SCR.A/1875/2005 1/32 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1875 of 2005 HONOURABLE MR.JUSTICE KS JHAVERI ====================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================================== AMEENABIBI HABIB RASOOL & 1 - Applicant(s) Versus THE STATE OF GUJARAT & 1 - Respondent(s) ====================================================== Appearance : MR MM TIRMIZI for Applicant(s) : 1 - 2. MR KAMAL B. TRIVEDI, ADVOCATE GENERAL with MS SANGEETA VISHEN, AGP, for Respondent(s) : 1 MR YN RAVANI for Respondent(s) : 2 ====================================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 08/12/2006 SCR.A/1875/2005 2/32 JUDGMENT ORAL JUDGMENT 1.0 When the matter is taken up for hearing today, a draft amendment has been submitted in the matter in court praying for directions to transfer the investigation of the offence registered as CR No.13/2002 with Khanpur Police Station along with offence registered as CR No.I 11/2002 with Khanpur Police Station, Panchmahals to CBI; direction to respondent no.1 to return the skeletons to the respective relatives in presence of CBI and to allow dignified burial; direction to respondent no.2 to investigate the still missing bodies related to the offence that occurred in Pandarwada between 28th February and 3rd March 2002 and to direct the respondents to ensure prevention of intimidation and harassment of the victims in connection with the aforesaid complaints. Though substantial prayers have been sought, no supporting facts are stated nor are the same affirmed by the petitioners. An attempt has been made to enlarge the scope of petition and delay the hearing which was not desirable. Therefore the draft amendment has been rejected. 1.1 Thereafter, during the hearing of the matter same draft amendment was submitted by affirming the same. However, even in this amendment also no facts are stated to support the prayers. Hence the draft amendment is rejected. 2.0 The petitioners herein had prayed for directions to transfer the investigation of C.R.No.I 11 of 2002 registered with Khanpur Police Station, Lunavada to CBI; to seal the unearthed remains of the deceased in the presence of the relatives treating them as panch SCR.A/1875/2005 3/32 JUDGMENT witnesses and to send the same for DNA testing to Red Hill, Hyderabad Forensic Laboratory and to direct that an FIR be registered with the relatives of the deceased as complainants about the unearthing of the remains. As stated above by way of draft amendment the petitioners have prayed to transfer the investigation of the offence registered as CR No.12/2002 with Khanpur Police Station along with the offence registered as CR No.I 11/2002 with Khanpur Police Station, Panchmahals to CBI; to direct the respondent no.1 to return the skeletons to the respective relatives in presence of the CBI for a dignified burial; to direct the respondent no.2 to investigate the still missing bodies related to the offence occurred in Pandarwada between 28th February 2002 and 3rd March 2002 and to direct the respondents to ensure prevention of intimidation and harassment of the victims and human rights defenders associated to the offences registered as C.R. No.I 11/2002 and 13/2002 with Khanpur Police Station, Panchmahals. 3.0 The short facts which led to filing of the present petition are as under: 3.1 In pursuance of the incident known as Godhra carnage, a mob of 5000 to 6000, armed with swords and dharias came to the village of petitioner no.1. Petitioner no.1 along with others ran to the field and hid themselves behind hay stacks. The mob set fire to the dry grass. Thereupon the petitioner no.1 and others started running to escape from the mob. However, the mob caught hold of various persons and killed them. After the incident the Sarpanch and others made petitioner no.1 and others to pick up nine dead bodies and dump them into one of the vehicles. Petitioner no.1 and others were taken away in another vehicle and petitioner no.1 was told that the dead bodies would be brought to SCR.A/1875/2005 4/32 JUDGMENT them. The vehicle carrying the dead bodies went to Lunawada side and thereafter they had never seen the dead bodies. 3.2 On 27th December 2005 petitioner no.2 came to know that certain dead bodies were buried on the bank of river Panam, Lunawada. Petitioner no.2 and others went to the site and dug out the dead bodies. According to the petitioners, after unearthing the dead bodies the police is required to follow the procedure as envisaged under section 174 and 176 of CrPC.. On 1st March 2002 the police had sent the dead bodies to the hospital for post mortem and thereafter the dead bodies have been disposed of. However, on 27th December 2005 when the dead bodies were taken out, the clothes worn by the deceased were the same as they were wearing at the time of the incident when they were alive. Had the postmortem been performed, the doctors would have covered the dead bodies with white clothes in accordance with law. The police was also required to draw Panchnama of the clothes of the deceased. However, when the dead bodies were unearthed, the bodies were found with same clothes which they had worn on 1st March 2002. Therefore, the petitioners apprehend that the police would not carry out the investigation properly and the same is required to be handed over to CBI. Accordingly the present petition has been filed. 4.0 In view of the aforesaid prayers, this Court after discussing the matter at length, on 29th December 2005 issued the following directions: “8. In view of above, it is hereby ordered by way of an interim arrangement that in presence of responsible officers of CBI, sample from each deadbody digged out and at present lying out, be taken and sample be sealed and sent to Red Hill Laboratory, Hyderabad for analysis and DNA testing along with the samples drawn in same manner of SCR.A/1875/2005 5/32 JUDGMENT from the body of the close relatives of the deceased. The report of test, in turn be sent to CBI and copy thereof be sent to this Court. CBI may be assisted actively by the State Police so that the things can take shape smoothly and exercise is completed smoothly. If the State machinery so desires, may give the case papers of exercise that has undertaken by the State machinery to CBI, otherwise details can be scrutinized by this Court while passing further orders in the matter. It will be open for the State or close relatives of the deceased to put and bury the dead bodies either by themselves or they can be buried by State machinery as per the norms adopted by such machinery. While drawing samples from the body of the close relatives, the Officer from State Police shall remain present so that identity of the person from whom sample is drawn should not, in any way, be under confused state. Order and directions accordingly. 9. Copy of this order can be served to the CBI at its appropriate office i.e. either at Bombay or at Delhi.” 4.1 Thereafter on 12th January 2006 this Court passed the following order: 2. Heard Mr.M.M. Tirmizi, learned counsel appearing for the petitioners; Mr.K.B. Trivedi, learned Additional Advocate General, appearing on behalf of the respondent no.1-State and Mr.Nigam R. Shukla, learned counsel appearing for the respondent no.2-CBI. 2. After detailed deliberations made by Mr.K.B.Trivedi, learned Additional Advocate General for respondent no.1- State and Mr.N.R. Shukla for the respondent no.2-CBI, further clarificatory orders are required to be passed to avoid confusions which have been cropped on account of ground realities found at the spot when the respondent no.2-CBI proceeded to collect the samples in compliance of the order passed by this Court on 29th December, 2005. 3.It emerges from record that some of the buried dead- bodies were dug out on or about 27th December, 2005, but SCR.A/1875/2005 6/32 JUDGMENT they were again reburied. So the day on which this Court has passed the order i.e. on 29th December, 2005, no dead- body/ skeleton was lying on the ground and, therefore, considering the spirit of the order passed by this Court, the respondent no.2-CBI has collected the samples from the burial ground with the help and assistance of the State machinery. The responsible officers, including the Executive Magistrate, were also present. The Court is informed that all the dead-bodies/skeletons recovered are now kept in the form in which they were found, in separate containers. 4. The wish of the respondent no.2-CBI as expressed by Mr.Shukla is that all the containers should be taken to the laboratory at Hyderabad for DNA test because such test may need all the remains of the body/skeleton. At present the question of identity of the persons deceased is not a matter of dispute. The Court is informed that the Executive Magistrate has also put his seal on each container and Mr.M.M. Tirmizi has also no objection if all such containers are taken for appropriate test to the laboratory at Hyderabad. Total there are 9 (nine) containers of the dead- bodies/skeletons of the persons deceased and they are sealed by the Executive Magistrate. So all these 9 (nine) containers shall be carried to the concerned laboratory for analysis. Total 57 close relatives of the persons declared dead have given their blood samples. The same are drawn by the team headed by Dr.Dogra, Chief of Forensic Science, All India Institute of Medical Sciences, New Delhi, to the satisfaction of the respondent no.2-CBI. These blood samples were drawn in presence of local doctors of the Health Department of the State and also officials of other departments. So if the respondent-State desires to apply its own seal on this container, the responsible officer or the Executive Magistrate can put his seal on this container. Therefore, all the ten containers containing samples of blood and bodies/skeletons be examined by the Centre for DNA Finger Printing and Diagnostics (CDFD) situated at Hyderabad, instead of Red Hill Laboratory at Hyderabad. Mr.M.M. Tirmizi, learned counsel appearing for the petitioners, has fairly accepted that the petitioners have no objection if the said samples are examined by the SCR.A/1875/2005 7/32 JUDGMENT laboratory named in the reply affidavit filed by the respondent no.2-CBI. The anxiety of the respondent no.1- State is also found valid that a copy of the report of CDFD may also be given to the State. So now the CDFD Laboratory Authority is directed to prepare and send its report in three copies, preferably shall see that all the three are signed originally by the concerned officer to (i) Registry of this Court; (ii) respondent no.2-Superintendent of Police, Central Bureau of Investigation, Special Crime Branch, Mumbai and (iii) Secretary, Home Affairs, State of Gujarat, Gandhinagar. 5. It is rightly submitted by Mr.N.R.Shukla, learned counsel appearing for the respondent no.2-CBI, that as the State machinery has cooperated while collecting the samples, etc. it may further help the CBI in taking the containers to the concerned Laboratory i.e.CDFD at Hyderabad by deputing responsible officers and infrastructural requirements. The State shall take appropriate decision in this regard and shall see that the samples are carried safely to the laboratory i.e.CDFD. 6. After analysis of DNA Finger Printing, the dead- bodies/ skeletons be brought back at the place from where the same are being taken and this Court thereafter shall pass appropriate further orders as to reburial of these dead- bodies/ skeletons after the submissions that may be made before this Court. So now the dead-bodies/ skeletons in question shall not be handed over directly to the relatives till further orders that may be passed by this Court. 7. A copy of this order/writ be served to the Director, CDFD, Hyderabad through any responsible officer of the respondent no.2-CBI. 8. It is hereby clarified that earlier this Court and the counsel appearing for the parties were under impression that all the dead-bodies/ skeletons were lying on the ground and they have been dug out. But in reality, the dead- SCR.A/1875/2005 8/32 JUDGMENT bodies/skeletons were not on the ground but they were buried and, therefore, the CBI collected the samples by taking out these dead-bodies/ skeletons in view of the spirit of the order passed by this Court and the State Machinery has co-operated with the exercise and the petitioners were also present when these samples were collected. 9. It is clarified that none of the petitioners or relatives of the persons deceased or the office bearers of the petitioner no.2 shall travel with the dead-bodies/skeletons to the laboratory at Hyderabad. The petitioners and/or any of their office bearers will have no say till the dead-bodies/ skeletons are received from the concerned laboratory after due analysis/test. The matter is adjourned to 10th February, 2006. Direct Service to the parties is permitted. A copy of this writ be handed over to the respondent no.2-CBI also so that the same be served to the Director, CDFD, Hyderabad.” 5.0 Mr. Tirmizi, learned Advocate for the petitioners submitted that in view of the DNA report, further investigation is required to be carried out by CBI. He submitted that there were several discrepancies in the investigation carried out by the State Police Authorities and therefore it would be appropriate if the investigation is entrusted to CBI. He submitted that the presence of original clothes on the skeletons of the dead would go to show that post mortem was not performed by the State Authorities and the CBI was also not permitted to do so. He further submitted that the fact that the bodies were buried in forest land and not on waste land also would go to show that the Authorities want to hush up the matter. 5.1 Mr. Tirmizi submitted that there are many lapses on the part of the State Authorities in the investigation which are required to be viewed SCR.A/1875/2005 9/32 JUDGMENT very seriously. According to him, the affidavits filed by the relatives of the victims are not controverted and the State Authority has tried to help the accused by not taking proper action in the matter. Thus, the submission of the petitioners is that the matter requires further investigation and as the State Government has tried to help the accused, the police authority had not conducted the investigation properly and therefore, this is a fit case to transfer the investigation to CBI. 5.2 In support of his contentions, Mr. Tirmizi has relied upon a decision in the case of State of Bihar and Another V.Ranchi Zila Samta Party and Another, reported in 1996(102) CRLJ 2168 SC wherein also the question arose as to whether the investigation is required to be transferred to CBI. On the facts of that case the Apex Court ordered that the investigation be entrusted to CBI and CBI was directed to take over the investigation already made by the State Police. 5.3 Mr. Tirmizi has also relied upon a decision in the case of Mohan Lal Sharma V. state of U.P. reported in 1989(2) SCC 600, wherein in case of police lock up death, and inquiry conducted by City Magistrate having been found unsatisfactory, the case was directed to be referred to CBI. 5.4 He has also relied upon the decision in the case of Central Bureau of Investigation Vs. state of Rajasthan, reported in 2001(3) SCC 333 wherein it is held that the Supreme Court under Articles 32 and 142 and High Court under Article 226 can, in certain cases, direct CBI to conduct investigation into any offence, but the power has to be exercised sparingly. SCR.A/1875/2005 10/32 JUDGMENT 5.5 Mr. Tirmizi has pointed out certain irregularities in the investigation at earlier point of time and the affidavits filed in the year 2005 and stated that in view of the same the inquiry is required to be transferred to CBI. 5.6 Mr. Trimizi has also relied upon a decision in the case of Central Bureau of Investigation Vs. State of Rajasthan reported in (2001)3 SCC 333 wherein it is held that a Magistrate under section 156(3) has no power to direct CBI to conduct investigation into any offence. 6.0 Mr. Kamal Trivedi, learned Advocate General submitted that no case is made out to transfer the investigation to CBI and this petition requires to be rejected. He submitted that the sole purpose of filing the present petition is to give unnecessary publicity and reviving the fading issues which are otherwise being given hiatus and/or being under active consideration in various pending proceedings. 6.1 According to Mr. Trivedi the petition itself is misconceived on various grounds to the effect that the petitioners have not provided that they have personal knowledge about various alleged grievances made on behalf of several individuals. He submitted that the concerned persons including the associates of petitioner no.2 should have approached the competent authorities instead of straightaway exhuming the skeletons on their own without the permission of the competent authority. 6.2 Mr. Trivedi submitted that petitioner no.2 has no locus standi to file the present petition under the guise of espousing the cause on SCR.A/1875/2005 11/32 JUDGMENT behalf of the petitioner no.1 and others as the petitioners are not authorized to do so and no fundamental rights of the petitioner no.2 has been abridged or infringed. 6.3 According to Mr. Trivedi the petitioners ought to have filed an appropriate application before the appropriate court inasmuch as the regular proceedings arising out of CR No.I 11 of 2002 are very much pending before different courts. He further submitted that the petitioners have not come to this Court with clean hands and therefore they are not entitled to any relief. 6.4 Mr. Trivedi submitted that there is a gross delay in the matter inasmuch as the petitioners ought to have come forward to claim the dead bodies in the year 2002 itself as was done by the relatives claiming dead bodies in connection with another offence registered as CR No.13 of 2002. 6.5 Mr. Trivedi further contended that initially charge sheet was filed and trial had begun against 23 accused persons. Out of 23, 11 persons were acquitted by the trial court on 29.10.2002 against which appeal has been preferred before this Court which is pending. The State has made an application under section 173(8) of the Criminal Procedure Code in the matter before the learned Judicial Magistrate, First Class, which was rejected. Against the said order the State has preferred a revision application which is pending. He submitted that during the pendency of the said revision application before the Court of Sessions, Godhra, after having informed the Sessions Court, the investigating agency started further investigation in the matter under section 173(8) of Criminal Procedure Code. He submitted that as a result of further SCR.A/1875/2005 12/32 JUDGMENT investigation, two more persons have been booked and two more are likely to be booked. He further submitted that the trial court had acquitted 8 accused persons against which appeals have been preferred by the State Government. 6.6 Mr. Trivedi pointed out that the earlier order passed by this Court on 28.12.2005 only refers that if needed the CBI can approach this Court. The CBI received the DNA Report, which was conducted at Hyderabad and not at Gandhinagar. The report was submitted way back in May 2006 and till today they have not approached this Court for transferring the case. 6.7 According to Mr. Trivedi, as per the DNA report, the skeletons of the dead bodies have completely been contaminated because of microbial bacterial contamination and therefore the DNA test was not feasible on the skeletons. Though identification was difficult, dead bodies of 6 individuals have been identified. 6.8 Mr. Trivedi submitted that further investigation is being conducted as per the provisions of section 173(8) of CrPC. He, therefore, submitted that there is no lapse on the part of the State Government or the Police Authorities in carrying out the investigation and therefore no case is made out to hand over the investigation to CBI. He has further submitted that no application is made to the concerned authority to transfer the investigation till this date and unless such a request is made and rejected, the petitioners cannot approach this Court for the said relief. He, therefore, submitted that the petition deserves to be rejected. 6.9 In support of his contentions Mr. Trivedi relied upon a decision in the case of All India Institute of Medical Sciences Employees Union SCR.A/1875/2005 13/32 JUDGMENT (Regd.) V. Union of India and others, reported in (1996) 11 SCC 582 wherein it is held that if no action is being taken by the police authority, the complainant can file a complaint before the Magistrate having jurisdiction to take cognizance of the offence and the complainant is not entitled to approach the High Court by filing a writ petition and seeking a direction to conduct an investigation by CBI. 6.10 He has relied upon a decision in the case of State of Maharashtra and others V. Sheela Ramesh Kini and others, reported in (1998)9 SCC 346 wherein it is held that merely because the crime has generated immense amount of public interest or a public outcry, that cannot be a good ground for transfer of a case from CID to CBI. 6.11 Mr. Trivedi has relied upon a decision in the case of State of Karnataka Vs. Arun Kumar Agarwal and others, reported in (2000)1 SCC 210, wherein it is held that High Court was not justified in directing the State Government to get an investigation done through CBI when neither specific crime nor persons involved in the crime nor place of crime is known. 6.12 Mr. Trivedi has also relied upon Tests in Criminal Investigation, Trial and Paternity Disputes published by Alia Law Agency, Lucknow, wherein it is stated that in case of contamination, DNA test is a problem, any small amount of contaminated DNA may give false or misleading results and the only option to avoid it is the use of control sample and careful interpretation. It also states that if DNA molecule is contaminated, it may produce false or misleading results. 6.13 Mr. Trivedi submitted that the dead bodies were buried in survey no.69 on the banks of the river “Paanam”. Petitioner no.1 and other SCR.A/1875/2005 14/32 JUDGMENT victims have alleged that the said land is “forest land” as per the 7/12 village form and that therefore, according to them, the local administration ought not to have buried the dead bodies without handing over the same to the survivors of the deceased. However, according to Mr. Trivedi, no survivors had come forward to claim dead bodies at that time and hence the same were handed over to local authorities,before whom also nobody had come forward. 7.0 Mr. Yogesh N. Ravani, learned Advocate, appearing for respondent no.2 CBI submitted that he has not been given any instructions in the matter for further investigation and if this Court directs CBI, the CBI will investigate into the matter. This statement has been made in spite of the direction issued to CBI on 28th April 2006. 8.0 As a result of hearing and perusal of the record, it is apparent that all along the arguments the main emphasis in the contention of the learned Advocate for the petitioners is to transfer the investigation of CR No.I 11/02 to CBI because of the approach of the police authorities in handling the dead bodies in March 2002. In support of this proposition affidavit in rejoinder of petitioner no.1 dated 8.2.2006 was read very extensively. Various other affidavits of several individuals were also read over in support of the submission that though the relatives had demanded the dead bodies, no response was ever given by the administration. 8.1 As against this submission,