities in the States of Maharashtra, Rajasthan and Gujarat. However, Sohrabuddin remained elusive and beyond the reach of the Gujarat Police. It was, therefore, that the accused Amit Shah (petitioner herein), D.G. Vanzara, S. Pandiyan Rajkumar, Dinesh Man and others entered into a conspiracy to abduct and murder Sohrabuddin. Accordingly, D.G. Vanzara, with the aid of Abhay Chudasma, S.P. Valsad had Tulsiram Prajapati, an associate of Sohrabuddin, in order to trace Sohrabuddin. Whilst giving such directions, D.G. Vanzara also assured Tulsiram Prajapati that he would ensure safe passage for him as he would be implicated in some p....
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.... allegedly primary witnesses in the case) of whom Tulsi was recently encountered at BK by border range." 15) It is also pointed out by the CBI that at the time of the murder of Sohrabuddin, there was no conspiracy to murder Tulsiram Prajapati and it is only subsequent to his murder when the accused persons feared of Tulsiram Prajapati being a threat to them and would spill the beans as he was a material witness in the first conspiracy inasmuch as tracing and locating of Sohrabuddin on the assurances of the accused, another conspiracy was hatched to murder a potential witness to the murder of Sohrabuddin. By highlighting these factual details, it is pointed out by the CBI that there were two distinct and separate conspiracies. 16) With these factual aspects, as projected by the CBI, let us analyze further details highlighted by learned senior counsel for the petitioner as well as the specific stand of the CBI in the earlier proceedings asserted before this Court in the form of affidavit/counter affidavit and status reports. Entrustment of investigation to the CBI in respect of Ist FIR: 17) Initially, Gujarat police conducted investigation into the killing of two individu....
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....Ultimately, this Court directed the CBI "to unearth the larger conspiracy". The following categorical observations and directions in paras 65, 66 and 82 are relevant which are noted hereunder:- "65. It also appears from the charge-sheet that it identifies the third person who was taken to Disha farm as Kalimuddin. But it does not contain the details of what happened to him once he was abducted. The possibility of the third person being Tulsiram Prajapati cannot be ruled out, although the police authorities or the State had made all possible efforts to show that it was not Tulsiram. In our view, the facts surrounding his death evokes strong suspicion that a deliberate attempt was made to destroy a human witness. 66. So far as the call records are concerned, it would be evident from the same that they had not been analysed properly, particularly the call data relating to three senior police officers either in relation to Sohrabuddin's case or in Prajapati's case. It also appears from the charge-sheet as well as from the eight action taken reports that the motive, which is very important in the investigation reports was not properly investigated into as to th....
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....this chargesheet itself, the CBI categorically mentioned that the killing of Tulsiram Prajapati is also a part of the very same conspiracy which is mentioned in the first FIR above. Though, before us, a different stand was taken by the CBI, the following excerpts of the charge sheet clearly show that CBI was very categorical that killing of Tulsiram Prajapati is also a part of the very same conspiracy, which are as under:- "11......Shri Naymuddin, brother of Shri Sohrabuddin had gone to see off Shri Sohrabuddin, sister-in-law Smt. Kausarbi and Tulsiram Prajapati at Indore Bus Stand. 19. Investigation further revealed that the Police Party also followed the luxury bus. About 15 to 20 kilometers from the hotel, on the instructions of Shri Rajkumar Pandiyan (A-2) their vehicles overtook the luxury bus and stopped the bus. Two police persons entered into the bus and asked the driver to switch on the light. While the third police person was having torch in his hand remained near the door of the bus. The police persons told there is police checking. All the three police personnel were in civil dress. They picked up Tulsiram Prajapati who was sitting in the bus. After so....
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....series of acts so connected together that they form part of the same conspiracy as alleged in the first FIR. In view of the same, there cannot be a second FIR dated 29.04.2011 and fresh chargesheet dated 04.09.2012 for killing of Tulsiram Prajapati. 23) It is also relevant to point out that when Writ Petition (Crl.) No. 115 of 2007 was pending, the CBI, by way of an affidavit dated 19.08.2010, furnished the following information:- (i) Tulsiram Prajapati's killing is a part of the same series of acts in which killing of Sohrabuddin and Kausarbi took place. (ii) All the three killings are part of the same conspiracy. (iii) Trial of all the three offences shall have to be one trial under Section 220 of the Code. (iv) CBI be given formal permission to investigate Tulsiram Prajapati killing as "further investigation" in the first FIR filed by CBI which investigation was going on. (v) If CBI is not formally given investigation of Tulsiram Prajapati, prosecution would face questions of "issue estoppel" & "Res- judicata". In the said affidavit, the CBI even prayed for "further investigation" in the first FIR which becomes evident from the ....
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....jarat Police and was handed over to the CBI. Today, we can proceed only on the basis of the previous order passed on January 12, 2010 by which the CBI was directed to investigate all aspects of the case, relating to the killing of Sohrabuddin and his wife Kausarbi including the alleged possibility of a larger conspiracy. By that order, the CBI was asked to complete the investigation within six months from the date it took over the case from the State police and to file its report to this Court when this Court would pass further necessary orders in accordance with the said report, if necessary. As on date, the investigation ordered to be made remains incomplete. In continuation of the previous order, therefore, the time allowed to the CBI to complete the investigation is extended by three months from today, at the end of which they would file a status report before this Court. Put up on receipt of the status report." 25) It is clear that in both the status report(s) as well as in the affidavit filed in W.P. (Crl.) No. 115/2007, the CBI prayed for entrusting the investigation relating to Tulsiram Prajapati on the ground that his encounter was a part of t....
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.... imminent at the hands of the Gujarat Police in connivance with the Rajasthan Police as he was the only surviving prime witness to the abduction and killing of Kausarbi and Sohrabuddin. The grave apprehensions of Tulsiram Prajapati were expressed by him in his applications filed in the court of ACJM City (North) No. 1, Udaipur, on 27.01.2006 and 02.02.2006 and his letters addressed to the National Human Rights Commission (NHRC) dated 18.05.2006 and to the Collector, Udaipur dated 11.05.2006. In addition, he made verbal/oral prayer before the Hon'ble Principal Judge, Ahmedabad on 28.11.2006. Out of sheer desperation, he made the fervent appeal before the Hon'ble Judge that he would be alleged to have shown as escaped from the police escort party custody and subsequently killed in a fake encounter. True to his apprehension, the premonition came true as the events such as his alleged escape from the escape custody on 26.12.2006 registered with Ahmedabad Railway PS vide CR No. 294/2006 on 27.12.2006 and alleged fake encounter on 28.12.2006 registered with Ambaji Police Station vide CR No. 115/2006 dated 28.12.2006. 54. Shri V.K. Goda, who had demitted the office of IG of Polic....
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....ed in a scooter theft case. Interestingly, the above scooter theft case registered in Ambamata PS of Udaipur (Rajasthan) vide Case No. 95/2004 was already detected, vehicle recovered and handed over to the complainant in 2004 itself. Thus, foisting a case against Mohd. Azam and sending Tulsiram Prajapati alone were to facilitate the murder of Tulsiram Prajapati. It has also come into evidence that this time before leaving Udaipur Jail on 25.12.2006, Tulsiram had expressed apprehension of his being killed in an encounter. Contrary to the earlier two occasions, this time only four police personnel were sent from the jail as his escort. On the way back from Ahmednagar to Udaipur, he was shown having run away from the custody on the night intervening 26/27.12.2006. Next day, he was killed in an alleged encounter. 56. The investigation disclosed that the Udaipur Police had sent letter No. 1120 dated 27.12.2006 to SP Banaskantha, alleging that the call details of Tulsiram show that he is hiding somewhere in Banaskantha. As per the documents received by the CBI from the office of IG, Udaipur, this letter was sent through fax at around 2332 hours on 27.12.2006. As per the telephon....
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.... tried along with Sohrabuddin fake encounter case as the evidence procured so far shows that Tulsiram Prajapati's encounter took place as he was the prime witness to the Sohrabuddin's abduction. As such both these cold blooded murders are inter-connected, they ought not to be tried separately as it may give rise to conflicting findings, raise issues of issue estoppels and/or res judicata and end up derailing or frustrating the interest of justice." 26) As rightly pointed out, this was the stand of the CBI prior to passing of the order in the decision dated 08.04.2011 in W.P. (Crl.) No. 115 of 2007. As a matter of fact, based on the above assertion of the CBI, this Court, in the above matter, entrusted the investigation of Tulsiram Prajapati's killing also to the CBI. It is also not in dispute that the above extracted status reports were part of record of proceedings in W.P. (Crl.) No. 115 of 2007. 27) Mr. Mahesh Jethamalani, learned senior counsel for the petitioner- Amit Shah also brought to our notice that he was arrested in the first FIR and chargesheet dated 23.07.2010 and was further interrogated even on the question of alleged killing of Tulsiram Prajapati. It is also b....
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....ccused. As directed by this Court, only on the investigation of Tulsiram Prajapati's case, the "larger conspiracy" would be established and the mandate and tasks assigned by this Court to the CBI would be accomplished both in letter and spirit towards the goal of a fair trial, upholding the rule of law. If Tulsiram Prajapati's fake encounter case is not transferred to the CBI for investigation, it may lead to issue-estoppel or res judicata against prosecution. 13. As pointed out by the learned counsel for the petitioner and the CBI, the said judgment records that there is strong suspicion that the 'third person' picked up with Sohrabuddin was Tulsiram Prajapati. 14) Pursuant to the said direction, the CBI investigated the cause of death of Sohrabuddin and his wife Kausarbi. The CBI, in their counter affidavit, has specifically stated that as per their investigation Tulsiram Prajapati was a key witness in the murder of Sohrabuddin and he was the 'third person' who accompanied Sohrabuddin from Hyderabad and killing of Tulsiram Prajapati was a part of the same conspiracy. It was further stated that all the records qua Tulsiram Prajapati's case were crucial to unearth the "larger....
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....o the materials placed with the stand taken by the CBI, it would be difficult to accept it in its entirety. It is the definite case of the CBI that the abduction of Sohrabuddin and Kausarbi and their subsequent murders as well as the murder of Tulsiram Prajapati are one series of acts, so connected together as to form the same transaction under Section 220 of the Cr.P.C. As rightly pointed out by the CBI, if two parts of the same transaction are investigated and prosecuted by different agencies, it may cause failure of justice not only in one case but in other trial as well. It is further seen that there is substantial material already on record which makes it probable that the prime motive of elimination of Tulsiram Prajapati was that he was a witness to abduction of Sohrabuddin and Kausarbi. 37).....In view of various circumstances highlighted and in the light of the involvement of police officials of the State of Gujarat and police officers of two other States, i.e. Andhra Pradesh and Rajasthan, it would not be desirable to allow the Gujarat State Police to continue with the investigation, accordingly, to meet the ends of justice and in the public interest, we feel that....
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....crime, the accused acted in concert with each other to keep Tulsiram Prajapati, a significant material eye witness to the abduction of Sohrabuddin and Kausarbi by the accused policemen of Gujarat police under their continuing control and beyond the reach of others. Accordingly, Dinesh M.N. (A-4), the then SP Udaipur, who had also participated in the murder of Sohrabuddin on 26.11.2005, ensured by directing Rajasthan Police to detain Tulsiram Prajapati on the very same day i.e., 26.11.2005 for achieving the common object of keeping Tulsiram Prajapati under their control. 6.13 On 08.02.2006, Tulsiram Prajapati was brought from Central Jail, Udaipur to Ujjain, Madhya Pradesh. When he met Narmada Bai and Pawan Kumar Prajapati, he told them that he was under severe stress because he apprehended that the Gujarat and Rajasthan Police would kill him in a false encounter. He also confessed to them that Gujarat Police had used him for tracing and abducting Sohrabuddin and his wife. He had also expressed his apprehension that the police would kill him because he was a witness to the abduction of Sohrabuddin and his wife Kausarbi. 6.26.....With the object of shielding themsel....
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....spiracy which commenced in November, 2005 by abduction of Sohrabuddin, Kausarbi and Tulsiram Prajapati and which culminated into the final stage of alleged killing of Tulsiram Prajapati who was kept under the control of accused police officers since he was a material eye-witness like Kausarbi. To put it straight, apart from the consistent stand of the CBI, the chargesheet dated 04.09.2012 itself is conclusive to show that the said chargesheet, in law and on facts, deserves to be treated as 'supplementary chargesheet in the first FIR'. Legal aspects as to permissibility/impermissibility of second FIR : 31) Now, let us consider the legal aspects raised by the petitioner-Amit Shah as well as the CBI. The factual details which we have discussed in the earlier paragraphs show that right from the inception of entrustment of investigation to the CBI by order dated 12.01.2010 till filing of the charge sheet dated 04.09.2012, this Court has also treated the alleged fake encounter of Tulsiram Prajapati to be an outcome of one single conspiracy alleged to have been hatched in November, 2005 which ultimately culminated in 2006. In such circumstances, the filing of the second FIR and a fresh....
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.... of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC. 27. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that sub-section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) C....
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....In the case on hand, in view of the principles laid down in the above referred decisions, in particular, C. Muniappan (supra) as well as in Chirra Shivraj (supra), apply with full force since according to the CBI itself it is the case where:- (i) The larger conspiracy allegedly commenced in November, 2005 and culminated into the murder of Tulsiram Prajapati in December, 2006 in a fake encounter; (ii) The alleged fake encounter of Tulsiram Prajapati was a consequence of earlier false encounter of Sohrabuddin and Kausarbi since Tulsiram Prajapati was an eye witness to the abduction and consequent murders of Sohrabuddin and Kausarbi; and (iii) Tulsiram Prajapati was allegedly kept under the control of accused police officers, as a part of the same conspiracy, till the time he was allegedly killed in a fake encounter. In view of the factual situation as projected by the CBI itself, the ratio laid down by this Court in C. Muniappan (supra), viz., merely because two separate complaints had been lodged did not mean that they could not be clubbed together and one chargesheet could not be filed [See T.T. Anthony (supra)]. 34) In view of the consistent sta....
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....In the present case, the instances of cheating were in pursuance of the conspiracy and were therefore parts of the same transaction." 38) In Kandimalla Subbaiah (supra), this Court held where the alleged offence have been committed in the course of the same transaction, the limitation placed by Section 234(1) cannot operate. 39) In Cheemalapati Ganeswara Rao (supra), while considering the scope of Section 239 of the old Code (Section 220 in the new Code), this Court held: "28. The decision of the Allahabad High Court in T.B. Mukherji case directly in point and is clearly to the effect that the different clauses of Section 239 are mutually exclusive in the sense that it is not possible to combine the provisions of two or more clauses in any one case and to try jointly several persons partly by applying the provisions of one clause and partly by applying those of another or other clauses. A large number of decisions of the different High Courts and one of the Privy Council have been considered in this case. No doubt, as has been rightly pointed out in this case, separate trial is the normal rule and joint trial is an exception. But while this principle is easy to appre....
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.... and the test of sameness is to applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents having two or more parts of the same transaction. This Court further held that if the answer is in affirmative, the second FIR is liable to be quashed. It was further held that in case the contrary is proved, where the version in the second FIR is different and is in respect of the two different incidents/crimes, the second FIR is permissible. This Court further explained that in case in respect of the same incident the accused in the first FIR comes forward with a different version or counterclaim, investigation on both the FIRs has to be conducted. It is clear from the decision that if two FIRs pertain to two different incidents/crimes, second FIR is permissible. In the light of the factual position in the case on hand, the ratio in that decision is not helpful to the case of the CBI. 43) The CBI has also placed reliance on a recent decision of this Court in Surender Kaushik (supra). A careful perusal of the facts which arose in the said case would disclose that three FIRs which formed the subject matter of th....
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....fore this Court and an affidavit in Writ Petition (Crl.) No. 115 of 2007 bringing to the notice of this Court that killing of Tulsiram Prajapati was also a part of the same transaction and very same conspiracy in which killings of Sohrabuddin and Kausarbi took place and unless the CBI is entrusted with the investigation of Tulsiram case, it will not be able to unearth the larger conspiracy covered in the first FIR. The fact that even as per the CBI, the scope of conspiracy included alleged killing of Sohrabuddin and Kausarbi and alleged offence of killing of Tulsiram Prajapati and the same is unequivocally established by the order passed by this Court on 12.08.2010 in Writ Petition (Crl.) No. 6 of 2007 which is fortified by the status report dated 11.11.2011 filed by the CBI has already been extracted in paragraphs supra. 47) In the light of the factual details, since the entire larger conspiracy is covered in the first FIR dated 01.02.2010 and in the investigation of the said FIR, the CBI, after investigating Tulsiram Prajapati's encounter recorded a finding in supplementary charge sheet dated 22.10.2010 filed in the killings of Sohrabuddin and Kausarbi case that the said encou....
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....ot to be decided in a writ petition under Article 32. He also pointed out that apart from the fact that there are sufficient remedies to raise such a plea under the Code before a court of competent jurisdiction, such disputed questions of fact can only be adjudicated after carefully examining and appreciating the evidence led in. It is also pointed out that there is no question of any prejudice suffered on account of prayer of the petitioner since if the offences are distinct and separate which is so emerging from the present case, there can neither be joint trial nor could the charge sheet filed in the present case be treated as supplementary charge sheet. As a concluding argument, Mr. Rawal, learned ASG submitted that this Court in exercise of its jurisdiction under Article 32 may not like to adjudicate such disputed questions of fact which require evidence to be led and its appreciation. 51) As against this, Mr. Mahesh Jethmalani, learned senior counsel for the petitioner submitted that the CBI is not faced with any prejudice which is to be caused to it, if the relief as prayed for by the petitioner is granted. Admittedly, the petitioner is not praying for quashing of the cha....
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....ident from sub-section (8) of Section 173 of the Code. Under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of the Code, only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 of the Code. Thus, there can be no second FIR and, consequently, there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. d) Further, on receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering FIR in the Station House Diary, the officer-in-charge of the police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the Code. Sub-section (8) of Section 173 of the Code empowers the police to make further investigation, obtain further evidence (both oral and documenta....
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....refore, only as a result of further investigation, the CBI has gathered the information that the third person was Tulsiram Prajapati. Thus a second FIR in the given facts and circumstances is unwarranted; instead filing of a supplementary charge sheet in this regard will suffice the issue. i) Administering criminal justice is a two-end process, where guarding the ensured rights of the accused under Constitution is as imperative as ensuring justice to the victim. It is definitely a daunting task but equally a compelling responsibility vested on the court of law to protect and shield the rights of both. Thus, a just balance between the fundamental rights of the accused guaranteed under the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. Accordingly, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences. As a consequence, in our view this is a fit case for quashing the second F.I.R to meet the ends of justice. j) The investigating officers are the kingpi....