TaxTMI 
TaxTMI 
2022 (7) TMI 1469
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....arh Government) and the Paramilitary Forces consisting of the CRPF and the CoBRA Battalions are responsible for the alleged brutal massacre of the tribals in the respective villages referred to above. 3. In the aforesaid context, the writ Petitioners have prayed for the following reliefs: (a) Issue a writ of mandamus or any other appropriate writ, order or direction to the Respondents to have the CBI take over the investigation and prosecution with respect to the complaints made by the Petitioners and others with respect to the massacres that took place on 17.9.2009 and 1.10.2009 as set out in this petition; (b) Pass an order directing the payment of compensation to the victims and their families for the extra judicial executions, for the looting of their properties, for the burning of their houses and other losses suffered by the victims on account of the unlawful activities of the Respondents and their agents; (c) Pass any such further order or orders, as this Hon'ble Court may deem fit and proper in the facts and circumstances stated herein above. 4. By way of the Criminal M.P. No. 3173 of 2010, further reliefs have been prayed for as under: ....
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....to the Petitioner No. 1, the tongue and other parts of the body, such as, the upper limbs, lower limbs, etc. of the family members of the Petitioners Nos. 2 to 13 respectively were chopped off by the security force. It is alleged that the security forces did not spare even the infants. It is also alleged that the breast of a 70-year-old tribal woman were chopped off and was stabbed to death by the members of the police forces. It is also alleged that a 2-year-old infant was brutally murdered. The houses of the tribals were burnt. Money and properties were looted. 12. It has been further pointed out that on 8th January 2009, 19 people were killed by the above referred forces at the village Singaram, Tehsil Konta, District Dantewada. 13. On 18th March 2008, 3 tribals were killed at Matwada, Salwa Judum Camp, District Bijapur, by the Chhattisgarh Police and SPOs. 14. It has been pointed out that with respect to the aforesaid two incidents, the matter was taken up by the National Human Rights Commission. 15. It is the case of the Petitioner No. 1 that as the Special Forces and the State of Chhattisgarh itself are involved in the alleged brutal massacre of the tribals, the i....
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....e, failing so, ran away burning their hideouts. According to the Investigating Officer, even after a long search, no accused were found and on no possibility of finding the accused in near future, the closure report was forwarded on 20.10.2010 to the learned CJM, Dantewada having jurisdiction. The closure report was accepted on 26.10.2010 by the learned Chief Judicial Magistrate, Dantewada. 02 PS-Chintagufa Dt. - 20.09.2009 Crime No. 10/2009 Sec.- 307, 395, 397, 147, 148, 149, 302 IPC, 25, 27 Arms Act, 3, 4 Explosive Subs. Act. Shri Premprakash Awadhiya, Sub Inspector PS. - Sukma Unknown Uniformed female and male naxalites about 200- 300 in number. On 16.09.2009, the police party left for Singanmadgu for Anti Naxal operation from police station Chintagufa. On the morning of 17.09.2009, when the party reached the dense forests of Singanmadgu, the camp of Naxalites was seen from where some weapons and other items were recovered. Ahead of that, further, there was an EoF of SFs with Maoists, where a dead body of a Maoists was recovered. There after a while 200-300 unknown Naxalites again cordoned the police party and attacked the Security forces, in which Assistant....
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....ed - Madvi Bazar, Madvi Subbi, Madvi Mutti, Kattam Kanni, Madvi Enka, Soyam Subba and Soyam Jogi. Charge sheet filed on 09.09.2010 against 10 named absconding accused u/sec. 396, 397 IPC, 25, 27 Arms Act. Permanent Non-Bailable Warrant has been issued against the accused by the Hon'ble Judicial Magistrate First Class (JMFC) Konta. 05 PS-Bhejji Dt. - 21.02.2010 Crime No. 06/2010 Sec.- 147, 148, 149, 302 IPC, 25, 27 Arms Act. Shri Maadvi Hadma Add.- Gachchanpalli village. 20-25 Unknown Uniformed person carrying gun and banda. On 21.02.2010 on report of applicant Madvi Hadma resident of Gachchanpalli FIR No.-06/2010 under sections - 147, 148, 149, 302 IPC & 25, 27 Arms Act was registered at PSBhejji against unknown Naxalites for murder of Madvi Hidma, Madvi Joga, Kawasi Ganga, Madkami Chula & Dudhi Muye. Charge sheet filed on 09.09.2010 against 10 named absconding accused u/sec. 147, 148, 149, 302 IPC, 25, 27 Arms Act. Permanent Non-Bailable Warrant has been issued against the accused by the Hon'ble Judicial Magistrate First Class (JMFC) Konta. 06 PS-Bhejji Dt. - 22.02.2010 Crime No. 07/2010 Sec.- 147, 148, 149, 302 IPC, 25, 27 Arms Act. Shri Komram....
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....of its personnel while defending the State. In last two years, the security personnel who are killed by Naxalite in the State of Chhattisgarh would be in the range of 300. In the District of Dantewada alone, sixty-five police personnel have died. The State of Chhattisgarh has also stated in its earlier affidavit that these writ petitions are filed by Naxal sympathizers. In fact, the State of Chhattisgarh verily believes that mountains of complaints are filed so as to detract the police personnel from tackling the menace of Naxalism. The police personnel have lost their lives while combating the menace of Naxalite activities. A cavalcade of entire police personnel was ambushed in which even one S.P. died. PARAWISE REPLY: 1. The contents of paragraph No. 1 of the writ petition are denied and the attack on the police party by the Naxalites have been sought to be given the connotation of 'massacre'. The State of Chhattisgarh have explained the three incidents of 17.09.09 and 01.10.09 with Naxalites in detail in the subsequent paragraphs. The word 'massacre' is being used in a cursory manner without revealing the true nature of the incidents on 17.09.20....
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.... of those complaints are doubtful as they are in fixed format and typed in same manner. In any way, on 10.12.2009 even a visit was made to Gachanpalli to record the statements of Complainants. However no Complainants were found on 10.12.2009 as the Naxalites persuaded the Complainants to not to cooperate with the police. Now the Additional S.P. Dantewada has been entrusted with the job of completing the Investigation in a speedy manner. RE: INCIDENT OF 01.10.2009 [GOMPAD INCIDENT]: A team of security forces consisting of COBRA, local police and SPOs had started off on 30.09.2009 for Gompad village on the information of a naxal camp being run near village. When police party was about to reach the village at 06:30 AM on 01.10.2009, it came under heavy fire by Naxalites. The attack was repulsed and place was searched. Police did not find anybody. Afterwards the village was also searched but everyone fled away. The above incident is being investigated by Bhejji PS after registration of FIR No. 05/09 Under Section 147, 148, 149, 307 Indian Penal Code and 25, 27 Arms Act. The case has been transferred to CID for investigation. The SP office received complaints ....
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....wo year old infant was brutally murdered. Similarly it is also denied that blind man of 70 years old was executed. 3. & 4. The contents of paragraphs No. 3 & 4 of the writ petition are denied as long as they pertain to the incidents of 17.09.2009 and 01.10.2009. The FIR relating to the incidents of 17.09.2009 and that of 01.10.2009 have already been transferred to C.I.D. in accordance with the NHRC recommendations in Nandini Sunder's Case. The State of Chhattisgarh would follow the NHRC recommendation regarding the incidents of 17.09.2009 and 01.10.2009 and transfer of case to the CBI is completely unwarranted. In any case, whether a matter could be transferred to CBI or not is pending before the Constitution Bench of this Hon'ble Court and the judgment is still awaited. 5. In response to the contents of paragraph No. 5 of the writ petition, it is stated that writ petitions concerning incidents dated 18.03.2008 at District Bijapur and 08.01.2009 at District Dantewada are already pending before the Hon'ble High Court as Writ Petition Nos. 211/2008 & 363/2009 respectively. The Hon'ble High Court of Chhattisgarh is in seisin of the matter and the depo....
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....istrate and post-mortem report was made as per provisions of law. The alleged killings at Chintagufa (the other one than that of Siganpalli) came to the knowledge to the State of Chhattisgarh only after the receipt of this writ petition and same is being investigated upon. The recognition of Panda Soma and Ganga of Asarguda village are completely misplaced. It is reiterated that no person by the name of Ganga of Asarguda village have been SPO in police record of Dantewada. Panda Soma was killed in blast by Naxalites on 06.05.2009 and there is also a death certificate to that effect. Thus the presence of Panda Soma on 01.10.2009 is completely falsified. The allegations of looting, burning of houses, harassment & torture by the security forces are also denied vehemently. 8. The contents of paragraph No. 8 of the writ petition are denied. There have been no extra judicial killings and in fact several police personnel have also lost their lives. The Petitioners No. 2 to 13 may not like go to the police station but they can certainly go to Magistrate for registration of FIR Under Section 156(3) of the Code of Criminal Procedure. The judicial system even at the....
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....up for identification of dead bodies for almost three days. An FIR No. 27/2009 Under Section 147, 148, 149, 307 Indian Penal Code read with Section 25 & 27 of Arms Act have been registered at P.S. Konta. Now the Addl. S.P. Dantewada has been given charge to hold the enquiry in speedy manner. 22. The contents of paragraph No. 22 of the writ petition are denied. It is respectfully submitted that the villagers are living in state of fear from Naxalites and not from the State. 23. The contents of paragraph No. 23 of the writ petition are vehemently denied. The State of Chhattisgarh believes that story of hot boil is not seriously believed even by the Petitioner No. 1 and is a fiction. 24. The contents of paragraph No. 24 of the writ petition are denied. Certain matters are subjudice before Hon'ble High Court of Chhattisgarh at Bilaspur while in others the Complainants have not come forward and did not cooperate in the investigation. The State of Chhattisgarh is committed to register an FIR and even hold investigation provided the Complainants cooperate in the investigation process. In any case at the F.I.R.s concerning incidents of 17.09.09 and 01.10.09 h....
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....s of paragraph No. 28.6 of the writ petition are denied. The Complainants are in touch with the Petitioner No. 1 and the State of Chhattisgarh reiterates that if the Complainants come forward then their statements shall be recorded and investigation shall be done accordingly. However the Complainants have played truant. Normally one FIR is registered for one incident and subsequent complaints are recorded as statements Under Section 161 of the Code of Criminal Procedure and investigation takes place accordingly. Even if a formal separate FIR is registered, the Complainants and some of the Petitioners shall have to come forward to cooperate with the investigation. 28.7 The contents of paragraph No. 28.7 of the writ petition are vague and hence denied. 28.8 The contents of paragraph No. 28.8 of the writ petition are denied. It is respectfully submitted that word 'massacre' is misnomer. The State has not violated Articles 14, 19 and 21 of the Constitution of India. 21. We take notice of the fact that an affidavit-in-rejoinder has been filed, duly affirmed by the Petitioner No. 1, to the aforesaid reply filed by the State of Chhattisgarh. In the rejoinder, ....
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....ally false and frivolous. (4) Regarding Tying and parading: The allegation against the Force personnel is totally false as no person was apprehended or arrested during the operation. (5) Regarding Force displacement and terror: There are frequent reports of murder and torture of innocent people by naxalite cadres to terrorize the masses in the name Maoist ideology and it has also been informed by intelligence sources that naxalites are seen in security force uniforms in this region. Hence, the probability of naxalites themselves having indulged in these acts of terrorizing the tribals to coerce to support and join their naxal movement cannot be ruled out. It seems to be parts of naxals psychological war fare against the security forces with intention to stall and jeopardize the ongoing operations against them in their strong hold areas. (6) Regarding Gompada 'encounter' dated 1/10/09: On the basis of intelligence received from sources regarding presence of naxalites in the village of Gompad under the jurisdiction of PS Bheji on dated 30/09/09 special joint operation was planned involving party of SAF 201 Bn., Civil Police and SPOs. The party was g....
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....his 201 CoBRA/SAF Unit was neither deployed for operational duty in Mukundtong and Junitong villages nor they have committed any such act mentioned in allegation. Hence, vehemently denied. (10) Regarding looting and burning of property and houses: Force personnel of 201 CoBRA(SAF) Bn. neither looted nor stolen any property/money from any of the houses during operation. Rather the naxalites burnt down their own training infrastructure and hide outs when Force personnel carried out operations at their location. The allegations against Force personnel are fabricated and totally false as they were carrying sufficient ration and other items required for their personal use during the operations. (11) Regarding harassment and torture: No civilian was either harassed or tortured during the operation by 201 CoBRA(SAF) Bn. as alleged. Hence, this allegation against the Force personnel is false and denied. (12) Regarding presence of SPOs and Salwa Judum leader with security forces: Personnel of 201 CoBRA (SAF) did not conduct operation in Mukudtong village and hence no question of Salwa Judum leader accompanying them. However, CoBRA personnel carried out operation i....
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....he cause title of the Writ Petition. 15. In reply to para 15, it is submitted that the allegation is totally false as no such act was committed by 201 CoBRA (SAF) Bn. However, the name and number of the Petitioner given in the para does not tally with the list of Petitioners in the writ petition. 16. In reply to para 16, it is submitted that the Force of 201 CoBRA (SAF) Bn. did not carry out any operation in village Nulkatong on 1/10/09. Hence, the allegation against this Unit is totally incorrect and baseless. However, the name and number of the Petitioner given in the para does not tally with the list of Petitioners in the writ petition. 17. In reply to para 17, it is submitted that 201 CoBRA (SAF) Bn. personnel did not kill villagers or burnt their houses. However, on 17/9/09 201 CoBRA (SAF) Bn. personnel carried out operation in village Gachanpalli during which our personnel were ambushed by heavily armed naxalites and the personnel retaliated back in self defence. 18. In reply to para 18, it is submitted that 201 CoBRA (SAF) Bn. personnel did not kill villagers nor burnt their houses. However, on 17/9/09 201 CoBRA (SAF) Bn. personnel carried....
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....1: In reply to para 28.1, it is submitted that the grounds made by the Petitioners are false and fabricated because none of the act mentioned in the Writ Petition have been committed by the troops of this SAF/CRPF unit. However, being a specialized armed force of the union, the troops are deployed to enforce the law of the land and to protect the life and property to common people. There are frequent reports of civilian killings and torture of innocent by naxalite cadres wearing security forces' uniforms to terrorize the masses in the name of maoist ideology and they might have indulged in such acts to defame the security forces and demoralize them with the intention to stall and derail operations in their strong hold areas. 28.2: No comments are offered in reply to para 28.2. 28.3 to 28.9: No comments are offered in reply to para 28.3 to 28.9 PRAYER: a) That the Petitioner's request for CBI enquiry appears to be intended to delay the criminal investigation already being conducted by the State police against the naxalites. Hence, the prayer deserves not to be entertained. b) It is most respectfully and humbly submitted that the c....
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....security forces by tarnishing their image and shaking their confidence. It is also pertinent to mention here that the authenticity of Tehalka magazine, which the Petitioner is relying upon cannot believed as the dates mentioned in magazine are not correct. PARAWISE REPLY: 1. The contents of para 1 need no comments. 2. The reply to the contents of para 2 it is stated that the name of Madavi Hurre is only mentioned in the list of Petitioners and there is no mention in the writ petition that she has suffered any loss or injury at the hands of security forces. The Writ petition does not make a mention that she is the wife of Madvi Deva. The Petitioner has tried to prove her existence on the basis of her thumb impression on the vakalatnama but the document is not produced as Annexure. Hence, the fact cannot be admitted as proved. The Petitioner has failed to produce the witness in the court. If she is available, there should not be any objection in her production before the Hon'ble court. The fact of visit of the Madavi Hurre to Delhi on 20.10.2009 is not proved at all. On the other hand it is also humbly stated that all the 10 Petitioners produced have no....
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....them whereas the matter is subjudice before the Hon'ble Supreme Court, hence, the Petitioner himself had taken up the role of Judge in this matter, which clearly shows the intentions of the Petitioner No. 1 in the matter. 24. We may now look into the affidavit duly affirmed by Shri Rajesh Kukreja, Additional Superintendent of Police, Headquarter Dantewada, Chhattisgarh. In this affidavit, the information as regards the compensation paid to the members of the family of the deceased has been furnished. We quote the same as under: 3. It is submitted that in the affidavit dated 23.04.2010 the Petitioner has stated that Madvi Hurre is a resident of Singanpalli/Singanmadgu which is different from the name of the village (Gacchanpalli) mentioned in the Writ Petition. In the same affidavit the Petitioner has mentioned Late Madvi Deva was the husband of Petitioner No. 9. This is different from the name of husband mentioned in the Writ Petition which is Madvi Hurra. 4. It is submitted that on further investigation regarding Petitioner No. 9 has revealed that there is no such person by the name of Madvi Hurre in village Singanpalli/Singanmadgu. This is also confirmed ....
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.... 13. It is submitted that a sum of Rs. 1,00,000/- has been sanctioned to be paid to the Petitioner No. 11-Smt. Madkam Muke vide Collector-Dantewada Order No. 756 dated 04.03.2010. 14. It is submitted that a sum of Rs. 1,00,000/- has been sanctioned to be paid to the Petitioner No. 12--Shri Kowasi Kosa vide Collector-Dantewada Order No. 756 dated 04.03.2010. 15. It is submitted that a sum of Rs. 10,000/- has been sanctioned to the Petitioner No. 13-Smt. Sodi Sambo for sustaining injury vide Collector-Dantewada Order No. 889 dated 11.03.2010. 16. It is respectfully submitted that further investigation in the cases registered are being carried out by the State CID. SUMMATION OF THE STANCE OF THE RESPONDENTS: 25. Thus, if we have to sum up the stance of the Respondents, then the same is that the entire case put up by the writ Petitioners portraying the incidents of 17th September 2009 and 1st October 2009 respectively as a brutal massacre by the members of the different Police and Paramilitary Forces is palpably false. All the averments made in the memorandum of the writ petition are ex facie false and fabricated. An attempt has been made to mi....
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....nted out to the satisfaction of the Court. Nothing of that sort has been pointed out to this Court. SUBMISSIONS ON BEHALF OF THE WRIT PETITIONERS: 29. Mr. Colin Gonsalves, the learned Senior Counsel appearing for the Petitioners, vehemently submitted that the alleged brutal incidents of killing of the tribals should be investigated through the CBI. He would submit that the family members of the Petitioners were killed in cold-blood by the Chhattisgarh Police, Special Police Officers (SPOs) appointed by the Chhattisgarh Government in collusion with the activists of the Salwa Judum (group of vigilantes sponsored by the Chhattisgarh Government) and the Central Paramilitary Forces consisting of the CRPF and the CoBRA Battalion, in two separate attacks dated 17th September 2009 and 1st October 2009 respectively. 30. Mr. Gonsalves would submit that the State of Chhattisgarh and the Chhattisgarh Police have not done anything so far despite the fact that the eye-witnesses have identified the Accused persons in some of the cases. He would submit that not a single eye-witness has been called so far for the purpose of recording of his statement. The learned Senior Counsel would submi....
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....e parties, we have issued the following directions: Learned Senior Counsel appearing on behalf of the Petitioners submits that after the adjournment of this Writ Petition on 5th February, 2010 Petitioner Nos. 2 to 13 were illegally taken into custody or caused their disappearance by the Respondent-police. Learned Counsel appearing for the State of Chhatisgarh seriously disputes the correctness of the assertion made by the learned Senior Counsel about the police being responsible for causing the disappearance of Petitioner Nos. 2 to 13. We at this stage do not propose to express any opinion whatsoever on this issue relating to the alleged disappearance of the Petitioner Nos. 2 to 13. Be that as it may, we would like to examine the Petitioner Nos. 2 to 13 and hear their version as to what transpired in the matter after we have heard and adjourned the hearing of this petition on 5th February, 2010 or prior thereto. The interest of justice requires the production of Petitioner Nos. 2 to 13 in this Court. We, accordingly, direct Respondent No. 1 to produce the Petitioner Nos. 2 to 13 in this Court on 15th February, 2010 for the purpose of further hear....
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....es. The learned District Judge is requested to arrange for a videography of the entire proceedings. The Registrar Judicial will immediately convey this order to the District Judge. Copy of this order shall also be given to the counsel for all the parties. List this matter tomorrow at 1-15 p.m. in Court for further directions. 37. According to Mr. Mehta, in context with the aforesaid order, various statements of the Petitioners came to be recorded by the District Judge-I and Sessions Judge, Delhi. The plain reading of such statements of the Petitioners would indicate that they have no idea as to what has been stated in the memorandum of the writ petition and for what reasons the writ petition came to be filed. The statements recorded by the Judicial Officer in accordance with the directions issued by a Coordinate Bench of this Court vide the order referred to above, destroys the entire case put up by the writ Petitioner No. 1. 38. Mr. Mehta urged before this Court to take a strict view of the matter. Mr. Mehta also pointed out that the Union of India has filed an Interlocutory Application No. 52290 of 2022 seeking appropriate action against the Petitioners. We shall l....
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.... of 17/09/2009, when the party reached the dense forests of Singanmadgu, the camp of Naxalites were seen and exchange of fire took place. After encounter in search of the place of incident weapons and a body of naxal was recovered. Then after a while one km ahead 200-300 unknown Naxalites again cordoned the police party and attacked the Security forces, in which-Assistant Commandant Shriram Manoranjan, Assistant Commandant Shri Rakesh Kumar Chaurasiya, Sub Inspector Shri Sushil Kumar Varma, Head-Constable Lalit Kumar, Constable Manoharlal Chandra and Constable Uday Kumar Yadav of Cobra Company were martyred and four others Constable Satpal, Constable Harish Thakur, Constable Kamalvoshe and Constable Mohammad Husain Quraishi were also injured. Gist of Final Report: According to the investigating officer, even after a long search no Accused were found and since there was no possibility of finding in near future, closure report has been filed before the Hon'ble Trial court on 20.10.2010. Present Status: According to the closure report presented by the investigating officer, even after a long search no Accused were found and on no possibility of finding in near fu....
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....on an anti naxal operation on 30/09/2009 from injram. On 01.10.2009 this combined party was ambushed by Naxalites in Gompad. Gist of Final Report: According to the investigating officer, even after a long search no Accused were found and on no possibility of finding in near future closure report is filed before the Hon'ble court on 20.10.2010 Present Status: According to the closure report presented by the investigating officer, even after a long search no Accused were found and on no possibility of finding in near future closure report is accepted on 26.10.2010 by the learned Chief Judicial Magistrate. Crime No.: 01/2010 Police Station: Bhejji Date of Registration: 08/01/2010 Sections: 396, 397 Indian Penal Code, 25, 27 Arms Act. Date of Incident: Approximately a week before Deewali. Complainant: Shri Soyam Rama (Petitioner No. 2) Accused: Unknown Armed uniformed person 20-25 Absconding Accused- 1-Venktesh s/o. Unknown 2-Rajesh alias Joga s/o. Unknown 3-Vijay alias Vijay alias Ekanna 4-Savitri Bhai w/o. Unknown 5-Manila w/o. Unknown 6-Bhima s/o....
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....itioners: 1. Hot oil theory retracted: Petitioner claimed in the Writ Petition at Page E of the Synopsis and Page 9 of the Petition Paper book that one Muchki Deva (60yrs) of Ondhepara was grazing cattle on the morning of 17th September. He was caught, beaten and dragged into the village by security forces. He was hanged upside down from a tree and a pot of oil was lit below and he was dropped into it. As a result, the upper part of his body was severely burnt and he had developed maggots in his wounds. However, thereafter the Petitioners filed an Application before this Hon'ble Court dated 02.02.2010 bearing Crl. M.P. No. 3173/2010 seeking directions from this Hon'ble Court. In the said Application, the Petitioners retracted the Hot Oil Theory in Paragraph 18 of the Application stating that it was a mistake that took place during translations. It was now claimed that Muchki was burnt by electrocution by attaching wires to his head. It is important to note that the present Writ Petition was filed on around 27.10.2009, notice by this Court was issued on 23.11.2009 on the basis of the contents of the Writ Petition, and the Interlocutory App....
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.... affidavit on record whereby Petitioners No. 2 to 13 have authorised Petitioner No. 1. 42. In such circumstances referred to above, Mr. Sodhi prays that there being no merit in the present writ petition, the same may be rejected with exemplary costs and appropriate actions against each of the writ Petitioners for misleading the Court and fabricating false evidence. ANALYSIS: 43. Having heard the learned Counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is, whether any case has been made out by the writ Petitioners for the investigation of the two incidents through the CBI. POSITION OF LAW: 44. It is now settled law that if a citizen, who is a de facto complainant in a criminal case alleging commission of cognizable offence affecting violation of his legal or fundamental rights against high Government officials or influential persons, prays before a Court for a direction of investigation of the said alleged offence by the CBI, such prayer should not be granted on mere asking. A Constitution Bench of this Court, in the case of the State of West Bengal and Ors. v. Committee for Protectio....
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.... issuance of directions to the CBI to conduct investigation must be exercised with great caution as underlined by this Court in the case of Committee for Protection of Democratic Rights, West Bengal (supra) as adverted to herein above, observing that although no inflexible guidelines can be laid down in this regard, yet it was highlighted that such an order cannot be passed as a matter of routine or merely because the parties have levelled some allegations against the local police and can be invoked in exceptional situations where it becomes necessary to provide credibility and instill confidence in the investigation or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice and for enforcing the fundamental rights. We are conscious of the fact that though a satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or re-investigation, submission of the charge sheet ipso facto or the pendency of the trial can, by no means, be a prohibitive impediment. The contextual facts and the attendant....
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....ngal (supra), that mere allegations against the police do not constitute a sufficient basis to transfer the investigation. 51. In Romila Thapar v. Union of India, (2018) 10 SCC 753, one of us, A.M. Khanwilkar, J., speaking for a three-Judge Bench of this Court (Dr. D.Y. Chandrachud, J. dissenting) noted the dictum in a line of precedents laying down the principle that the Accused "does not have a say in the matter of appointment of investigating agency". In reiterating this principle, this Court relied upon its earlier decisions in Narmada Bai v. State of Gujarat, (2011) 5 SCC 79, Sanjiv Rajendra Bhatt v. Union of India, (2016) 1 SCC 1, E. Sivakumar v. Union of India, (2018) 7 SCC 365, and Divine Retreat Centre v. State of Kerala, (2008) 3 SCC 542. This Court observed: 30...the consistent view of this Court is that the Accused cannot ask for changing the investigating agency or to do investigation in a particular manner including for court-monitored investigation. 52. It has been held by this Court in CBI and Anr. v. Rajesh Gandhi and Anr. 1997 Cr.L.J. 63, that no one can insist that an offence be investigated by a particular agency. We fully agree with the view in t....
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....ers nor any of the writ Petitioners, more particularly, the writ Petitioner No. 1, the protagonist behind the filing of the present writ petition, running an NGO, has any idea about the charge sheets and the materials collected in the course of the investigation. If the investigation has already been carried out and charge sheets have been filed and if the court has to now consider the plea of the writ Petitioners, then the same would become a case of further investigation. 59. We shall highlight as to why we are saying so as above. We come back to the order passed by a Coordinate Bench of this Court dated 15th February 2010. Pursuant to the same, the statements of the Petitioners were recorded by the District and Sessions Judge, Delhi. We may quote one such statement recorded by the District and Sessions Judge of the Petitioner No. 2, namely, Soyam Rama. We quote the entire statement as under: Present: Petitioner No. 1 Himansu Kumar alongwith Counsel Shri Colin Gonslaves. Sr. Advocate alongwith Shri Divya Jyoti, Advocate. Shri Atul Jha Advocate alongwith Shri D.K. Sinha Advocate, Counsel for State of Chhattisgarh. Shri P.K. Dey, Advocate on b....
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..... Q. Has anybody put any pressure upon you to make any particular statement? Has anybody terrorized you? Ans. Nobody has pressurized or terrorized me. Q. Do you want to make a statement of your own free will? A. Yes. (I am satisfied that Shri Soyam Rama is not under any pressure coercion or terror to make the statement.) I feel that the statement being made by him is out of his free will. Let the statement be recorded on oath. The oath be also administered to both the interpreters. Statement of Shri Soyam Rama s/o. Shri Soyam Kanna, aged 38 years r/o. village Gopade, on S.A. (through interpreter Shri Mohan Sinha, in presence of Petitioner Himanshu Kumar. Both the interpreters have also stated on oath that whatever shall be asked from the witness and his answers shall be interpreted correctly & truly). On. 1.10.2009, there was a firing in the house of my paternal uncle Madhvi Bajaar. In the firing, my paternal uncle Madvi Bajaar and paternal aunt Smt. Madvi Sudvi Subi and niece Madvi Muddi and Smt. Kartan Katti were killed. One more person, whose name I cannot tell, was also killed in the firing. We had....
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.... 15.02.2010 Sh. G.P. MITTAL &nbs....
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.... District Judge-I & Sessions Judge Sd/- (Mohan Sinha) (emphasis supplied) 60. All other statements of the rest of the writ Petitioners are on the same line and footing. 61. When we called upon Mr. Gonsalves to make us understand as to why his clients had to make such statements before the Judicial Officer, a very curious reply came from Mr. Gonsalves. According to Mr. Gonsalves, the entire mode and manner in which the statements were recorded by the Judicial Officer of the rank of District and Sessions Judge was absolutely incorrect. According to the learned Senior Counsel, specific questions ought to have been put by the Judicial Officer to each of the writ Petitioners while recording their statements in accordance with the directions issued by this Court vide order dated 15th February 2010 referred to above. 62. We are afraid, we are not in a position to accept s....
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....failing which, it shall be open for the authority concerned to take appropriate steps in accordance with law for the recovery of the requisite amount. Pending application, if any, stands disposed of. INTERLOCUTORY APPLICATION NO. 52290 OF 2022 67. This is an application at the instance of the Union of India with the following prayers: (a) Hold the Petitioners guilty of leveling false charges of offence and of giving false and fabricated evidence before this Hon'ble Court with an intention to procure conviction for a capital offence or for life imprisonment against the personnel of security forces and to screen off the actual offenders of Left Wing (Naxal) terrorism; (b) Pass an order directing CBI/NIA or any other central investigating agency or any other monitoring committee, as this Hon'ble Court deems fit and proper, to register an FIR and conduct an in-depth investigation to identify the individuals/organizations, who have been conspiring, abetting and facilitating filing of petitions premised on false and fabricated evidence before this Hon'ble Court as well as before the Hon'ble High Courts with a motive to either deter the security age....
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....n here that the acts of torture and killings of the villagers have been pleaded to be of such beastly and horrific nature, so as to invoke and instigate an instantaneous response of outrage by this Hon'ble Court, undeniably leading to grant of relief/interim relief as prayed in the petition. In pith and substance, the reliefs prayed were of the nature where operations of security forces were sought to be halted and Left Wing Extremists were sought to be granted legal protection under the narrative of victimization. 8. It is respectfully submitted that a bare perusal of the recordings etc. submitted by the Ld. District Judge before this Hon'ble Court reveals that all the averments made by the Petitioner in the petition were ex-facie false and fabricated and it is now clear that all the said deceitful averments were made by the Petitioner with malicious and audacious attempt to mislead this Hon'ble court and to obtain orders from this Court by playing fraud on its conscience and magnanimity. 9. In the respectful submission of the applicant, it is apparent that the said insolent false averments were made with a malafide objective to change the narrative o....
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.... the rest of the members of the armed forces in planning or participating in a similar operations. It is submitted that all this was done before the highest court of the country and at the altar of the national security. This was a fraud played on the constitutional remedies and an abuse thereof of the highest order. 13. In effect in the respectful submission of the applicant/UOI, it is now also apparent that the present ex-facie false and fraudulent petition was filed to deceit this Hon'ble court and to provide a legal protective shield to the members of Left Wing Extremist outfits. In the respectful submission of the applicant the present petition is nothing but a subterfuge and a part of the conspiracy to cover the offence committed by the Left Wing Extremists and to facilitate unhindered future operations by weakening the security forces which is the only challenge deterring their intentions and operations. The Petitioners, in the respectful submission of the applicant, by preferring the instant deceitful petition, have not only conspired and abetted the commissioning of the crime but have also conspired and abetted in covering up the crime and screening the offend....
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....1. Giving false evidence.--Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence. Section 192. Fabricating false evidence.--Whoever causes any circumstance to exist or makes any false entry in any book or record, or electronic record or makes any document containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said to "to fabricate false evidence". Section 193. Punishment for false evidence.-Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fab....
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....a Magistrate of the first class having jurisdiction; (d) take sufficient security for the appearance for the Accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the Accused in custody to such Magistrate; and (e) bind over any person to appear and given evidence before such Magistrate; (2) The power conferred on a Court by Sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint Under Sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of Sub-section (4) of Section 195. (3) A complaint made under this Section shall be signed,- (a) where the Court making the complaint is a High Court, by such officer of the Court as the court may appoint; (b) in any other case, by the presiding officer of the court or by such officer of the Court as the Court may authorise in writing in this behalf. (4) In this section, "Court" has the same meaning as in Section 195. 72. Thus, from ....
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....has been made, have a great bearing and indeed action is taken having regard to the overall opinion formed by the court in the earlier proceedings. 21. At an enquiry held by the court Under Section 340(1), Code of Criminal Procedure, irrespective of the result of the main case, the only question is whether a prima facie case is made out which, if unrebutted, may have a reasonable likelihood to establish the specified offence and whether it is also expedient in the interest of justice to take such action. 74. In Baban Singh and Anr. v. Jagdish Singh and Ors. reported in AIR 1967 SC 68, this Court observed the following in paragraph 7 as under: 7. The matter has to be considered from three stand points. Does the swearing of the false affidavits amount to an offence Under Section 199, Indian Penal Code or under either Sections 191 or 192, Indian Penal Code? If it comes under the two latter sections, the present prosecution cannot be sustained, Section 199 deals with a declaration and does not state that the declaration must be on oath. The only condition necessary is that the declaration must be capable of being used as evidence and which any Court of justice or a....
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....and the court should be satisfied that there is reasonable foundation for the charge. 76. Similarly in Chandrapal Singh and Ors. v. Maharaj Singh and Anr. (1982) 1 SCC 466, this Court, in para 14, stated as under: 14. That leaves for our consideration the alleged offence Under Section 199. Section 199 provides punishment for making a false statement in a declaration which is by law receivable in evidence. We will assume that the affidavits filed in a proceeding for allotment of premises before the Rent Control Officer are receivable as evidence. It is complained that certain averments in these affidavits are false though no specific averment is singled out for this purpose in the complaint. When it is alleged that a false statement has been made in a declaration which is receivable as evidence in any Court of Justice or before any public servant or other person, the statement alleged to be false has to be set out and its alleged falsity with reference to the truth found in some document has to be referred to pointing out that the two situations cannot co-exist, both being attributable to the same person and, therefore, one to his knowledge must be false. Rival contentio....
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....dent that the inquiry/contempt proceedings should be initiated by the court in exceptional circumstances where the court is of the opinion that perjury has been committed by a party deliberately to have some beneficial order from the court. There must be grounds of a nature higher than mere surmise or suspicion for initiating such proceedings. There must be distinct evidence of the commission of an offence by such a person as mere suspicion cannot bring home the charge of perjury. More so, the court has also to determine as on facts, whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed. 78. It is clear through from a reading of the aforesaid judgments that there should be something deliberate-a statement should be made deliberately and consciously which is found to be false as a result of comparing it with unimpeachable evidence, documentary or otherwise. 79. It is true that an affidavit is 'evidence' within the meaning of Section 191 of the Indian Penal Code and a person swearing to a false affidavit is guilty of perjury. But the matter does not rest here. Before initiating the proceedings for perjury, th....
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.... justice to enquire into offence which appears to have been committed. 81. Section 340 of the Code of Criminal Procedure came up for the consideration before a three-Judge Bench of this Court in the case of Pritish v. State of Maharashtra, (2002) 1 SCC 253. In Pritish (supra), this Court was called upon to consider, whether it is mandatory on the part of the court to make a preliminary inquiry Under Section 340 of the Code of Criminal Procedure before filing a complaint Under Section 195 of the Code of Criminal Procedure and further, whether the court is required to afford an opportunity of hearing to the person against whom a complaint is filed before a Magistrate for initiating prosecution proceedings. This Court took the view that an opportunity to the would be Accused before the filing of the complaint was not mandatory, and observed that the preliminary inquiry was itself not mandatory. The Court observed thus: 9. Reading of the Sub-section makes it clear that the hub of this provision is formation of an opinion by the court (before which proceedings were to be held) that it is expedient in the interest of justice that an inquiry should be made into an offence whic....
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....all proceed to deal with the case as if it were instituted on a police report. That being the position, the Magistrate on receiving the complaint shall proceed Under Section 238 to 243 of the Code. 11. Section 238 of the Code says that the Magistrate shall at the outset satisfy himself that copies of all the relevant documents have been supplied to the Accused. Section 239 enjoins on the Magistrate to consider the complaint and the documents sent with it. He may also make such examination of the Accused, as he thinks necessary. Then the Magistrate has to hear both the prosecution and the Accused to consider whether the allegations against the Accused are groundless. If he finds the allegations to be groundless he has to discharge the Accused at that stage by recording his reasons thereof. Section 240 of the Code says that if the Magistrate is of opinion, in the aforesaid inquiry, that there is ground for presuming that the Accused has committed the offence he has to frame a charge in writing against the Accused. Such charge shall then be read and explained to the Accused and he shall be asked whether he pleads guilty of the offence charged or not. If he pleads not guilty t....
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....on to order inquiry into the offence itself would prima facie amount to holding him, if not guilty, very near to a finding of his guilt. We have pointed out earlier that the purpose of conducting preliminary inquiry is not for that purpose at all. The would-be Accused is not necessary for the court to decide the question of expediency in the interest of justice that an inquiry should be held. We have come across decisions of some other High Courts which held the view that the persons against whom proceedings were instituted have no such right to participate in the preliminary inquiry (vide M. Muthuswamy v. Special Police Establishment [1985 Cri. LJ 420 (Mad)]). (emphasis supplied) 82. In M.S. Sheriff and Anr. v. State of Madras and Ors. AIR 1954 SC 397, a Constitution Bench of this Court said that no expression on the guilt or innocence of persons should be made by court while passing an order Under Section 340 of Code of Criminal Procedure. An exercise at that stage is not for finding whether any offence was committed or who committed the same. The scope is confined to see whether the court could then decide on the materials available that the matter requires inquiry by a cr....
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....giving a direction to file complaint against Defendants 1 to 6, it was necessary for the learned Single Judge to conduct a preliminary enquiry as contemplated Under Section 340 Code of Criminal Procedure and also to afford an opportunity of being heard to the Defendants, which was admittedly not done. 8. We, therefore, in the interest of justice, allow these appeals, set aside the impugned order of the High Court passed in the application filed by Respondent 1-Plaintiff Under Section 340 Code of Criminal Procedure and remit the matter to the learned Single Judge to decide the application Under Section 340 Code of Criminal Procedure afresh in accordance with law, and after affording reasonable opportunity of being heard to the Defendants, against whom the learned Single Judge ordered enquiry. 85. Later, the judgment in Pritish (supra) came to be relied upon by a two Judges Bench of this Court in Amarsang Nathaji (supra). While dealing with the propriety of the procedure adopted by the court making a complaint Under Section 340 of the Code of Criminal Procedure, the Bench in Amarsang Nathaji observed as follows: 7. In the process of formation of opinion by the co....
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....further. We have said in so many words that this is a very serious matter as it relates directly to the security of the nation. 89. In the aforesaid context, we have something else in mind. We propose to look into Section 211 of the Indian Penal Code. Section 211 of the Indian Penal Code is extracted hereunder: Section 211. False charge of offence made with intent to injure.--Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; and if such criminal proceeding be instituted on a false charge of an offence punishable with death, [imprisonment for life], or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 90. The essential ingredients for invoking Section 211, Indian Penal Code....
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....at false information was given by the first informants to the police as regards the alleged massacre by the police force. 93. The essential to be satiated in order to attract the offence Under Section 211 of the Indian Penal Code was elucidated by this Court in Santokh Singh and Ors. v. Izhar Hussan and Anr., (1973) 2 SCC 406. The relevant paragraph is extracted hereinunder: 10. ... This Section as its marginal note indicates renders punishable false charge of offence with intent to injure. The essential ingredient of an offence Under Section 211 Indian Penal Code is to institute or cause to be instituted any criminal proceeding against a person with intent to cause him injury or with similar intent to falsely charge any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge. Instituting or causing to institute false criminal proceedings assume false charge but false charge may be preferred even when no criminal proceedings result. It is frankly conceded by Shri Kohli that the Appellant cannot be said to have instituted any criminal proceeding against any person. So that part of Section 211 Indian Penal Code....
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....framed in that trial. The words "falsely charges" have to be, read along with the expression "institution of criminal proceeding". Both these expressions, being susceptible of analogous meaning should be understood to have been used in their cognate sense. They get as it were their colour and content from each other. They seem to have been used in a technical sense as commonly understood in our criminal law. The false charge must, therefore, be made initially to a person in authority or to someone who is in a position to get the offender punished by appropriate proceedings. In other words, it must be' embodied either in a complaint or in a report of a cognizable offence to the police officer or to an officer having authority over the person against whom the allegations are made. The statement in order to constitute the "charges" should be made with the intention and object of setting criminal law in motion. 95. Thus, we leave it to the State of Chhattisgarh/CBI (Central Bureau of Investigation) to take appropriate steps in accordance with law as discussed above in reference to the assertions made in the interim application. We clarify that it shall not be limited only to the....
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....e of the charge Under Section 211 Indian Penal Code against the Appellant. 11. There is, of course, no doubt that in the complaint before the Magistrate a charge Under Section 211 Indian Penal Code, against the Appellant was included, so that the first ingredient clearly existed. The question on which the decision in the present cases hinges is whether it can be held that any proceeding in any court existed when that Magistrate took cognizance. If any proceeding in any court existed and the offence Under Section 211 Indian Penal Code, in the complaint filed before him was alleged to have been committed in such a proceeding, or in relation to any such proceeding, the Magistrate would have been barred from taking cognizance of the offence. On the other hand, if there was no proceeding in any court at all in which, or in relation to which, the offence Under Section 211 could have been alleged to have been committed, this provision barring cognizance would not be attracted at all. 12. In this case, as we have already indicated when enumerating the facts, the complaint of which cognizance was taken by the Judicial Magistrate at Chandigarh was filed on April 11, 1959 an....