amit shah sc (tulsi prajapati) separate fir case

8/13/2019 Amit Shah SC (Tulsi Prajapati) Separate FIR Case

1/61

Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 149 OF 2012

Amitbhai Anilchandra Shah .... Petitioner(s)

Versus

The Central Bureau ofInvestigation & Anr. .... es!ondent(s)

WITH

WRIT PETITION (CRIMINAL) NO. 5 OF 2013

J U D G M E N T

P. S!"#$%&' J.

") Amitbhai Anilchandra Shah has filed the !resent #rit

Petition being $o. "% of '"' under Article ' of the

Constitution of India o*ing to the filing of fresh +I being $o.

C,(S)-'""-umbai dated '.%.'"" b/ the Central

Bureau of Investigation (CBI) and charge sheet dated

%..'"' arra/ing him as an accused in vie* of the

1


2/61

Page 2

directions given b/ this Court to the Police Authorities of the

0u1arat State to handover the case relating to the death of

Tulsiram Pra1a!ati , a material *itness to the 2illings of

Sohrabuddin and his *ife 3ausarbi to the CBI in Narmada

Baivs. State of Gujarat & Ors.,('"") 4 SCC 5.

') In Narmada Bai (supra)6 this Court6 ta2ing note of the

fact that the charge sheet has been filed b/ the State of

0u1arat after a ga! of 7 /ears and also considering the

nature and gravit/ of the crime6 re1ected the investigation

conducted-concluded b/ the State Police and directed the

State !olice authorities to handover the case to the CBI.

After investigation6 the CBI filed a fresh +I dated

'.%.'"" against various !olice officials of the States of

0u1arat and a1asthan and others for acting in furtherance of

a criminal cons!irac/ to screen themselves from legal

conse8uences of their crime b/ causing the disa!!earance

of human *itness6 i.e.6 Tulsiram Pra1a!ati6 b/ murdering him

on '9."'.': and sho*ing it off as a fa2e encounter.

Though the said +I did not s!ecificall/ name an/ !erson6 in

the charge sheet dated %..'"' filed in the said +I

2


3/61

Page 3

before the Court of ;udicial agistrate +irst Class6


4/61

Page 4

4) =eard r. ahesh ;ethmalani6 learned senior counsel

for the !etitioner in #.P. (Crl.) $o. "% of '"'6 r. 3.V.

Vis*anathan6 learned senior counsel for the !etitioner in

#.P. (Crl.) $o. 4 of '"6 r. =.P. a*al6 learned Additional

Solicitor 0eneral for the CBI and r. Tushar ehta6 learned

Additional Advocate 0eneral for the State of 0u1arat.

D$#/##$*+

:) A !erusal of the !ra/er in the *rit !etition clearl/

sho*s that the !etitioner is not see2ing 8uashing of

investigation6 ho*ever6 !ra/ing for 8uashing of second +I

being $o. C,(S)-'""-umbai dated '.%.'"" and also

!ra/ing that the charge sheet dated %..'"' in res!ect of

the said +I be treated as su!!lementar/ chargesheet in first

+I being $o. C $o. %S of '" so that his fundamental

right under Article '" is not infringed.

5) r. ahesh ;ethmalani6 learned senior counsel for the

!etitioner !ointed out that the reliefs sought for are in

consonance *ith the la* laid do*n b/ this Court in C.

Muniappan & Ors.vs. State of Tamil Nadu('") SCC

4


5/61

Page 5

4:5. =e ver/ much relied on !ara 5 of the said 1udgment

*hich holds as under>

[email protected]/ because t*o se!arate com!laints had beenlodged6 did not mean that the/ could not be clubbedtogether and one charge sheet could not be filed

9) It is also !ointed out b/ learned senior counsel for the

!etitioner,Amit Shah that the above said !ra/er is based

u!on CBIs o*n finding that the offence covered b/ the

Second +I is !art of the same cons!irac/ and culminated

into the same series of acts forming !art of the same

transaction in *hich the offence alleged in the first +I *as

committed. It is also !ointed out that it is the case of the

CBI itself before this Court that even the charges *ill have to

be framed 1ointl/ and one trial *ill have to be held as

contem!lated under Section '' of the Code of Criminal

Procedure6 "5 (in short the Code). It is further !ointed

out that as !er the CBI6 the alleged criminal cons!irac/

commenced *hen Sohrabuddin and 3ausarbi (*hose deaths

*ere in 8uestion in the first +I) and Tulsiram Pra1a!ati

(*hose death *as in 8uestion in the second +I) *ere

abducted from =/derabad after *hich Sohrabuddin *as

5


6/61

Page 6

allegedl/ 2illed on '4-':."".'4 and 3ausarbi and Tulsiram

Pra1a!ati *ere 2illed thereafter since the/ *ere6 as !er CBI6

the e/e,*itnesses. +inall/6 it is highlighted that the

com!etent 1urisdictional court has alread/ ta2en cogniDance

of all the three alleged 2illings in the chargesheet-challan

filed b/ the CBI in the first +I itself.

) Before going into the factual matriE as !ro1ected b/

learned senior counsel for the !etitioner6 it is desirable to

refer to the stand ta2en b/ the CBI.

") It is the definite case of the CBI that the abduction of

Sohrabuddin and 3ausarbi and their subse8uent murders as

*ell as the murder of Tulsiram Pra1a!ati are distinct offences

arising out of se!arate cons!iracies though inter,connected

*ith each other as the motive behind the murder of Tulsiram

Pra1a!ati *as to destro/ the evidence in res!ect of the

abduction of Sohrabuddin and 3ausarbi6 as he *as a !rime

*itness to the said incident. It is not in dis!ute that as !er

the scheme !rescribed in the Code6 once a com!laint is

received *ith res!ect to a cogniDable offence6 the

6


7/61

Page 7

investigating authorit/ is dut/ bound to register an +I and6

thereafter6 initiate investigation.

"") r. a*al6 learned Additional Solicitor 0eneral

a!!earing for the CBI6 b/ dra*ing our attention to Section

'"9 of the Code submitted that a distinct charge is to be

framed for a distinct offence6 i.e.6 there has to be a se!arate

charge for se!arate offence and each distinct charge has to

be tried se!aratel/. =e further !ointed out that the conce!t

of 1oint trial6 *hich is an eEce!tion and not the rule cannot

be made a!!licable to the stage either of investigation or

the filing of charge sheet of a re!ort under Section "5(') of

the Code. =e also highlighted that in the Code6 there is no

conce!t of 1oint investigation. The onl/ eEce!tion is under

Sections '" and '' of the Code that a !erson can be tried

at one trial for more offences than one committed *ithin a

!eriod of one /ear. =e also !ointed out that there is no bar

in la* to file se!arate +I-com!laint in res!ect of t*o distinct

offences and similarl/ there is no bar to file t*o se!arate

charge,sheets for see2ing !rosecution of accused in t*o

distinct offences. =e further highlighted that in T.T.

7


8/61

Page 8

Anthon vs. State of !erala ('") : SCC "9"6 the

!rinci!le that *as laid do*n *ith regard to the bar of filing of

the second +I *as onl/ in res!ect of the same incident or

occurrence. According to him6 *hether the offences are

distinct or same *ould necessaril/ have to be eEamined in

the facts and circumstances of each case. =e also submitted

that the facts urged in the affidavit *ere on the basis of

mere sus!icion6 hence6 CBI cannot be held to be bound b/ its

initial res!onse in the status re!ort or the affidavit since on a

com!lete investigation6 it is revealed that not onl/ both the

offences are distinct and se!arate but both the cons!iracies

*ere also hatched at different !oints of time. It is also

!ointed out b/ the CBI that the abduction and subse8uent

murder of Sohrabuddin and the murder of Tulsiram Pra1a!ati

after a !eriod of more than one /ear are se!arate and

distinct offences. According to him6 the material available

*ith the CBI *ould sho* distinct and se!arate cons!irac/ to

eliminate Sohrabuddin and6 thereafter6 another cons!irac/

*as hatched in order to eliminate Tulsiram Pra1a!ati as soon

as the accused !ersons a!!rehended that Tulsiram Pra1a!ati

8


9/61

Page 9

*ould s!ill the beans *ith res!ect to elimination of

Sohrabuddin in a fa2e encounter.

"') It is the definite case of the CBI that the investigation

has revealed that subse8uent to the murder of =amid Fala6

Sohrabuddin and Tulsiram Pra1a!ati continued their criminal

activities in the States of aharashtra6 a1asthan and

0u1arat. =o*ever6 Sohrabuddin remained elusive and

be/ond the reach of the 0u1arat Police. It *as6 therefore6

that the accused Amit Shah (!etitioner herein)6


10/61

Page 10

accordance *ith his clandestine agreement *ith the 0u1arat

Police6 informed them in advance about the !lan of

Sohrabuddin to travel to Sangli from =/derabad and6

thereafter6 Sohrabuddin *as abducted and murdered. B/

!ointing out the above factual details6 it is the stand of the

CBI that the first cons!irac/ too2 !lace to eliminate

Sohrabuddin *ith the hel! of Tulsiram Pra1a!ati *ho agreed

to trace and locate him after the assurances given b/ the

0u1arat Police. Thus6 in the aforesaid cons!irac/6 Tulsiram

Pra1a!ati can be said to be a !art of the said cons!irac/

though not 2no*ing the motive about the same.

") It is further !ointed out that in !ursuance of the

aforesaid criminal cons!irac/6 Sohrabuddin6 3ausarbi and

Tulsiram Pra1a!ati *ere brought to Valsad6 0u1arat in

vehicles b/ 0u1arat Police. +rom Valsad6 Tulsiram Pra1a!ati

*as allo*ed to return to Bhil*ara6 a1asthan b/ the !olice

!art/. Subse8uentl/6 Sohrabuddin *as murdered and sho*n

as if he *as a Fash2ar,e,Taiba terrorist 2illed in an encounter

*ith a !olice !art/ on ':."".'4 at Ahmedabad *hile his

*ife 3ausarbi *as murdered on '-."".'4 and her bod/

10


11/61

Page 11

*as dis!osed off. Tulsiram Pra1a!ati *as sho*n to be

arrested on '."".'4. Since then6 he had been lodged in

Gdai!ur ;ail till he met his fate.

"%) The most vital evidence that seems to have triggered

Tulsiram Pra1a!atis death is a letter of Shri V.F. Solan2i

dated "9."'.': see2ing !ermission to interrogate Tulsiram

Pra1a!ati and S/lvester lodged in Gdai!ur ;ail. Hn the ver/

same letter6 s. 0eetha ;ohri6 head of the SIT is alleged to

have recorded that even she ma/ be given !ermission to

accom!an/ the IH for interrogation. Thereafter6 the said

letter is alleged to have been endorsed b/ s. 0eetha ;ohri

to Shri 0.C. aiger6 Additional


12/61

Page 12

"4) It is also !ointed out b/ the CBI that at the time of the

murder of Sohrabuddin6 there *as no cons!irac/ to murder

Tulsiram Pra1a!ati and it is onl/ subse8uent to his murder

*hen the accused !ersons feared of Tulsiram Pra1a!ati being

a threat to them and *ould s!ill the beans as he *as a

material *itness in the first cons!irac/ inasmuch as tracing

and locating of Sohrabuddin on the assurances of the

accused6 another cons!irac/ *as hatched to murder a

!otential *itness to the murder of Sohrabuddin. B/

highlighting these factual details6 it is !ointed out b/ the CBI

that there *ere t*o distinct and se!arate cons!iracies.

":) #ith these factual as!ects6 as !ro1ected b/ the CBI6 let

us anal/De further details highlighted b/ learned senior

counsel for the !etitioner as *ell as the s!ecific stand of the

CBI in the earlier !roceedings asserted before this Court in

the form of affidavit-counter affidavit and status re!orts.

E+!#!&+! *- $+%#!$!$*+ !* !" CBI $+ #/! *-I#! FIR

"5) Initiall/6 0u1arat !olice conducted investigation into the

2illing of t*o individuals and filed charge sheet in the +I

12


13/61

Page 13

being Crime egister $o. 4-':. This Court6 in the *rit

!etition filed in "u#a##uddin Shei$h vs. State of Gujarat

and Others ('") ' SCC ' did not acce!t the

investigation of the 0u1arat Police and conse8uentl/ directed

the CBI to conduct investigation. This order *as !assed b/

this Court on "'.".'". In the said decision6 this Court

eE!ressed a sus!icion that the alleged 2illing of Tulsiram

Pra1a!ati could be the !art of the same cons!irac/. It is

useful to refer the relevant eEcer!ts from the above decision

*hich are as under>

?(i) The *rit !etitioner also see2s the registration of anoffence and investigation b/ CBI into the alleged encounterof one Tulsiram6 a close associate of Sohrabuddin6 *ho *asallegedl/ used to locate and abduct Sohrabuddin and his

*ife 3ausarbi6 and *as thus a material *itness against the!olice !ersonnel.

(ii) The re!ort eE!ressl/ states that no lin2 of TulsiramPra1a!ati had been established in this case. The third!erson *ho *as abducted *as not to be the said TulsiramPra1a!ati.

(iii) Hn '.9.'56 the seventh action ta2en re!ort *asfiled6 *hich stated that the third !erson *ho *as !ic2ed u!*as one 3alimuddin6 *ho *as sus!ected to be an informer

of the Police.

(iv) +rom the charge,sheet6 it also a!!ears that the third!erson *as ?sent some*here. =o*ever6 it a!!ears thatthe literal translation of the charge,sheet in 0u1arati *ouldmean that he *as ?an/ho* made to disa!!ear.

13


14/61

Page 14

(v) It also a!!ears from the charge,sheet that itidentifies the third !erson *ho *as ta2en to


15/61

Page 15

!ro!erl/6 !articularl/ the call data relating to three senior!olice officers either in relation to Sohrabuddins case or inPra1a!atis case. It also a!!ears from the charge,sheet as*ell as from the eight action ta2en re!orts that the motive6*hich is ver/ im!ortant in the investigation re!orts *as not

!ro!erl/ investigated into as to the reasons of their 2illing.The motive of cons!irac/ cannot be merel/ fame andname. $o 1ustification can be found for the InvestigatingHfficer s ;ohri *al2ing out of the investigation *ithres!ect to Tulsiram Pra1a!atis death *ithout eveninforming this Court.

9'. Accordingl/6 in the facts and circumstances even atthis stage the !olice authorities of the State are directed tohand over the records of the !resent case to the CBIAuthorities *ithin a fortnight from this date and thereafterthe CBI Authorities shall ta2e u! the investigation and

com!lete the same *ithin siE months from the date ofta2ing over the investigation from the State !oliceauthorities. The CBI Authorities shall investigate all as!ectsof the case relating to the 2illing of Sohrabuddin and his*ife 3ausarbi including the alleged !ossibilit/ of a largercons!irac/. The re!ort of the CBI Authorities shall be filedin this Court *hen this Court *ill !ass further necessar/orders in accordance *ith the said re!ort6 if necessar/. #eeE!ect that the Police Authorities of 0u1arat6 AndhraPradesh and a1asthan shall coo!erate *ith the CBIAuthorities in conducting the investigation !ro!erl/ and in

an a!!ro!riate manner.

") The observations6 findings and directions in

"u#a##uddin Shei$h (supra) clearl/ sho* that the

alleged 2illing of Tulsiram Pra1a!ati *as thus !erceived even

b/ this Court to be an act forming !art of the ver/ same

transaction and same cons!irac/ in *hich the offence of

2illing of Sohrabuddin and 3ausarbi too2 !lace. The CBI also6

u!on investigation held that ?strong sus!icion eE!ressed b/

15


16/61

Page 16

this Court in the above 1udgment *as true and filed charge

sheet-s.

') Pursuant to the decision in "u#a##uddin Shei$h

(supra) dated "'.".'"6 the CBI filed a fresh +I6 viD.6 first

+I. It is also clear that during the investigation6 the CBI

came to the conclusion that this first +I *as a !art of the

series of acts concerning *ith the alleged offence of

abduction and 2illing of t*o individuals6 viD.6 Sohrabuddin on

'4-':."".'4 and 3ausarbi on '."".'4 culminating *ith

the 2illing of one more !erson6 viD.6 Tulsiram Pra1a!ati as

!art of the ver/ same cons!irac/.

'") $o*6 let us discuss the charge sheet dated '.5.'"

filed b/ the CBI in the first +I. As rightl/ !ointed out b/ r.

ahesh ;ethmalani6 learned senior counsel for the !etitioner,

Amit Shah6 in this chargesheet itself6 the CBI categoricall/

mentioned that the 2illing of Tulsiram Pra1a!ati is also a !art

of the ver/ same cons!irac/ *hich is mentioned in the first

+I above. Though6 before us6 a different stand *as ta2en

b/ the CBI6 the follo*ing eEcer!ts of the charge sheet clearl/

sho* that CBI *as ver/ categorical that 2illing of Tulsiram

16


17/61

Page 17

Pra1a!ati is also a !art of the ver/ same cons!irac/6 *hich

are as under>,

?""@@Shri $a/muddin6 brother of Shri Sohrabuddin hadgone to see off Shri Sohrabuddin6 sister,in,la* Smt.3ausarbi and Tulsiram Pra1a!ati at Indore Bus Stand.

". Investigation further revealed that the Police Part/ alsofollo*ed the luEur/ bus. About "4 to ' 2ilometers fromthe hotel6 on the instructions of Shri a12umar Pandi/an (A,') their vehicles overtoo2 the luEur/ bus and sto!!ed thebus. T*o !olice !ersons entered into the bus and as2edthe driver to s*itch on the light. #hile the third !olice!erson *as having torch in his hand remained near thedoor of the bus. The !olice !ersons told there is !olicechec2ing. All the three !olice !ersonnel *ere in civil dress.The/ !ic2ed u! Tulsiram Pra1a!ati *ho *as sitting in thebus. After sometime6 the/ again came into bus and !ic2edu! Sohrabuddin. #hen Sohrabuddin *as made to getdo*n from the bus6 3ausarbi also got do*n@..

'. Investigation further disclosed that Shri Sohrabuddinand Tulsiram Pra1a!ati abducted b/ !olice !art/ *eremade to sit in the Jualis *hile 3ausarbi *as made to sit inone of the Tata Sumo vehicles along *ith Santram Sharma

(A,"")@..All of them reached Valsad *here at one bighotel6 both the Tata Sumo Vehicles *ere sto!!ed and the/too2 lunch. Tulsiram Pra1a!ati *as shifted to anothervehicle *hich *as brought b/ a1asthan Police !ersonnel.The/ too2 him straight to Gdai!ur *here he *as 2e!t inillegal custod/ for five da/s. Thereafter6 he *as sho*narrested b/ a team lead b/ Shri Bhan*ar Singh =ada6Ins!ector-S=H P.S. =athi!ole6 Gdai!ur a1asthan fromBhil*ara.

'. Investigation further disclosed that in the earl/ !art of

$ovember6 '46 Shri Tulsiram Pra1a!ati *as contacted b/accused Abha/ Chudasama (A,"4) and brought toAhmedabad *here he *as !roduced before accused


18/61

Page 18

$o !h/sical harm *ould be done to Sohrabuddin. =avinggot the assurance from accused ,

?Investigation has also revealed that after the 0u1aratPolice Hfficers had eliminated Shri Tulsiram Pra1a!ati on'9."'.': in a fa2e encounter6 Smt. 0eeta ;ohri6 the thenI0P !re!ared a note sheet on 4.".': mentioningtherein inter alia the !ermission to go to Gdai!ur tointerrogate the aforesaid t*o associates of SohrabuddinviD.6 S/lvester and Tulsiram Pra1a!ati6 of *hom6 shementioned that Tulsriram Pra1a!ati *as encountered b/ thePolice@.

The above eEtracts culled out from the chargesheet and

su!!lementar/ chargesheet filed in the first +I b/ the CBI

*ould clearl/ sho* that 2illing of Tulsiram Pra1a!ati *as a

fa2e encounter and *as !art of the same series of acts so

connected together that the/ form !art of the same

cons!irac/ as alleged in the first +I. In vie* of the same6

there cannot be a second +I dated '.%.'"" and fresh

18


19/61

Page 19

chargesheet dated %..'"' for 2illing of Tulsiram

Pra1a!ati.

') It is also relevant to !oint out that *hen #rit Petition

(Crl.) $o. ""4 of '5 *as !ending6 the CBI6 b/ *a/ of an

affidavit dated ".9.'"6 furnished the follo*ing

information>,

(i) Tulsiram Pra1a!atis 2illing is a !art of the sameseries of acts in *hich 2illing of Sohrabuddin and 3ausarbi

too2 !lace.(ii) All the three 2illings are !art of the same cons!irac/.(iii) Trial of all the three offences shall have to be onetrial under Section '' of the Code.(iv) CBI be given formal !ermission to investigateTulsiram Pra1a!ati 2illing as ?further investigation in thefirst +I filed b/ CBI *hich investigation *as going on.(v) If CBI is not formall/ given investigation of TulsiramPra1a!ati6 !rosecution *ould face 8uestions of ?issueesto!!el & ?es,1udicata.

In the said affidavit6 the CBI even !ra/ed for ?further

investigation in the first +I *hich becomes evident from

the !ra/er made b/ the CBI in the last !aragra!h of the

affidavit *hich reads as under>,

?"'. That on "'.9.'"6 the =onble Su!reme Court (r.;ustice Aftab Alam and r. ;ustice .. Fodha) has grantedthree more months to com!lete the investigation. =ence6it is !ra/ed that orders for transferring Tulsiram Pra1a!aticase to the CBI ma/ be issued for eE!editious com!letionof investigation.

19


20/61

Page 20

'%) As rightl/ !ointed out b/ r. ahesh ;ethmalani6 the

above !ra/er of the CBI ma2es it clear that the CBI had also

!ra/ed for entrustment of Tulsiram Pra1a!atis encounter ?to

com!lete the investigation for *hich three months time *as

granted in #.P. (Crl.) $o. : of '5 to com!lete the

investigation in the first +I. Hn reading the abovesaid

affidavit as a *hole and the !aragra!hs 8uoted above in

!articular6 it leaves no room for doubt that the CBI itself

!ra/ed for ?further investigation so as to enable it to

?com!lete the investigation in first +I filed b/ the CBI6 i.e.6

+I dated ".'.'" b/ investigating Tulsiram Pra1a!ati

encounter. In this regard6 the order of this Court dated

"'.9.'" relied u!on b/ the CBI is relevant and the same

is 8uoted hereunder>,

?O

?In !ursuance of the order !assed b/ this Court on ;anuar/"'6 '"6 the CBI has submitted a status re!ort. In thestatus re!ort6 it is stated that the/ have been carr/ing on

investigations as directed b/ this Court6 but on certainas!ects of the matter the investigation remain incom!lete.A !ra/er is6 therefore6 made to grant them siE monthsfurther time to com!lete the investigation. It is further!ra/ed that three other cases that *ere registered inconnection *ith the alleged esca!e of Tulsiram Pra1a!atifrom !olice escort and his death in a !olice encounter ma/also be transferred for investigation to the CBI because the

20


21/61

Page 21

death of Tulsiram Pra1a!ati in the alleged encounterformed an inse!arable !art of the investigation *hich isentrusted to the CBI b/ this Court.

Toda/6 r. ;ethmalani6 senior advocate6 a!!eared onbehalf of one of the accused,Amit Shah. r. ;ethmalani

strongl/ criticiDed the manner of investigation b/ the CBIand alluded to some larger !olitical cons!irac/. =esubmitted that he !ro!osed to ta2e ste!s ofrecall-modification of the order dated ;anuar/ "'6 '"!assed b/ this Court b/ *hich the investigation of the case*as ta2en a*a/ from the 0u1arat Police and *as handedover to the CBI.

Toda/6 *e can !roceed onl/ on the basis of the!revious order !assed on ;anuar/ "'6 '" b/ *hich theCBI *as directed to investigate all as!ects of the case6relating to the 2illing of Sohrabuddin and his *ife 3ausarbi

including the alleged !ossibilit/ of a larger cons!irac/. B/that order6 the CBI *as as2ed to com!lete the investigation*ithin siE months from the date it too2 over the case fromthe State !olice and to file its re!ort to this Court *hen thisCourt *ould !ass further necessar/ orders in accordance*ith the said re!ort6 if necessar/.

As on date6 the investigation ordered to be maderemains incom!lete. In continuation of the !revious order6therefore6 the time allo*ed to the CBI to com!lete theinvestigation is eEtended b/ three months from toda/6 atthe end of *hich the/ *ould file a status re!ort before this

Court.Put u! on recei!t of the status re!ort.

'4) It is clear that in both the status re!ort(s) as *ell as in

the affidavit filed in #.P. (Crl.) $o. ""4-'56 the CBI !ra/ed

for entrusting the investigation relating to Tulsiram Pra1a!ati

on the ground that his encounter *as a !art of the ver/

same offence in the first +I *hich CBI *as investigating. It

is not in dis!ute that this Court6 after entrusting the

21


22/61

Page 22

investigation to the CBI b/ order dated "'.".'" *as

monitoring the said investigation in #.P. (Crl.) $o. : of '5.

Kven in the said *rit !etition6 the CBI filed status re!ort(s)

contending that Tulsiram Pra1a!atis 2illing *as a !art of the

ver/ same cons!irac/ and series of the ver/ same

transactions in *hich Sohrabuddin and 3ausarbi *ere

abducted and 2illed. The follo*ing averments in the affidavit

dated ".9.'" in #.P. (Crl.) $o. ""4 of '5 made b/ the

CBI are relevant *hich are as under>,

?%5.


23/61

Page 23

!romised b/ accused Shri


24/61

Page 24

death for *hich the/ immediatel/ *anted action b/ thethen I0 of Police6 Gdai!ur through the !eo!lere!resentative. This is an additional corroboration thatTulsiram Pra1a!ati *as in the Police Custod/ 1ust !rior tothe encounter of Sohrabuddin. This seen in con1unction

*ith other evidence indicates that Tulsiram Pra1a!ati *asthe !erson *ho revealed the location of Sohrabuddin to theaccused !olice officers of a1asthan and 0u1arat.

44. The investigation has further disclosed that *hilelodged in Gdai!ur ;ail6 in addition to the above mentioned!ra/ers made b/ Tulsiram to the =uman ightsCommission6 different courts6 he eE!lained the true factbehind the fa2e encounter of Sohrabuddin to his 1ail inmatefriends. The !olice 2e!t the tele!hone number being usedb/ some of the criminals inside the 1ail and outside the 1ail

under interce!tion and allegedl/ had received theinformation that Tulsiram *as tr/ing to run a*a/ from thecustod/. Both accused Shri.


25/61

Page 25

from the custod/ on the night intervening ':-'5."'.':.$eEt da/6 he *as 2illed in an alleged encounter.

4:. The investigation disclosed that the Gdai!ur Policehad sent letter $o. ""' dated '5."'.': to SP

Banas2antha6 alleging that the call details of Tulsiram sho*that he is hiding some*here in Banas2antha. As !er thedocuments received b/ the CBI from the office of I06Gdai!ur6 this letter *as sent through faE at around ''hours on '5."'.':. As !er the tele!hone call detailsavailable6 the !hone *as not used after the evening of':."'.': so there *as no reason for Gdai!ur Police tohave information that Tulsiram *as hiding some*here inBanas2antha. This letter *as nothing but an attem!t to!rovide the Banas2antha !olice an o!!ortunit/ to stage,manage the encounter of Tulsiram Pra1a!ati in their

district. +urther6 the available call details sho* that on'5."'.': accused Shri


26/61

Page 26

:. The anal/sis of obile Call


27/61

Page 27

'5) r. ahesh ;ethamalani6 learned senior counsel for the

!etitioner,Amit Shah also brought to our notice that he *as

arrested in the first +I and chargesheet dated '.5.'"

and *as further interrogated even on the 8uestion of alleged

2illing of Tulsiram Pra1a!ati. It is also brought to our notice

that *hen the !etitioner,Amit Shah filed regular bail

a!!lication6 the CBI o!!osed the same contending that the

alleged 2illing of Tulsiram Pra1a!ati as a !art of the same

series of acts6 viD.6 2illing of Sohrabuddin and 3ausarbi. The

follo*ing ob1ections *ere ta2en b/ the CBI *hile considering

the bail a!!lication *hich are as under>,

?The a!!licant too2 several ste!s b/ s/stematicall/eliminating evidence of the murder of Sohrabuddin. Hne*itness after the other *ere 2illed either surre!titiousl/(3ausarbi) or another stage managed encounter (TulsiramPra1a!ati)9. Fearned senior counsel r. Tulsi submitted that thecase of the !rosecution is that the a!!licant is !art and!arcel of the larger cons!irac/ in the 2illing ofSohrabuddin6 his *ife and Tulsiram Pra1a!ati and also thecons!irac/ *ith regard to eEtortion of mone/.

All the above assertions b/ the CBI su!!ort the stand of the

!etitioner. It is also relevant to note the stand ta2en b/ the

CBI and reliance !laced on the same b/ this Court in the

order dated 9.%.'"" in #.P. (Crl.) $o. ""4 of '56 i.e.6

27


28/61

Page 28

Narmada Bai (supra). The relevant eEcer!ts are 8uoted

verbatim hereunder>,

?'(g) It is the further case of the !etitioner that thedeceased being a 2e/ e/e *itness to the murder ofSohrabuddin and his *ife 3ausarbi6 the team of r.


29/61


30/61

Page 30

and directions cannot lightl/ be ta2en note of and it is thedut/ of the CBI to go into all the details as directed b/ theCourt.') If *e anal/De the allegations of the State and otherres!ondents *ith reference to the materials !laced *ith

the stand ta2en b/ the CBI6 it *ould be difficult to acce!t itin its entiret/. It is the definite case of the CBI that theabduction of Sohrabuddin and 3ausarbi and theirsubse8uent murders as *ell as the murder of TulsiramPra1a!ati are one series of acts6 so connected together asto form the same transaction under Section '' of theCr.P.C. As rightl/ !ointed out b/ the CBI6 if t*o !arts of thesame transaction are investigated and !rosecuted b/different agencies6 it ma/ cause failure of 1ustice not onl/in one case but in other trial as *ell. It is further seen thatthere is substantial material alread/ on record *hich

ma2es it !robable that the !rime motive of elimination ofTulsiram Pra1a!ati *as that he *as a *itness to abductionof Sohrabuddin and 3ausarbi.5)@..In vie* of various circumstances highlighted and inthe light of the involvement of !olice officials of the Stateof 0u1arat and !olice officers of t*o other States6 i.e.Andhra Pradesh and a1asthan6 it *ould not be desirable toallo* the 0u1arat State Police to continue *ith theinvestigation6 accordingl/6 to meet the ends of 1ustice andin the !ublic interest6 *e feel that the CBI should bedirected to ta2e the investigation.

'9) The findings rendered b/ us in Narmada Bai (supra)

clearl/ sho* the acce!tance of the contentions raised b/ the

CBI that 2illing of t*o individuals and 2illing of third !erson6

viD.6 Tulsiram Pra1a!ati *ere !art of the ver/ same

cons!irac/ and in the same series of acts so connected

together that the/ *ill have to be tried in one trial under

Section '' of the Code.

30


31/61

Page 31

') After the investigation of the second +I6 the CBI filed

chargesheet dated %..'"' *herein6 among others6

!etitioner,Amit Shah *as also arra/ed as one of the accused.

B/ !ointing out various averments-assertions in the

chargesheet dated %..'"'6 learned senior counsel for

the !etitioner !ointed out that the CBI has merel/ conducted

further investigation and it should be considered

?su!!lementar/ chargesheet in the first +I. The follo*ing

stand of the CBI in the chargesheet dated %..'"' are

also relevant *hich are as under>,

?'@.The investigation established that it *as infurtherance of a criminal cons!irac/ b/ the !rinci!alaccused !ersons that Sohrabuddin *as abducted and thenmurdered b/ sho*ing it off as an encounter and further for

the !ur!ose of screening themselves from the legalconse8uences of their crime6 the accused caused thedisa!!earance of material *itnesses to the !ivotal fact ofabduction of Sohrabuddin b/ murdering them6 first his *ife63auserbi and then Tulsiram Pra1a!ati *ho *asaccom!an/ing Sohrabuddin and his *ife 3ausarbi at thetime the/ *ere abducted6 and6 *ho had in fact facilitatedhis abduction at the behest of accused


32/61

Page 32

:.%@.In the meantime6 in accordance *ith his clandestineagreement *ith 0u1arat Police6 Tulsiram Pra1a!ati informedthem in advance about the !lan of Sohrabuddin to travel toSangli from =/derabad.

:.9 In !ursuance of the criminal cons!irac/ to screenthemselves from the legal conse8uences of the crime6 theaccused acted in concert *ith each other to 2ee! TulsiramPra1a!ati6 a significant material e/e *itness to theabduction of Sohrabuddin and 3ausarbi b/ the accused!olicemen of 0u1arat !olice under their continuing controland be/ond the reach of others. Accordingl/6


33/61

Page 33

:.4"@.This establishes the fact that the countr/ made*ea!on *as !lanted to cover u! the murder of TulsiramPra1a!ati in !ursuance of a criminal cons!irac/ s!anningmore than a /ear and to sho* it as the result of ashootout-an encounter.

:.4%@..for !artici!ating in the criminal cons!irac/ asaforesaid and ta2ing it to*ards its culmination !oint b/murdering Tulsiram Pra1a!ati@..

:.:'@..b/ so doing had intentionall/ !rovided the re8uisitetime needed b/ the co,accused to ta2e the necessar/efforts to cause disa!!earance of human *itness TulsiramPra1a!ati to their crime of abduction of Sohrabuddin andhis *ife !recedent to their murders b/ murdering him as*ell and thereb/ had facilitated the criminal cons!irac/

to*ards its culmination !oint@..

:.:@..Besides this6 accused 0eetha ;ohri (A,"9)6 infurtherance of a criminal cons!irac/ as aforesaid made allattem!ts to delin2 Tulsiram Pra1a!ati case from theSohrabuddin fa2e encounter case to establish that the third!erson *ho traveled *ith Sohrabuddin and 3ausarbi in thebus in the night of ''-'."".'4 and *as abducted *assomebod/ else and not Tulsiram Pra1a!ati himself. She!ro1ected that the third !erson *ho *as abducted along*ith Sohrabuddin and his *ife 3auserbi *as one

3alimuddin of =/derabad in s!ite of the fact that she had2no*ledge that the third !erson *as Tulsiram Pra1a!ati asmade 2no* to her b/ her Investigating Hfficer V.F.Solan2i@..

) The above details mentioned in the chargesheet dated

%..'"' clearl/ sho* that *hat the CBI has conducted is

mere further investigation and the alleged 2illing of

Tulsiram Pra1a!ati *as in continuance of and an inse!arable

!art of the cons!irac/ *hich commenced in $ovember6 '4

b/ abduction of Sohrabuddin6 3ausarbi and Tulsiram

33


34/61

Page 34

Pra1a!ati and *hich culminated into the final stage of alleged

2illing of Tulsiram Pra1a!ati *ho *as 2e!t under the control

of accused !olice officers since he *as a material e/e,

*itness li2e 3ausarbi. To !ut it straight6 a!art from the

consistent stand of the CBI6 the chargesheet dated

%..'"' itself is conclusive to sho* that the said

chargesheet6 in la* and on facts6 deserves to be treated as

su!!lementar/ chargesheet in the first +I.

L, #/!# # !* &$##$$,$!-$&&$##$$,$! *-#/*+ FIR

") $o*6 let us consider the legal as!ects raised b/ the

!etitioner,Amit Shah as *ell as the CBI. The factual details

*hich *e have discussed in the earlier !aragra!hs sho* that

right from the ince!tion of entrustment of investigation to

the CBI b/ order dated "'.".'" till filing of the charge

sheet dated %..'"'6 this Court has also treated the

alleged fa2e encounter of Tulsiram Pra1a!ati to be an

outcome of one single cons!irac/ alleged to have been

hatched in $ovember6 '4 *hich ultimatel/ culminated in

':. In such circumstances6 the filing of the second +I

34


35/61

Page 35

and a fresh charge sheet for the same is contrar/ to the

!rovisions of the Code suggesting that the !etitioner *as not

being investigated6 !rosecuted and tried in accordance *ith

la* .

') This Court has consistentl/ laid do*n the la* on the

issue inter!reting the Code6 that a second +I in res!ect of

an offence or different offences committed in the course of

the same transaction is not onl/ im!ermissible but it violates

Article '" of the Constitution. In T.T. Anthon(supra), this

Court has categoricall/ held that registration of second +I

(*hich is not a cross case) is violative of Article '" of the

Constitution. The follo*ing conclusion in !aragra!h $os. "6

' and '5 of that 1udgment are relevant *hich read as

under>

?". The scheme of CrPC is that an officer in charge of a!olice station has to commence investigation as !rovidedin Section "4: or "45 CrPC on the basis of entr/ of the first

information re!ort6 on coming to 2no* of the commissionof a cogniDable offence. Hn com!letion of investigation andon the basis of the evidence collected6 he has to form ano!inion under Section ": or "5 CrPC6 as the case ma/be6 and for*ard his re!ort to the agistrate concernedunder Section "5(') CrPC. =o*ever6 even after filing sucha re!ort6 if he comes into !ossession of further informationor material6 he need not register a fresh +IN he is

35


36/61

Page 36

em!o*ered to ma2e further investigation6 normall/ *iththe leave of the court6 and *here during furtherinvestigation he collects further evidence6 oral ordocumentar/6 he is obliged to for*ard the same *ith oneor more further re!ortsN this is the im!ort of sub,section (9)

of Section "5 CrPC.

'. +rom the above discussion it follo*s that under thescheme of the !rovisions of Sections "4%6 "446 "4:6 "456":'6 ":6 "5 and "5 CrPC onl/ the earliest or the firstinformation in regard to the commission of a cogniDableoffence satisfies the re8uirements of Section "4% CrPC.Thus there can be no second +I and conse8uentl/ therecan be no fresh investigation on recei!t of ever/subse8uent information in res!ect of the same cogniDableoffence or the same occurrence or incident giving rise to

one or more cogniDable offences. Hn recei!t of informationabout a cogniDable offence or an incident giving rise to acogniDable offence or offences and on entering the +I inthe station house diar/6 the officer in charge of a !olicestation has to investigate not merel/ the cogniDableoffence re!orted in the +I but also other connectedoffences found to have been committed in the course ofthe same transaction or the same occurrence and file oneor more re!orts as !rovided in Section "5 CrPC.

'5. A 1ust balance bet*een the fundamental rights of thecitiDens under Articles " and '" of the Constitution andthe eE!ansive !o*er of the !olice to investigate acogniDable offence has to be struc2 b/ the court. Therecannot be an/ controvers/ that sub,section (9) of Section"5 CrPC em!o*ers the !olice to ma2e furtherinvestigation6 obtain further evidence (both oral anddocumentar/) and for*ard a further re!ort or re!orts tothe agistrate. In Narang caseit *as6 ho*ever6 observedthat it *ould be a!!ro!riate to conduct furtherinvestigation *ith the !ermission of the court. =o*ever6

the s*ee!ing !o*er of investigation does not *arrantsub1ecting a citiDen each time to fresh investigation b/ the!olice in res!ect of the same incident6 giving rise to one ormore cogniDable offences6 conse8uent u!on filing ofsuccessive +Is *hether before or after filing the finalre!ort under Section "5(') CrPC. It *ould clearl/ bebe/ond the !urvie* of Sections "4% and "4: CrPC6 na/6 acase of abuse of the statutor/ !o*er of investigation in a

36


37/61

Page 37

given case. In our vie* a case of fresh investigation basedon the second or successive +Is6 not being a counter,case6 filed in connection *ith the same or connectedcogniDable offence alleged to have been committed in thecourse of the same transaction and in res!ect of *hich

!ursuant to the first +I either investigation is under *a/or final re!ort under Section "5(') has been for*arded tothe agistrate6 ma/ be a fit case for eEercise of !o*erunder Section %9' CrPC or under Articles '':-''5 of theConstitution.

The above referred declaration of la* b/ this Court has

never been diluted in an/ subse8uent 1udicial

!ronouncements even *hile carving out eEce!tions.

) r. a*al6 learned AS06 b/ referring T.T. Anthon

(supra)submitted that the said !rinci!les are not a!!licable

and relevant to the facts and circumstances of this case as

the said 1udgment laid do*n the ratio that there cannot be

t*o +Is relating to the same offence or occurrence.

Fearned AS0 further !ointed out that in the !resent case6

there are t*o distinct incidents-occurrences6 inasmuch as

one being the cons!irac/ relating to the murder of

Sohrabuddin *ith the hel! of Tulsiram Pra1a!ati and the

other being the cons!irac/ to murder Tulsiram Pra1a!ati , a

!otential *itness to the earlier cons!irac/ to murder

37


38/61

Page 38

Sohrabuddin. #e are unable to acce!t the claim of the

learned AS0. As a matter of fact6 the aforesaid !ro!osition

of la* ma2ing registration of fresh +I im!ermissible and

violative of Article '" of the Constitution is reiterated6 re,

affirmed in the follo*ing subse8uent decisions of this Court>

". %p$ar Sinhvs. 'ed ra$ash('%) " SCC ''

'. Ba#u#hai vs. State of Gujarat & Ors. ('") "'

SCC '4%

. Chirra Shirajvs. State of A..AI '"" SC :%

%. C. Muniappan vs. State of Tamil Nadu ('")

SCC 4:5.

In C. Muniappan (su!ra)6 this Court eE!lained

?conse8uence test6 i.e.6 if an offence forming !art of the

second +I arises as a conse8uence of the offence alleged

in the first +I then offences covered b/ both the +Is are

the same and6 accordingl/6 the second +I *ill be

im!ermissible in la*. In other *ords6 the offences

covered in both the +Is shall have to be treated as a !art

of the first +I. In the case on hand6 in vie* of the

!rinci!les laid do*n in the above referred decisions6 in

38


39/61

Page 39

!articular6 C. Muniappan (supra) as *ell as in Chirra

Shiraj (su!ra)6 a!!l/ *ith full force since according to

the CBI itself it is the case *here>,

(i) The larger cons!irac/ allegedl/ commenced in

$ovember6 '4 and culminated into the murder

of Tulsiram Pra1a!ati in


40/61

Page 40

lodged did not mean that the/ could not be clubbed together

and one chargesheet could not be filed OSee T.T. Anthon

(su!ra).

%) In vie* of the consistent stand ta2en b/ the CBI6 at this

1uncture6 CBI ma/ not be !ermitted to ado!t a contradictor/

stand.

4) Fearned counsel for the !etitioner has !laced reliance

on the follo*ing decisions of this Court *hich eE!lained

?same transaction>

(i) Ba#ulalvs. *mperor 6 AI "9 PC "

(ii) S. S+amirathnam vs. State of Madras, AI "45 SC

%

(iii) State of A..vs. !andimalla Su##aiah& Anr.6 AI

":" SC "'%"

(iv) State of A.. s. Cheemalapati Ganes+ara "ao &

Anr., AI ": SC "94

:) In Ba#ulal (supra)6 the Priv/ Council has held that if

several !ersons cons!ire to commit offences6 and commit

overt acts in !ursuance of the cons!irac/ (a circumstance

*hich ma2es the act of one the act of each and all the

40


41/61

Page 41

cons!irators)6 these acts are committed in the course of the

same transaction6 *hich embraces the cons!irac/ and the

acts done under it. The common concert and agreement

*hich constitute the cons!irac/6 serve to unif/ the acts done

in !ursuance of it.

5) In S+amirathnam (supra)6 the follo*ing conclusion in

!ara 5 is relevant>

?5. Hn behalf of the a!!ellant Abu Buc2er it *ascontended that there has been mis1oinder of charges onthe ground that several cons!iracies6 distinct from eachother6 had been lum!ed together and tried at one trial.The Advocate for S*amirathnam6 ho*ever6 did not !utfor*ard this submission. #e have eEamined the chargecarefull/ and find no ground for acce!ting the contentionraised. The charge as framed6 discloses one singlecons!irac/6 although s!read over several /ears. There *asonl/ one ob1ect of the cons!irac/ and that *as to cheatmembers of the !ublic. The fact that in the course of /earsothers 1oined the cons!irac/ or that several incidents ofcheating too2 !lace in !ursuance of the cons!irac/ did notchange the cons!irac/ and did not s!lit u! a singlecons!irac/ into several cons!iracies. It *as suggested thatalthough the modus o!erandi ma/ have been the same6the several instances of cheating *ere not !art of thesame transaction. eliance *as !laced on the cast ofShar!ur1i Sorab1i v. Km!eror6 AI ": Bom "4% (A) and onthe cast of Choragudi Ven2atadari6 In re. IF ad 4'(B). These cases are not in !oint. In the Bomba/ case6 no

charge of cons!irac/ had been framed and the decision inthe adras case *as given before Section "',B *asintroduced into the Indian Penal Code. In the !resent case6the instances of cheating *ere in !ursuance of thecons!irac/ and *ere therefore !arts of the sametransaction.

41


42/61

Page 42

9) In !andimalla Su##aiah (supra)6 this Court held

*here the alleged offence have been committed in the

course of the same transaction6 the limitation !laced b/

Section '%(") cannot o!erate.

) In Cheemalapati Ganes+ara "ao (supra)6 *hile

considering the sco!e of Section ' of the old Code

(Section '' in the ne* Code)6 this Court held>

627. The decision of the Allahabad =igh Court in T.B.Mukherji casedirectl/ in !oint and is clearl/ to the effectthat the different clauses of Section ' are mutuall/eEclusive in the sense that it is not !ossible to combine the!rovisions of t*o or more clauses in an/ one case and totr/ 1ointl/ several !ersons !artl/ b/ a!!l/ing the !rovisionsof one clause and !artl/ b/ a!!l/ing those of another orother clauses. A large number of decisions of the different

=igh Courts and one of the Priv/ Council have beenconsidered in this case. $o doubt6 as has been rightl/!ointed out in this case6 se!arate trial is the normal ruleand 1oint trial is an eEce!tion. But *hile this !rinci!le iseas/ to a!!reciate and follo* *here one !erson alone isthe accused and the interaction or intervention of the actsof more !ersons than one does not come in6 it *ould *herethe same act is committed b/ several !ersons6 be not onl/inconvenient but in1udicious to tr/ all the several !arsonsse!aratel/. This *ould lead to unnecessar/ multi!licit/ oftrials involving avoidable inconvenience to the *itnesses

and avoidable eE!enditure of !ublic time and mone/. $ocorres!onding advantage can be gained b/ the accused!ersons b/ follo*ing the !rocedure of se!arte trials.#here6 ho*ever6 several offences are alleged to have beencommitted b/ several accused !ersons it ma/ be morereasonable to follo* the normal rule of se!arate trials. Buthere6 again6 if those offences are alleged not to be *holl/unconnected but as forming !art of the same transaction

42


43/61

Page 43

the onl/ consideration that *ill 1ustif/ se!arate trials *ouldbe the embarrassment or difficult/ caused to the accused!ersons in defending themselves. #e entirel/ agree *iththe =igh Court that 1oint trial should be founded on some?!rinci!le. @.

%) Fearned AS0 !laced reliance on the follo*ing decisions>

(i) Anju Chaudharvs. State of %.. & Anr.6

'"'("') Scale :"

(ii) Ba#u#haivs. State of Gujarat('") "' SCC '4%

(iii) Surender !aushi$ & Ors.vs. State of %.. &

Ors.6 ;T '" () SC %5'

(iv) Nirmal Sinh !ahlonvs. State of unja#(') "

SCC %%"

(v) "am al Naranvs. State (-elhi Admn.), ("5)

' SCC ''

(vi) %p$ar Sinhvs. 'ed ra$ash & Ors.('%) "

SCC ''

(vii) !ari Choudharvs. Mst. Sita -ei & Ors.('')

" SCC 5"%.

%") InAnju Chaudhar(supra)this Court *as concerned

*ith a case in *hich the second +I *as not connected *ith

43


44/61

Page 44

the offence alleged in the first +I. After carefull/ anal/Ding

the same6 *e are of the vie* that it has no relevance to the

facts of the !resent case.

%') In the case of Ba#u#hai(su!ra)6 the ver/ same Bench

considered the !ermissibilit/ of more than one +I and the

test of sameness. After eE!laining +I under Section "4% of

the Code6 commencement of the investigation6 formation of

o!inion under Sections ": or "5 of the Code6 !olice re!ort

under Section "5 of the Code and statements under Section

":' of the Code6 this Court6 has held that the Court has to

eEamine the facts and circumstances giving rise to both the

+Is and the test of sameness is to a!!lied to find out

*hether both the +Is relate to the same incident in res!ect

of the same occurrence or are in regard to the incidents

having t*o or more !arts of the same transaction. This

Court further held that if the ans*er is in affirmative6 the

second +I is liable to be 8uashed. It *as further held that in

case the contrar/ is !roved6 *here the version in the second

+I is different and is in res!ect of the t*o different

incidents-crimes6 the second +I is !ermissible. This Court

44


45/61

Page 45

further eE!lained that in case in res!ect of the same incident

the accused in the first +I comes for*ard *ith a different

version or counterclaim6 investigation on both the +Is has

to be conducted. It is clear from the decision that if t*o +Is

!ertain to t*o different incidents-crimes6 second +I is

!ermissible. In the light of the factual !osition in the case on

hand6 the ratio in that decision is not hel!ful to the case of

the CBI.

%) The CBI has also !laced reliance on a recent decision of

this Court in Surender !aushi$(supra). A careful !erusal

of the facts *hich arose in the said case *ould disclose that

three +Is *hich formed the sub1ect matter of the said case

*ere registered b/ three different com!lainants. T*o of the

+Is consisted of cross cases inasmuch as the com!lainant

of the first +I *as accused in the other *hile the accused in

the first +I *as the com!lainant in the second +I. The

third +I *as filed b/ a third !erson citing both the

com!lainants of first t*o +Is as accused !ersons. In vie* of

the above !eculiar facts situation arising in the said case

that the second and third +Is *ere not 8uashed b/ the =igh

45


46/61

Page 46

Court6 *hich decision *as u!held b/ this Court6 *e are

satisfied that the said decision has no relevance to the facts

of the !resent case.

%%) In the case of Nirmal Sinh !ahlon(su!ra)6 this Court

has carved out an eEce!tion for filing a second +I. As !er

the eEce!tion carved out in the said case6 the second +I lies

in a case *here the first +I does not contain an/ allegations

of criminal cons!irac/. Hn the other hand6 in the case on

hand6 the first +I itself discloses an offence of alleged

criminal cons!irac/ and it *as this cons!irac/ *hich the CBI

*as directed to unearth in the 1udgment dated "'.".'"

based on *hich the CBI filed its first +I6 hence6 the CBI

cannot !lace reliance on this 1udgment to 1ustif/ the filing of

the second +I and a fresh charge sheet.

%4) "am al Naran (supra)*as cited to be an authorit/

carving out an eEce!tion to the general rule that there

cannot be a second +I in res!ect of the same offence. This

Court6 in the said decision6 held that a second +I *ould lie

in an event *hen !ursuant to the investigation in the first

+I6 a larger cons!irac/ is disclosed6 *hich *as not !art of

46


47/61

Page 47

the first +I. In the case on hand6 *hile entrusting the

investigation of the case relating to the 2illing of

Sohrabuddin and 3ausarbi to the CBI6 this Court6 b/ order

dated "'.".'"6 eE!ressed a sus!icion that Tulsiram

Pra1a!ati could have been 2illed because he *as an e/e

*itness to the 2illings of Sohrabuddin and 3ausarbi.

%:) The CBI also filed an +I on ".'.'" based u!on the

aforesaid 1udgment dated "'.".'" and conducted the

investigation reaching to a conclusion that cons!irac/ to 2ill

Sohrabuddin and 3ausarbi and cons!irac/ to 2ill Tulsiram

Pra1a!ati *ere !art of the same transaction inasmuch as

both these cons!iracies *ere entered into from the ver/

outset in $ovember6 '4. Based u!on its investigation6 the

CBI filed a status re!ort (s) before this Court and an affidavit

in #rit Petition (Crl.) $o. ""4 of '5 bringing to the notice

of this Court that 2illing of Tulsiram Pra1a!ati *as also a !art

of the same transaction and ver/ same cons!irac/ in *hich

2illings of Sohrabuddin and 3ausarbi too2 !lace and unless

the CBI is entrusted *ith the investigation of Tulsiram case6

it *ill not be able to unearth the larger cons!irac/ covered in

47


48/61

Page 48

the first +I. The fact that even as !er the CBI6 the sco!e of

cons!irac/ included alleged 2illing of Sohrabuddin and

3ausarbi and alleged offence of 2illing of Tulsiram Pra1a!ati

and the same is une8uivocall/ established b/ the order

!assed b/ this Court on "'.9.'" in #rit Petition (Crl.) $o.

: of '5 *hich is fortified b/ the status re!ort dated

""."".'"" filed b/ the CBI has alread/ been eEtracted in

!aragra!hs su!ra.

%5) In the light of the factual details6 since the entire larger

cons!irac/ is covered in the first +I dated ".'.'" and

in the investigation of the said +I6 the CBI6 after

investigating Tulsiram Pra1a!atis encounter recorded a

finding in su!!lementar/ charge sheet dated ''.".'"

filed in the 2illings of Sohrabuddin and 3ausarbi case that

the said encounter *as a fa2e one6 *e are satisfied that the

decision in "amlal Naran (supra)*ould not a!!l/ to the

facts of the case on hand. Kven other*ise6 as !ointed out b/

learned senior counsel for the !etitioner6 in "amlal Naran

(supra)6 the chargesheet filed !ursuant to the first +I *as

48


49/61

Page 49

*ithdra*n *hich *as a fact *hich *eighed *ith this Court

*hile delivering the 1udgment in the second case.

%9) %p$ar Sinh (supra) also carves out a second

eEce!tion to the rule !rohibiting lodging of second +I for

the same offence or different offences committed in the

course of the transaction disclosed in the first +I. The onl/

eEce!tion to the la* declared in T.T. Anthon (supra),

*hich is carved out in %p$ar Sinh (supra)is to the effect

that *hen the second +I consists of alleged offences *hich

are in the nature of the cross case-cross com!laint or a

counter com!laint6 such cross com!laint *ould not be

!ermitted as second +I. In the case on hand6 it is not the

case of the CBI that the +I in Tulsiram Pra1a!atis case is a

cross +I or a counter com!laint to the +I filed in

Sohrabuddin and 3ausarbis case being +I dated

".'.'".

%) The ratio laid do*n in !ari Choudhars /ase(su!ra)

is heavil/ relied on b/ learned AS0 a!!earing for the CBI. In

that decision6 it *as held that *hen there are t*o rival

versions in res!ect of the same e!isode6 the/ *ould normall/

49


50/61

Page 50

ta2e the sha!e of t*o different +Is and investigation can be

carried on under both of them b/ the same investigating

agenc/. #hile there is no 8uarrel as to the above

!ro!osition6 after carefull/ considering the factual !osition6

*e are of the vie* that the said decision is not hel!ful to the

case on hand.

M$+!$+$,$! *- 8$! !$!$*+ + A!$/, 32

4) egarding the maintainabilit/6 namel/6 filing a *rit

!etition under Article ' of the Constitution of India6 learned

AS0 submitted that it is onl/ on com!lete eEamination and

a!!reciation of facts6 materials and evidence that it can be

decided as to *hether these distinct cons!iracies form !art

of the same transaction in vie* of the la* laid do*n b/ this

Court. =e further !ointed out that the CBI *hich is the

investigating agenc/6 after a full fledged investigation6 came

to a conclusion that the cons!irac/ to eliminate Tulsiram

Pra1a!ati *as a distinct and se!arate offence6 accordingl/6

such dis!uted 8uestions of fact are not and ought not to be

decided in a *rit !etition under Article '. =e also !ointed

out that a!art from the fact that there are sufficient

50


51/61

Page 51

remedies to raise such a !lea under the Code before a court

of com!etent 1urisdiction6 such dis!uted 8uestions of fact

can onl/ be ad1udicated after carefull/ eEamining and

a!!reciating the evidence led in. It is also !ointed out that

there is no 8uestion of an/ !re1udice suffered on account of

!ra/er of the !etitioner since if the offences are distinct and

se!arate *hich is so emerging from the !resent case6 there

can neither be 1oint trial nor could the charge sheet filed in

the !resent case be treated as su!!lementar/ charge sheet.

As a concluding argument6 r. a*al6 learned AS0

submitted that this Court in eEercise of its 1urisdiction under

Article ' ma/ not li2e to ad1udicate such dis!uted 8uestions

of fact *hich re8uire evidence to be led and its a!!reciation.

4") As against this6 r. ahesh ;ethmalani6 learned senior

counsel for the !etitioner submitted that the CBI is not faced

*ith an/ !re1udice *hich is to be caused to it6 if the relief as

!ra/ed for b/ the !etitioner is granted. Admittedl/6 the

!etitioner is not !ra/ing for 8uashing of the charge sheet

dated %..'"'.


52/61

Page 52

a!!earing for the CBI as to *hat !re1udice *ould be caused

to the CBI if instead of treating the charge sheet dated

%..'"' to be fresh and inde!endent charge sheet6 the

same *ill be treated as a su!!lementar/ charge sheet in the

first charge sheet6 there *as no definite ans*er as to *hat

!re1udice *ould be caused to the CBI. +or the sa2e of

re!etition6 it is relevant to mention that in our order dated

9.%.'"" in Narmada Bai (supra),*hile dis!osing of the

said *rit !etition6 this Court directed the CBI to ta2e u! the

investigation as !ra/ed acce!ting their contention that

2illing of Tulsiram Pra1a!ati is a !art of the same series of

acts in *hich Sohrabuddin and 3ausarbi *ere 2illed and6

therefore6 Tulsiram Pra1a!ati encounter should also be

investigated b/ the CBI. Acce!ting the above assertion of

the CBI6 this Court directed to com!lete the investigation

*ithin siE months.

S&&

4') a) This Court acce!ting the !lea of the CBI in

Narmada Bai (supra) that 2illing of Tulsiram Pra1a!ati is

52


53/61

Page 53

!art of the same series of cogniDable offence forming !art of

the first +I directed the CBI to ?ta2e over the investigation

and did not grant the relief !ra/ed for i.e.6 registration of a

fresh +I. Accordingl/6 filing of a fresh +I b/ the CBI is

contrar/ to various decisions of this Court.

b) The various !rovisions of the Code of Criminal

Procedure clearl/ sho* that an officer,in,charge of a !olice

station has to commence investigation as !rovided in

Section "4: or "45 of the Code on the basis of entr/ of the

+irst Information e!ort6 on coming to 2no* of the

commission of cogniDable offence. Hn com!letion of

investigation and on the basis of evidence collected6

Investigating Hfficer has to form an o!inion under Section

": or "5 of the Code and for*ard his re!ort to the

concerned agistrate under Section "5(') of the Code.

c) Kven after filing of such a re!ort6 if he comes into

!ossession of further information or material6 there is no

need to register a fresh +I6 he is em!o*ered to ma2e

further investigation normall/ *ith the leave of the Court

and *here during further investigation6 he collects further

53


54/61

Page 54

evidence6 oral or documentar/6 he is obliged to for*ard the

same *ith one or more further re!orts *hich is evident from

sub,section (9) of Section "5 of the Code. Gnder the

scheme of the !rovisions of Sections "4%6 "446 "4:6 "456

":'6 ":6 "5 and "5 of the Code6 onl/ the earliest or the

first information in regard to the commission of a cogniDable

offence satisfies the re8uirements of Section "4% of the

Code. Thus6 there can be no second +I and6 conse8uentl/6

there can be no fresh investigation on recei!t of ever/

subse8uent information in res!ect of the same cogniDable

offence or the same occurrence or incident giving rise to one

or more cogniDable offences.

d) +urther6 on recei!t of information about a cogniDable

offence or an incident giving rise to a cogniDable offence or

offences and on entering +I in the Station =ouse


55/61

Page 55

the Code. Sub,section (9) of Section "5 of the Code

em!o*ers the !olice to ma2e further investigation6 obtain

further evidence (both oral and documentar/) and for*ard a

further re!ort (s) to the agistrate. A case of fresh

investigation based on the second or successive +Is not

being a counter case6 filed in connection *ith the same or

connected cogniDable offence alleged to have been

committed in the course of the same transaction and in

res!ect of *hich !ursuant to the first +I either investigation

is under*a/ or final re!ort under Section "5(') has been

for*arded to the agistrate6 is liable to be interfered *ith b/

the =igh Court b/ eEercise of !o*er under Section %9' of the

Code or under Articles '':-''5 of the Constitution.

e) +irst Information e!ort is a re!ort *hich gives first

information *ith regard to an/ offence. There cannot be

second +I in res!ect of the same offence-event because

*henever an/ further information is received b/ the

investigating agenc/6 it is al*a/s in furtherance of the first

+I.

55


56/61

Page 56

f) In the case on hand6 as eE!lained in the earlier !aras6 in

our o!inion6 the second +I *as nothing but a conse8uence

of the event *hich had ta2en !lace on '4-':."".'4. #e

have alread/ concluded that this Court having re!osed faith

in the CBI acce!ted their contention that Tulsiram Pra1a!ati

encounter is a !art of the same chain of events in *hich

Sohrabuddin and 3ausarbi *ere 2illed and directed the CBI

to ?ta2e u! the investigation.

g) +or vivid understanding6 let us consider a situation in

*hich r. A having 2illed B *ith the aid of C6 informs the

!olice that un2no*n !ersons 2illed B.


57/61

Page 57

sheet under section "5(9) of the Code *ill serve the

!ur!ose.

h) Fi2e*ise6 in the case on hand6 initiall/ the CBI too2 a

stand that the third !erson accom!an/ing Sohrabbuddin and

3ausarbi *as 3alimuddin. =o*ever6 *ith the aid of further

investigation6 it unveiled that the third !erson *as Tulsiram

Pra1a!ati. Therefore6 onl/ as a result of further investigation6

the CBI has gathered the information that the third !erson

*as Tulsiram Pra1a!ati. Thus a second +I in the given facts

and circumstances is un*arrantedN instead filing of a

su!!lementar/ charge sheet in this regard *ill suffice the

issue.

i) Administering criminal 1ustice is a t*o,end !rocess6

*here guarding the ensured rights of the accused under

Constitution is as im!erative as ensuring 1ustice to the

victim. It is definitel/ a daunting tas2 but e8uall/ a

com!elling res!onsibilit/ vested on the court of la* to

!rotect and shield the rights of both. Thus6 a 1ust balance

bet*een the fundamental rights of the accused guaranteed

57


58/61

Page 58

under the Constitution and the eE!ansive !o*er of the !olice

to investigate a cogniDable offence has to be struc2 b/ the

court. Accordingl/6 the s*ee!ing !o*er of investigation does

not *arrant sub1ecting a citiDen each time to fresh

investigation b/ the !olice in res!ect of the same incident6

giving rise to one or more cogniDable offences. As a

conse8uence6 in our vie* this is a fit case for 8uashing the

second +.I. to meet the ends of 1ustice.

1) The investigating officers are the 2ing!ins in the

criminal 1ustice s/stem. Their reliable investigation is the

leading ste! to*ards affirming com!lete 1ustice to the

victims of the case. =ence the/ are besto*ed *ith dual

duties i.e. to investigate the matter eEhaustivel/ and

subse8uentl/ collect reliable evidences to establish the

same.

C*+/,#$*+

4) In the light of the s!ecific stand ta2en b/ the CBI before

this Court in the earlier !roceedings b/ *a/ of assertion in

the form of counter affidavit6 status re!orts6 etc. *e are of

58


59/61

Page 59

the vie* that filing of the second +I and fresh charge sheet

is violative of fundamental rights under Article "%6 ' and '"

of the Constitution since the same relate to alleged offence

in res!ect of *hich an +I had alread/ been filed and the

court has ta2en cogniDance. This Court categoricall/

acce!ted the CBIs !lea that 2illing of Tulsiram Pra1a!ati is a

!art of the same series of cogniDable offence forming !art of

the first +I and in s!ite of the fact that this Court directed

the CBI to ?ta2e over the investigation and did not grant the

relief as !ra/ed6 namel/6 registration of fresh +I6 the

!resent action of CBI filing fresh +I is contrar/ to various

1udicial !ronouncements *hich is demonstrated in the earlier

!art of our 1udgment.

4%) In vie* of the above discussion and conclusion6 the

second +I dated '.%.'"" being C $o.

(S)-'""-umbai filed b/ the CBI is contrar/ to the

directions issued in 1udgment and order dated 9.%.'"" b/

this Court in #rit Petition (Criminal) $o. ""4 of ' and

accordingl/ the same is 8uashed. As a conse8uence6 the

59


60/61

Page 60

charge sheet filed on %..'"'6 in !ursuance of the

second +I6 be treated as a su!!lementar/ charge sheet in

the first +I. It is made clear that *e have not gone into the

merits of the claim of both the !arties and it is for the trial

Court to decide the same in accordance *ith la*.

Conse8uentl/6 #rit Petition (Criminal) $o. "% of '"' is

allo*ed. Since the said relief is a!!licable to all the !ersons

arra/ed as accused in the second +I6 no further direction is

re8uired in #rit Petition (Criminal) $o. 4 of '".

...@@@@@.@@@@@@@@@@;.(P. SATHASIAM)

...@....@@@@@@@@@@@@@;.(DR. B.S. CHAUHAN)

$K#


61/61

amit shah sc (tulsi prajapati) separate fir case

Documents