SCR.A/421/2007 1/82 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 421 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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? ========================================================= MRS. JAKIA NASIM AHESAN HUSSAIN JAFRI, AT PRE. R/A. & 1 - Applicant(s) Versus THE STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR MM TIRMIZI for Applicant(s) : 1 - 2. MR KAMAL TRIVEDI, ADVOCATE GENERAL for Respondent(s) : 1, None for Respondent(s) : 2, MR YN RAVANI for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 02/11/2007 ORAL JUDGMENT 1. Present petition has been filed by the petitioners herein (petitioner No.1 – original SCR.A/421/2007 2/82 JUDGMENT complainant) under Article 226 of the Constitution of India, read with Section 482 of the Criminal Procedure Code, for an appropriate Writ, direction and/or order directing respondent No.2 – Director General of Police, State of Gujarat, Gandhinagar to register complaint given by the petitioner No.1 dated 08.06.2006 as F.I.R. and to further direct same to be investigated by independent investigating agency i.e. Central Bureau of Investigation i.e. Respondent No.3 herein. 2. The case on behalf of the petitioners as so stated in the petition in nutshell is as under : The petitioner No.1 – original complainant has lost her husband who happened to be Ex.Member of Parliament, in the offence occurred between 27.02.2002 and 10.07.2002 especially on 28.02.2002. The petitioner's husband was brutally killed alongwith 68 others on 28.02.2002 by the miscreants by surrounding the Gulberg Society where the petitioner lived along with her family at that time. The police registered FIR being CR No.I – 67 of 2002 SCR.A/421/2007 3/82 JUDGMENT with Meghaninagar Police Station, Ahmedabad. The case is committed to the Court of Sessions, Ahmedabad. It is further the case of the petitioner that they have received certain material to show that the offence occurred during 27.02.2002 and 10.07.2002, were aided, abetted and conspired with the co-accused persons involved in the mass carnage by the responsible persons in power and in connivance and pre-planning with the State administrative and police machinery of the 'State of Gujarat'. Therefore, petitioner No.1 sought to register the First Information Report against the accused named in the complaint dated 08.06.2006 for the offence punishable under Section 302 read with 120-B, of the Indian Penal Code with sections 193 read with 114 of the Indian Penal Code, 186 and 153A, 186, 187 of the Indian Penal Code and under section 6 of the Commission of Inquiry Act; the Gujarat Police Act and the Protection of Human Rights Act, 1991. It is the case on behalf of the petitioner that though petitioner No.1 had tendered above complaint on 08.06.2006, the same is yet not registered as FIR by respondent No.2 herein. Instead respondent No.1, had SCR.A/421/2007 4/82 JUDGMENT been personally called by respondent No.2 who after accepting the complaint did nothing. It is the case on behalf of the petitioner that pre-condition of any investigation under the Criminal Procedure Code and Indian Penal Code is registration of FIR and in the present case respondent No.2 herein himself becomes the 'court' and intends to give verdict in favour of the 'state government' by completing the investigation without registration of FIR. It is the case on behalf of the petitioner that role of the State's police was always biased especially related to its own conspiring and complicit role in the massacres of 2002. Therefore, very little can be expected from the local police and therefore, after registration of the FIR the same is required to be handed over to an independent investigating agency i.e. the CBI. It is submitted that it was mandatory duty of the police more particularly respondent No.2 to register the complaint given by the petitioner dated 08.06.2006 as FIR and as respondent No.2 failed to perform his statutory duty, the petitioners have preferred the present petition under Article 226 of the Constitution of India for the aforesaid reliefs SCR.A/421/2007 5/82 JUDGMENT by directing respondent No.2 to register the complaint given by the petitioner no.1 as FIR. 3. Mr.M.S.Ganesh, learned Senior Counsel has appeared with Mr.M.M.Tirmizi, learned Advocate appearing for the petitioners. Mr.Ganesh, learned Senior Advocate has made following submission in support of aforesaid reliefs : 1. The Code 'gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed'. 2. Section 154 of the Code is mandatory and the officer concerned is duty bound to register the case if any information disclosing a cognizable offence is laid before him. 3. The question is not whether the nature and character of the offence (e.g. Conspiracy under section 120-B of IPC) has changed by the mere inclusion of a few more offenders (conspirators) as accused or by the addition of one more among the objects of the offence (conspiracy). The question is whether the two conspiracies are in substance and truth. Where SCR.A/421/2007 6/82 JUDGMENT the conspiracy discovered later is found to cover a much larger canvas with broader ramifications, it cannot be equated with the earlier conspiracy which covered a smaller field of narrower dimensions. Further investigation is not altogether ruled out merely because cognizance of the case has been taken by the Court; defective investigation coming to light during the course of a trial may be cured by a further investigation, if circumstances permit it. 4. Practice, convenience and preponderance of authority, permit repeated investigation on discovery of fresh facts. 5. Occasions may arise when a second investigation started independently of the first may disclose a wide range of offences including those covered by the first investigation. 6. There is no provision in the Code that debars the filing of a second FIR and investigating into the alleged offences merely because they overlap with an earlier FIR but extend beyond the scope of the earlier FIR. 7. There is nothing in law to bar to entertainment of a second complaint on the same SCR.A/421/2007 7/82 JUDGMENT facts and allegations, even when a previous complaint has been dismissed. 8. Section 173(8) of the Code is an enabling provision. 9. In a case like the present one, where the police claim to have already registered FIR under Section 154 and filed charge-sheet under Section 170 of the Code, the petitioner's complaint reinforces the need for further investigation in the pending charge-sheets under Section 173(8) of the Code. Such further investigation under Section 173(8) of the Code is legally permissible. 10. In the complaint dated 08.06.2006 submitted to petitioner No.2, Gujarat, petitioner No.1 has furnished explicitly further evidence, oral and documentary, regarding the nature and extent of the involvement of the accused named in her complaint. Therefore, further investigation in relation to commission of the offence as alleged in the complaint is certainly warranted. 11. Further evidence adduced in the complaint was well within the knowledge of the said authorities more particularly respondent SCR.A/421/2007 8/82 JUDGMENT No.2, still they did not think it proper to conduct or cause to be conducted further investigation in terms of Section 173(8) of the Code. 12. Refusal or even unwillingness on the part of respondent Nos.1 and 2 to register FIR under Section 154 of the Code on the said complaint of petitioner No.1 and/or to carry out a further investigation on the further evidence, oral and documentary, furnished with the said complaint under Section 173(8) of the Code clearly amounts to dereliction and failure of public duty on the part of respondent Nos. 1 and 2. Therefore, it is requested that present writ petition requires to be entertained and relief prayed for is liable to be granted. 13. The Commissions of Inquiry Act, 1952 and the Code of Criminal Procedure. 1973 are independent and self contained statues and operate in different spheres. Commission of Inquiry appointed under the 1952 Act does not and cannot supplant or preempt an investigating agency initiating a prosecution under the Code. Such a commission has no power, authority or jurisdiction under the 1952 Act to perform or discharge those functions that a prosecuting / investigating agency alone can do under the Code. There is no statutory bar in the 1952 Act SCR.A/421/2007 9/82 JUDGMENT prohibiting the initiation and continuance of investigations and further investigations under Section 154 and 173(8) of the Code and vice- versa. 14. The petition at the instance of the petitioners for the aforesaid reliefs is maintainable. The objections raised by respondent Nos.1 and 2 with respect to locus standi of petitioner no.2 is untenable as petitioner No.2 is a NGO whose standing to sue the case related to the carnage in 2002 has been expressly recognized by the Hon'ble Supreme Court. 15. It is well recognized principle of criminal jurisprudence that any one can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. 16. Decision of the Hon'ble Supreme Court in the case of AIIMS Employees Union Case reported in (1996) 11 SCC 582; Alque Padamsee' case 2007 (6) SCC 171; which have been followed and applied by this Court in Kanubhai Dayani V/s. State of Gujarat (Special Criminal Application No.582 of 2007 decided on 25.07.2007, according to which petition under Article 226 of the Constitution of India for an SCR.A/421/2007 10/82 JUDGMENT appropriate writ, direction and or order directing the police to register the FIR is not maintainable and aggrieved person has remedy by filing complaint under Section 190 of the Cr.P.C. before the Magistrate, are distinguishable, both on facts and in law and have no application to the present case. That a prayer is also made for investigation by independent agency like CBI and therefore, the petition is maintainable. 4. Learned Advocate appearing on behalf of the petitioners has submitted that the Code gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed. It is submitted that as held by the Hon'ble Supreme Court in the case of S.N.Sharma v/s. Bipen Kumar Tiwari: (1970) 3 SCR 946 followed in State of Bihar V/s.J.A.C.Saldanha : 1980(1) SCC 554; State of Haryana V/s. Bhajan Lal : (1992) Supp. 1 SCC 335 and T.T.Antony V/s. State of Kerala (2001) 6 SCC 181, in appropriate case an aggrieved person can always seek remedy by invoking the power of the High Court under Article 226 of the Constitution of India which, if the High Court is convinced that the power of investigation has been exercised by a police SCR.A/421/2007 11/82 JUDGMENT officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers. 5. It is further submitted by the learned Advocate appearing on behalf of the petitioners that as held by the Hon'ble Supreme Court in the case of Bhajanlal (supra) and in the case of Ramesh Kumari v/s. State (NCT of Delhi) (2006) 2 SCC 677 (para 4 and 5), Section 154 of the Code is mandatory and the officer concerned is duty bound to register the case if any information disclosing a cognizable offence is laid before him. It is submitted that in Ramesh Kumari's (supra) case, the complaint was filed against the police officer and in such a situation, the interest of justice would be better served if the case is registered and investigated by an independent agency like CBI. 6. Relying upon decision of the Hon'ble Supreme Court in the case of Ram Lal Narang v/s. State (Delhi Admmn.) : (1979) 2 SCC 322, more particularly, para 11, 15, 16 to 22. It is further submitted that SCR.A/421/2007 12/82 JUDGMENT investigation is not altogether ruled out merely because cognizance of the case has been taken by the Court. It is also submitted that defective investigation coming to light during the course of a trial may be cured by a further investigation, if circumstances permit it. It is further submitted that it might be when a second investigation is started independently of the first may disclose wide range of offences including those covered by the first investigation. It is further submitted on behalf of the petitioners that there is no provision in the Code that debars the filing of a second FIR and investigating into the alleged offences merely because they overlap with an earlier FIR. For that purpose he has relied upon decision of the Hon'ble Supreme Court in the case of M.Krishna v/s. State of Karnataka :(1999) 3 SCC 247 (paras 3 to 5). 7. It is further submitted that there is nothing in law to bar or which prohibits entertainment of second complaint on the same facts and allegations, even when a previous complaint is dismissed. It is submitted that circumstances in SCR.A/421/2007 13/82 JUDGMENT which such second complaint can be entertained include (1) manifest error; (2) manifest miscarriage of justice and (3) new facts which the complainant had no knowledge of or could not with reasonable diligence have brought forward in the previous proceedings; (4) where the previous order of dismissal was passed on an incomplete record or a misunderstanding of the nature of the complaint. In support of above submission learned Counsel has relied upon the decision of the Hon'ble Supreme Court in the case of Pramatha Nath Taluqdar v/s. Saroj Ranjan Sarkar : 1962 (supp.2) SCR 297 as well as decision of the Hon'ble Supreme Court in the case of State of Rajasthan v/s. Aruna Devi (1995) 1 SCC 1 (para 4). It is further submitted that section 173(8) of the Code is enabling provision and it has been inserted as a new provision so that it may not be contended that on the submission of a charge sheet investigation came to a standstill and hands of the police officers are tied down. It is further submitted that ordinarily, a conceivable occasion for an additional charge sheet would be a disclosure of a new material. So while acknowledging and recognizing SCR.A/421/2007 14/82 JUDGMENT the police officers's right to submit a fresh charge- sheet, such conceivable circumstances are put on the statute in terms of Section 173(8). It is submitted that those circumstances are enumerative and not exhaustive in character. It is submitted that if the very material is misunderstood by the police station officer and if he has received proper light from his superiors he can certainly file an additional charge sheet though there may not be strictly speaking further investigation and collection of new material. In such a case, instead of new material there is new light that is received by him. If new interpretation of the evidence is brought to his notice, the investigating officers's power cannot be curbed because of the enumeration of the circumstances of the recovery or discovery of the new material. In support of this submission, the learned Counsel has relied upon decision of this Court in the case of Deepak Dwarkadas Patel v/s. State of Gujarat reported in (1980) 21 GLR 135. 8. It is submitted that in a case like the present one, where the police claim to have already SCR.A/421/2007 15/82 JUDGMENT registered FIR under Section 154 and filed charge sheet under Section 170 of the Code, the petitioner's complaint reinforces the need for further investigation in the pending charge sheets under Section 173(8) of the Code. It is submitted that such further investigation under Section 173(8) of the Code is legally permissible. In support of this submission, learned Counsel has relied upon the decision of the Hon'ble Supreme Court in the case of Jayant Vitamins Ltd. V/s. Chaitanyakumar (para 4) reported in (1992) 4 SCC 15; Ram Lal Narang v/s. State (Delhi Admin.) (para 11 to 22) reported in (1979) 2 SCC 322; State of Bihar v/s. J.A.C.Saldanha (para 19) reported in 1980 (1) SCC 554; State of Haryana v/s. Bhajan Lal reported in (1992) Supp. 1 SCC 335 (para 35 and 36); Hasanbhai Valibhai Qureshi v/s. State of Gujarat reported in (2204) 5 SCC 347 (paras 11 to 13); Zahira Habibullah Sheikh v/s. State of Gujarat reported in (2004) 4 SCC 158 (para 78 and 79). It is further submitted that in such a situation the power of the Court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in section 173(8) to SCR.A/421/2007 16/82 JUDGMENT suggest that the Court is obliged to hear the accused before any such direction is made. In support of this submission, learned Advocate has relied upon the decision of the Hon'ble Supreme Court in the case of Sri Bhagwan Samardha Sreepada etc. Maharaj v/s. State of A.P. (para 10 and 11) reported in (1999) 5 SCC 740. It is submitted that section 173(8) of the Code permits further investigation and even dehors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted. It is submitted that in the present case, on the basis of further evidence, oral and documentary, furnished by the complainant to the Director General of Police, Gujarat, a further investigation is warranted. In such a situation, the hands of the investigating agency or the Court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to arrive at truth. An effective trial for real or actual offences found during the course of proper investigation is as such relevant, desirable and necessary as an expeditious SCR.A/421/2007 17/82 JUDGMENT disposal of the matter by the Courts. It is submitted that mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the Court in arriving at truth and do real and substantial effective justice. For that purpose, learned Advocate has relied upon decision of the Hon'ble Supreme Court in the case of Hasanbhai Valibhai Qureshi v/s. State of Gujarat reported in (2004) 5 SCC 347 (para 11 to 13). 9. The learned Counsel appearing on behalf of the petitioners has further submitted that in the complaint dated 08.06.2006 submitted to the Director General of Police, Gujarat, the petitioner No.1 has furnished further evidence oral and documentary, regarding nature and extent of involvement of the accused named in her complaint and the said further evidence comprises evidence as well as documentary evidence led before the Nanavati Shah Commission that established the commitment of serious, non-bailable crimes by the head of State and other responsible functionaries. It is submitted that there are SCR.A/421/2007 18/82 JUDGMENT specific allegations made against individual accused. It is further submitted that it is alleged in the complaint with respect to specific transfers and disciplinary proceedings against top ranking police officers who were 'non co-perative' with the illegal actions of the head of state, but who were actually acting in conscience as per the Constitution, the law and their administrative service rules. It is submitted that there are allegations against other higher officers also. Therefore, it is submitted that under the circumstances, further investigation in relation to the commission as alleged in petitioner no.1's complaint is certainly warranted. It is further submitted that copies of the complaint were also sent to the Police Inspector, Sector – 21, Gandhinagar, Chief Secretary and the Home Secretary, Government of Gujarat. It is further submitted that even otherwise further evidence adduced in the petitioner no.1's complaint was well within the knowledge of the said officers as they had themselves deposed, orally and on affidavit before the Nanavati Shah Commission and still they did not bestir themselves qua prosecuting agency to conduct or cause SCR.A/421/2007 19/82 JUDGMENT to be conducted further investigation in terms of section 173(8) of the Code. 10. It is further submitted by the learned advocate appearing on behalf of the petitioners that looking to the aforesaid facts and circumstances of the case, refusal or even unwillingness on the part of respondent Nos. 1 and 2 to register the FIR under Section 154 of the Code on the said complaint of petitioner No.1 and or to carry out a further investigation on the further evidence, oral and documentary, furnished with the said complaint under Section 173(8) of the Code clearly amounts to dereliction and failure of public duty on the part of respondent Nos.1 and 2. Therefore, it is submitted that present writ petition requires to be entertained and reliefs prayed for are liable to be granted by this Court. At this stage, learned Advocate appearing on behalf of the petitioners has relied upon the decision of the Hon'ble Supreme Court in the case of Vishwanath Chaturvedi (III) v/s. Union of India reported in (2007) 4 SCC 380 (para 39,40,43 and 44) as well as the decision of the Hon'ble Supreme SCR.A/421/2007 20/82 JUDGMENT Court in the case of Union of India v/s. Sushil Kumar Modi reported in (1996) 6 SCC 500 (para 11). 11. It is further submitted that refusal to register the complaint under Section 154 of the Cr.P.C. or not initiating proceedings for further investigation under Section 173(8) of the Code on the ground that proceedings of Nanavati and Shah commission are pending cannot be accepted for the simple reason that the commission of Inquiry Act, 1952 and Code of Criminal Procedure 1973 are independent and self contained statues and operate in different spheres. Commission of Inquiry appointed under the 1952 Act does not and cannot supplant or preempt an investigating agency initiating a prosecution under the Code. It is submitted that such a commission has no power, authority or jurisdiction under the 1952 Act to perform or discharge those functions that a prosecuting / investigating agency alone can do under the Code. It is submitted that there is no statutory bar in the 1952 Act prohibiting the initiation and continuance of investigations and further investigations under Section 154 and 173(8) SCR.A/421/2007 21/82 JUDGMENT of the Code. 12. Relying upon the decision of the Hon'ble Supreme Court in the case of Ram Lal Narang (supra) affirmed in Upkar Singh v/s. Ved Prakash reported in (2004) 13 SCC 292 (para 16 to 23), it is submitted that even in the case where a first complaint is registered and investigation initiated, it is possible to file a further complaint by the same complainant based on the material gathered during the course of investigation. It is submitted that even in regard to a complaint arising out of a complaint on further investigation if it is found that there was a larger conspiracy than the one referred to in the previous complaint then a further investigation under the Code culminating in another complaint is permissible. It is further submitted that said principle applies also to a subsequent complaint by a different complainant. 13. Meeting with the preliminary objection raised by the State Government with respect to locus standi of petitioner no.2., it is submitted that so far as the petitioner no.2 -NGO is concerned, it is SCR.A/421/2007 22/82 JUDGMENT the NGO whose standing to sue has been expressly recognized by the Hon'ble Supreme Court of India in other matters related to the carnage in Gujarat in 2002. Relying upon the decision of the Hon'ble Supreme Court in the case of Vishwanath Chaturvide (III) (supra), it is submitted that so far as criminal jurisprudence is concerned, any one can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. It is submitted that as observed by the Hon'ble Supreme Court in the said