SCR.A/289/2006 1/38 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 289 of 2006 With CRIMINAL MISC.APPLICATION No. 6742 of 2005 In SPECIAL CRIMINAL APPLICATION No. 445 of 2005 With SPECIAL CRIMINAL APPLICATION No. 445 of 2005 With SPECIAL CRIMINAL APPLICATION No. 531 of 2005 With SPECIAL CRIMINAL APPLICATION No. 1576 of 2006 With CRIMINAL MISC.APPLICATION No. 10549 of 2006 With SPECIAL CRIMINAL APPLICATION No. 2106 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= R.M.SOLANKI - Applicant(s) Versus THE STATE OF GUJARAT & 5 - Respondent(s) ========================================================= Appearance : MR YN OZA SR ADVOCATE WITH MR PS CHAMPANERI for Applicant(s) : 1, MR AY KOGJE, APP for Respondent(s) : 1, None for Respondent(s) : 2, NOTICE SERVED BY DS for Respondent(s) : 3 - 4, 6, MR FB BRAHMBHATT for Respondent(s) : 5, ========================================================= SCR.A/289/2006 2/38 JUDGMENT CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 30/04/2008 CAV JUDGMENT 1. In the above-mentioned group of cases, Special Criminal Application No.445/2005 and Special Criminal Application were argued as lead matters. It would therefore, be useful to note in brief the background leading to the said petitions. There are other connected and related proceedings also, to which reference will be made at a slightly later stage. 2. Special Criminal Application No.445/2005 has been filed by one Bhanubhai Ratilal Parmar stating inter-alia that his younger brother Vinubhai Ratilal Parmar is dealing in land on commission basis. In the course of the business, he had come in contact with various Government officials including the police officers. He came in contact with one R.M. Solanki, Deputy Superintendent of Police, ATS, Ahmedabad who was interested in purchasing land. Some disputes arose between Shri R.M. Solanki and Vinubhai Ratilal Parmar. Shri R.M. Solanki had threatened Vinubhai Ratilal Parmar with dire consequences. He is a highly placed police officer and is posted in ATS. One Hansraj Shekavat was sent by Shri R.M. Solanki on SCR.A/289/2006 3/38 JUDGMENT 27.3.2005 with whom Vinubhai had accompanied. Since Vinubhai Ratilal Parmar did not return, the petitioner and other family members started searching for him. They also approached Sabarmati police station and lodged a complaint in this regard which was registered as Janva Jog Entry No.56/2005. The petitioner apprehended that R.M.Solanki would book his brother for offence which he has not committed. It is further stated that on 30.3.2005 one news item was published stating that in Junagadh, ATS had conducted a raid and form an Indica Car No. GJ- 6-JJ-9216, certain quantity of charas has been seized. It is stated that it is this car in which the brother of the petitioner namely Vinubhai Ratilal Parmar had travelled with Hansraj Shekavat. The petitioner apprehended that his brother would be falsely involved by Shri R.M. Solanki who enjoys vast powers. It is therefore, prayed in the said petition that appropriate directions be given to carry out the investigation by any independent officer superior in rank to Shri R.M. Solanki of the offence in which brother of the petitioner Vinubhai Ratilal Parmar is involved in offence of Narcotic by ATS by conducting raid at Junagadh in the guise that Vinubhai Ratilal Parmar is dealing in charas. 3. Special Criminal Application No. 289/2006 has been filed by Shri R.M. Solanki, Deputy SCR.A/289/2006 4/38 JUDGMENT Superintendent of Police. Broadly stated, it is his case that he is a police officer with meritorious service career. He received several rewards and appreciation during his service career. He was recommended for the Presidential award for meritorious service in police by Special Inspector General of Police(Operations),ATS Gujarat State. 3.1 During the post Godhra communal riots of 2001 also he had rendered valuable service and played an impartial role. It is further stated that one Shri Virendra B. Raval, In- charge Deputy Superintendent of Police, Unit No.3, Anti Terrorist Squad Police Station had received information about Vinubhai Ratilal Parmar being involved in sale of narcotics and of his likelihood of passing through Majedi gate, near railway station, Junagadh in Indica Car bearing Registration No.GJ-6-JJ-9216. Upon information, the said officer had proceeded to intercept the car and carried out the search. It was revealed that said Shri Vinubhai was travelling in the car and charas weighing 975 grams was found in addition to one country made pistol of 7.65 bore with live cartridges. 3.2 It is further contended that brother of Vinubhai Ratilal Parmar had filed a false complaint before the Sabarmati police station being CR.I No.131/2005 on 28.3.2005 complaining SCR.A/289/2006 5/38 JUDGMENT that his brother was missing. It is pointed out that in Special Criminal Application No. 445/2005 filed by brother of Vinubhai Ratilal Parmar, this Court (Coram : C.K. Buch,J.) had by order dated 4.4.2005 transferred the investigation from ATS to independent officer above the rank of Deputy Superintendent of Police and directed the authority to submit the progress report of the investigation. 3.3 It is further contended that the investigation is not being carried out earnestly and independently and attempt is being made to involve the present petitioner mala fide particularly on account of role played by him during the post Godhra riot whereby he had acted impartially which was not liked by some powerful persons at the State level. It is further contended that the entire investigation should be handed over to the CBI. 3.4 The prayer of the petitioner therefore, is that the investigation of C.R.No.III 3 of 2005 registered at ATS Gujarat and C.R.No.II 3 of 2005 registered at ATS Gujarat and CR.I No.131/2005 registered at Sabarmati police station (the two cases arising out of interception of Indica car in which Vinubhai was allegedly found carrying charas and revolver) be handed over to CBI. SCR.A/289/2006 6/38 JUDGMENT 4. At this stage one may also note some of the other proceedings. Special Criminal Application No. 531/2005 has been filed by one Kanubhai Ratilal Parmar. He is also brother of Vinubhai Ratilal Parmar. On allegations similar to those made in Special Criminal Application No.445/2005 and apprehending false involvement of Vinubhai Ratilal Parmar in Criminal Case, this petitioner has also prayed for a direction for handing over investigation of C.R. No.I 131/2005 registered with Sabarmati Police Station to the same agency which is investigating C.R. No.II 3 of 2005 and prohibition C.R. No.III 3 of 2005. For obvious reasons, outcome of Criminal Appeal No. 445/2005 will govern the ultimate result in Special Criminal Application No. 531/2005 also. 4.1 Criminal Misc. Application No. 6714/2005 has been filed by Shri R.M. Solanki praying that order dated 4.4.2005 passed by the Learned Single Judge of this Court in Special Criminal Application No.445/2005 being an ex- parte interim order be vacated. Final order that may be passed in Special Criminal Application No. 445/2005 shall govern this Criminal Misc. Application also. 4.2 Special Criminal Application No. 1576/2006 has been filed by one Manoj Patel SCR.A/289/2006 7/38 JUDGMENT seeking initiation of disciplinary action against respondents nos. 3 and 4 of the petition who are police officials. 4.3 Special Criminal Application No. 2106/2006 has been filed by one Bavaji Vaidya seeking quashing and setting aside of the impugned complaint bearing C.R. No. I 131 of 2005 registered with Sabarmati police station. 4.4 Criminal Misc. Application No.10549/2006 has been filed by one Hansraj Shekavat seeking anticipatory bail in connection with C.R. No. I 131/2005. 5. These proceedings have been tagged along with the main petition. Learned advocates for the parties have not addressed me on these matters. They shall therefore, have to be placed before the appropriate Court after finally disposing of Special Criminal Application Nos. 445/2005, 531/2005 and 289/2006. 6. Some of the factual aspects involved in the said petitions may be noted at this stage. 7. As noted, on a tip off that Vinubhai Ratilal Parmar is likely to pass through Junagadh with narcotics in his possession, on 29.3.2005 Shri V.B. Raval, Deputy Superintendent of Police, Unit III, ATS had intercepted the Indica Car NO. SCR.A/289/2006 8/38 JUDGMENT No.GJ-6-JJ-9216 near Majevadi Gate, Junagadh and claimed to have found 975 grams of charas upon search. Revolver of 7.65 mm bore along with 9 live cartridges was also allegedly seized. Resultantly, two cases were lodged namely complaint bearing C.R. No. III 3 of 2005 registered with ATS Gujarat State and C.R. NO. II 3/2005 for seizure of narcotics and fire arm respectively. 7.1 Apparently, Bhanubhai Ratilal Parmar brother of Vinubhai Ratilal Parmar had given a Janva Jog entry before Sabarmati Police Station regarding his brother Vinubhai Ratilal Parmar being missing. On 29.3.2005, Kanubhai another brother of Vinubhai Ratilal Parmar lodged the complaint bearing C.R. No.I-131/2005 before the Sabarmati police station for offenes punishable under Section 365, 294(b) and 114 of the Indian Penal Code against Hansraj Shekavat and unknown persons. 7.2 Investigation in the said three criminal cases were going on at which time Bhanubhai Ratilal Parmar filed Special Criminal Application No. 445/2006 before this Court for transfer of investigation of the case in which Vinubhai Ratilal Parmar was involved by the ATS pursuant to raid carried out at Junagadh and search of Indica Car No. GJ-6-JJ-9216. In the said petition, learned Single Judge of this SCR.A/289/2006 9/38 JUDGMENT Court on 4.4.2005 while issuing notice of final disposal by way of interim arrangement directed that the Director General of Police shall see that under direct supervision and monitoring of the highest officer dealing with the A.C.B. cases be entrusted with the complaints and allegations made by the petitioner Bhanubhai Parmar against Mr. R.M. Solanki and such allegations be investigated thoroughly. It was further directed that investigation of the crime in question registered with ATS police station, Ahmedabad is taken from Mr. R.M. Solanki and be handed over to the officer not below the rank of D.S.P. and especially from the department which has no direct link with the A.T.S. operation and activities. Certain other observations and directions were also made in the said order which will be noticed at a later stage. 8. Another petition being Special Criminal Application No.531/2005 came to be filed by Kanubhai Ratilal Parmar, another brother of Vinubhai Ratilal Parmar seeking transfer of investigation of C.R. No. I 131/2005 registered at Sabarmati police station. 8.1 It appears that at one stage, the investigation of the case was handed over to DCP(Traffic) Shri Vikas Sahay on 21.4.2005. However, DGP by order dated 28.4.2005 entrusted the investigation of all the three criminal SCR.A/289/2006 10/38 JUDGMENT complaints to Shri Subhash G. Trivedi, DCP, Zone-VI, Ahmedabad City. 9. Shri R.M. Solanki filed two proceedings before this Court. Criminal Misc. Application No.6742/2005 was filed by him praying for vacating ad interim order dated 4.4.2005 passed in Special Criminal Application No.445/2005. On 27.6.2005, learned Single Judge of this Court (Coram : Jayant Patel,J.) observed that earlier on 20.6.2005, the Court observed that the investigation that may be carried out shall be subject to further orders which may be passed by the Court. In view of the same, learned Judge directed that Criminal Misc. Application itself will be heard with Special Criminal Application No. 445/2005 and that the matter shall be considered along with Special Criminal Application. 9.1 Shri R.M. Solnaki had also filed Special Leave Petition No.3226/2005 before the Hon'ble Supreme Court challenging the ad interim order dated 4.4.2005 passed in Special Criminal Application No. 445/2005. The same however came to be withdrawn on 23.1.2006. 9.2 Shri R.M. Solanki has also filed Special Criminal Application No.289/2006 in which as noted earlier, it is prayed inter-alia that the investigation of the cases against SCR.A/289/2006 11/38 JUDGMENT Vinubhai Parmar be handed over to CBI. 10.It appears that on 13.2.2006, Shri S.G. Trivedi, investigating the case filed a report before the Court of the Judicial Magistrate First Class, Ahmedabad Rural stating that Shri R.M. Solanki is required to be implicated in the case of kidnapping and filing of a false case under NDPS Act. 11.To cut the long story short, it may be noted that eventually Shri R.M. Solanki was arrested by the police, was refused regular bail by the Sessions Court. He was however, ultimately granted bail by this Court (Coram: Akshay.H. Mehta,J.) by order dated 20.6.2006 passed in Criminal Misc. Application No.4985/2006. Apparently, the State of Gujarat has filed Special Leave Petition before the Hon'ble Supreme Court seeking cancellation of bail granted by High Court to Shri. R.M. Solnaki. 12.It appears that Shri S.G. Trivedi submitted report to the Special Sessions Court, Junagadh requesting 'B' Summary in the NDPS case against Shri Vinubhai Ratilal Parmar and same was granted by the Special Sessions Court by order dated 22.3.2007. 13.From the above, it can be seen that two contrasting versions have been put-forth by two SCR.A/289/2006 12/38 JUDGMENT rival parties. On behalf of Shri Vinubhai Ratilal Parmar, two petitions have been filed by his brothers namely Special Criminal Applications Nos. 445/2005 and 531/2005. The stand of the petitioners in the said petition is that Shri Vinubhai Ratilal Parmar has been falsely implicated in the NDPS case and under the Arms Act and in fact he was kidnapped and illegally confined. It is the case of the petitioners that this was so done at the behest of Shri R.M. Solanki who is highly placed officer in the police department who had grudge against Shri Vinubhai Ratilal Parmar. 14.On the other hand, Shri R.M. Solanki has pleaded before the Court that cases against Shri Vinubhai Ratilal Parmar were genuine; that at one stage investigation revealed involvement of Shri Vinubhai Ratilal Parmar in the said offence; that Shri. R.M. Solanki has no role to play in falsely implicating Shri Vinubhai Ratilal Parmar in the said case and due to mala fide intention and through abuse of powers, it is Shri. R.M. Solanki who is being targeted to destroy his service record. 15.Basically, though both sides seek transfer of investigation of the criminal cases, there is a vital difference in the essence of the prayers made. As noted this Court by order dated 4.4.2005 passed in Special Criminal Application SCR.A/289/2006 13/38 JUDGMENT No. 445/2005 by way of interim measure directed that the investigation of the cases against Shri Vinubhai Ratilal Parmar be transferred from Shri R.M. Solanki and be handed over to a higher officer. Pursuant to this order, certain consequential orders have been passed by DIG. Investigation has also been carried out by Shri S.G. Trivedi. On the other hand, Shri R.M. Solanki has contended that the interim order dated 4.4.2005 be vacated. It is also contended that the investigation carried out by Shri Trivedi is mala fide. Shri R.M. Solanki therefore, has sought the prayer for handing over the investigation to CBI. 16.Learned Senior advocate Shri Y.N.Oza appearing with Shri P.S. Champaneri for Shri R.M. Solanki however, clarified that the petitioner Shri R.M.Solanki does not insist on investigation by CBI alone and if any independent agency or officer is directed to carry out the investigation, the petitioner would be satisfied. 17.Before recording the contentions and legal submissions, it would be necessary even if this results into some duplication to take note of some of the orders passed by different Courts in different proceedings having bearing on these petitions. SCR.A/289/2006 14/38 JUDGMENT 18.As noted earlier, in Special Criminal Application No. 445/2005, filed by Shri Bhanubhai Ratilal Parmar, learned Single Judge of this Court on 4.4.2005 taking note of serious allegations made by the petitioner, while issuing notice of final disposal gave directions for transfer of the investigation. The exact directions need to be noted which are as under : “6(i) The Court is of the view that the allegations made against Mr.R.M.Solanki, Dy.S.P., A.T.S., Ahmedabad, are serious in nature and this officer probably is authorized to operate in the entire State. So the Director General of Police, State of Gujarat, shall see that under the direct supervision and monitoring of the highest officer dealing with the A.C.B. cases i.e. Director of A.C.B. be entrusted with the complaints and allegations made by the petitioner-Bhanubhai Parmar against Mr.R.M. Solanki, Dy.S.P., A.T.S., Ahmedabad, are investigated thoroughly. 6(ii) The Director General of Police shall also see that the investigation of the crime in question registered with A.T.S. Police Station, Ahmedabad, is taken from the said Mr.R.M. Solanki and the investigation of the same is handed over to the officer not below the rank of D.S.P. and especially from the department which has no direct link with the A.T.S. operation and activities. 6(iii) If any other or new complaint is registered against Vinodbhai, then such complaint may not be entrusted for investigation either to the said Mr.R.M. Solanki or to any officer who is at present and never in past remained subordinate to Mr.Solanki in the department and the same be handed over to any independent officer not below the rank of Dy.S.P. and senior in cadre to Mr.R.M. Solanki that the Director General of Police may decide. 7(i) If possible, the statements of accused-Vinodbhai Ratilal Parmar, present petitioner and the persons close to these two brothers, be recorded at the earliest by a very responsible officer and the details may be gathered as to the activities done by the accused-Vinodbhai Ratilal Parmar and on behalf of Mr.R.M. Solanki and other senior police or other Government officials. 7(ii) Certain cellular phone numbers also have been referred to in the application and the complaint; and it would be advisable to have the print outs of relevant SCR.A/289/2006 15/38 JUDGMENT cellular phones including the cellular phone number and land line telephone number of Mr.R.M. Solanki, if he is having any cellular phone either in personal capacity or in the capacity of a Government officer, also be obtained. The Registry with a view to help the Director General of Police shall tender xerox copy memo of petition along with the annexures and other documents, in two sets. The respondent-State may also enlarge the scope of investigation, if more police officers are found involved. 8. The Director General of Police shall see that the progress made by his machinery is reported to this Court and such report is made available to the Court at regular intervals. The first progress report be tendered to the Court on 29th April, 2005. Notice to Mr.R.M. Solanki be sent through the Commissioner of Police, Ahmedabad City, and the others be served through the Court.” 18.1 On 20.6.2006, Learned Single Judge of this Court directed that after the investigation is completed affidavit may be filed by the concerned officer investigating the case and such investigation shall be subject to further orders which may be passed by this Court in the petition. 18.2 On 27.6.2005, learned Single Judge of this Court passed an order in Criminal Misc. Application No.6742/2005 in Special Criminal Application No.445/2005 filed by Shri R.M. Solanki seeking vacating of interim order dated 4.4.2005 to the effect that earlier the Court had made investigation subject to orders that may be passed by the Court and that therefore, no orders are required to be passed in the application of Shri R.M. Solanki at that stage SCR.A/289/2006 16/38 JUDGMENT and that Criminal Misc. Application be heard along with Special Criminal Application No. 445/2005. 19.As noted earlier, Shri R.M. Solanki also approached the Apex Court challenging the interim order dated 4.4.2005 passed in Special Criminal Application No. 445/2005 by filing S.L.P.(Crime) 3226/2005 which however came to be withdrawn on 23.1.2006 in following manner : “Order. Heard learned advocate for the parties. After some arguments, learned counsel appearing on behalf of the petitioners is permitted to withdraw the petition. The Special Leave Petition is, accordingly, disposed of. “ 20.By order dated 20.6.2006 passed in Criminal Misc. Application No. 4985/2006, Learned Single Judge of this Court granted bail to Shri R.M. Solanki. In the said order, learned Judge took note of an affidavit filed by the officer, Shri S.K. Saikia which is a part of the proceedings in Special Criminal Application No. 445/2005 in which it was stated inter-alia that Shri Vinubhai Ratilal Parmar prima facie was involved in serious cases of NDPS Act and Arms Act. It was noted that this affidavit was not tendered and after the investigation was taken over by Shri S.G. Trivedi another affidavit SCR.A/289/2006 17/38 JUDGMENT containing contrary averments was filed. Learned Judge opined that explanation given by learned APP that the earlier affidavit was prepared by Shri R.M. Solanki and Shri Saikia has merely signed on doted lines, is very difficult to accept. It was observed that even if such an explanation is accepted it would show that the officer has behaved in an irresponsible and indifferent manner. On this and other ground, learned Judge was pleased to grant regular bail to Shri R.M. Solanki. 21.Learned senior advocate Shri Yatin Oza with Shri P.S. Champaneri appeared and argued for Shri R.M. Solanki. 21.1 As already noted, it has been clarified before me that Shri R.M. Solanki does not insist on investigation being handed over to CBI but opposes the investigation carried out by Shri S.G. Trivedi on the various grounds including on the ground of mala fide. 21.2 It was contended that entire investigation was handed over to Shri S.G. Trivedi under an interim order passed by this Court on 4.4.2005 in Special Criminal Application No. 445/2005. Such interim order is subject to final outcome of the petition. In any case, this Court had clarified in the order dated 20.6.2005 passed in Special Criminal SCR.A/289/2006 18/38 JUDGMENT Application No. 445/2005 that the investigation that may be carried out shall be subject to further orders which may be passed by the Court. This was reiterated in a subsequent order dated 27.6.2005 passed in Criminal Misc. Application No. 6742/2005. It was therefore, contended that even if substantial investigation may have been carried out, the petitioner cannot be precluded from pointing out that the interim order itself requires to be recalled and Special Criminal Application No. 445/2005 also deserves to be dismissed. 21.3 It is also contended that merely because SLP was filed before the Apex Court and same was withdrawn, would not mean that the petitioner is precluded from opposing Special Criminal Application No.445/2005. 21.4 Learned advocate Shri Y.N. Oza in addition to taking me through entire material on record placed much stress on affidavits of Shri Saikia Special Inspector General of Police(Operation) ATS Gujarat State. My attention was drawn to a letter dater 8.4.2005 addressed to the Director General of Police in which it is stated inter-alia that to ensure that discharge of the accused in Narcotics case being C.R. NO.II 3/2005 and case under the Arms Act being C.R. No.III 3/2005, the movement has been carried out by the brother of the accused SCR.A/289/2006 19/38 JUDGMENT and his advocate different places and representation is being made that Shri R.M. Solanki has filed false case. It is stated that this representation is totally false. 21.5 My attention was also invited to the para-wise remarks dated 27.4.2005 submitted by the Government to the Chief Public Prosecutor, Gujarat State in Special Criminal Application No.445/2005 signed by Shri Saikia which is found at page 193 in Special Criminal Application No. 445/2005. In the same remarks, opposing the petition it is contended inter-alia that the allegations made by the petitioner are not correct. Shri R.M. Solanki is not the final authority in the ATS. Brother of the petitioner is involved in serious crime of NDPS Act and Arms Act. My attention was also invited to letter dated 21.6.2005 written by Shri Saikia to the learned Government Pleader, Gujarat State requesting the learned Government Pleader to return the affidavit sworn by Shri Saikia in Special Criminal Application No. 445/2005 to enable him to include more facts related to