REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRIMINAL) NO. 149 OF 2012 Amitbhai Anilchandra Shah Versus The Central Bureau of Investigation & Anr. WITH WRIT PETITION (CRIMINAL) NO. 5 OF 2013 .... es!ondent(s) .... Petitioner(s)

JUDGMENT
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
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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 Bai vs. 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

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before the Court of ;udicial .agistrate +irst Class6 <anta <istrict6 Banas2antha6 0u1arat6 the !etitioner herein *as arra/ed as A,". +urther6 due to lac2 of 1urisdiction6 the

charge sheet *as !resented before the ' nd Additional Chief ;udicial .agistrate6 (+irst Class)6 (CBI Court $o. ")6

Ahmedabad6 0u1arat. )) Being aggrieved b/ the fresh +I dated '&.(%.'("" and

charge sheet dated (%.(&.'("'6 the !etitioner herein has filed the above said *rit !etition on the ground of it being violative of his fundamental rights under Articles "%6 '( and '" of the Constitution and contrar/ to the directions given in Narmada Bai (supra). W($! P)!$!$*+ (C($&$+ ,) N*. 5 *- 2013. %) Sangiah Pandi/an a12umar IPS,*ho *as arra/ed as A,)

in the charge sheet dated (%.(&.'("' has filed the above said *rit !etition !ra/ing for similar relief as sought for in #rit Petition (Crl.) $o. "%& of '("'. Since the grievance of the above,said !etitioner is similar to that of the !etitioner in #.P. (Crl.) $o. "%& of '("'6 there is no need to traverse those details once again.

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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$#/0##$*+. :) 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 +I be treated as su!!lementar/ chargesheet in first C $o. %S of '("( so that his fundamental

being $o.

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

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4:5. =e ver/ much relied on !ara )5 of the said 1udgment *hich holds as under>
?@...erel/ because t*o se!arate com!laints had been lodged6 did not mean that the/ could not be clubbed together and one charge sheet could not be filedA

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 CBIBs 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 Cthe CodeB). 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

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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

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investigating authorit/ is dut/ bound to register an +I thereafter6 initiate investigation. "") .r. a*al6 learned Additional Solicitor

and6

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.

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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 occurrence. *as onl/ in res!ect of the same incident or 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

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*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 0u1arat. a1asthan and

=o*ever6 Sohrabuddin remained elusive and It *as6 therefore6

be/ond the reach of the 0u1arat Police.

that the accused Amit Shah (!etitioner herein)6 <.0. VanDara6 S. Pandi/an entered into a a12umar6 <inesh .an and others to abduct and murder

cons!irac/

Sohrabuddin.

Accordingl/6 <.0. VanDara6 *ith the aid of

Abha/ Chudasma6 S.P. Valsad had Tulsiram Pra1a!ati6 an associate of Sohrabuddin6 in order to trace Sohrabuddin. #hilst giving such directions6 <.0. VanDara also assured Tulsiram Pra1a!ati that he *ould ensure safe !assage for him as he *ould be im!licated in some !ett/ cases. It *as after this assurance from <.0. VanDara and Abha/ Chudasma that Tulsiram Pra1a!ati agreed to hel! them in tracing and locating Sohrabuddin. Accordingl/6 Tulsiram Pra1a!ati6 in

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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/

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*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!atiBs 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 <0P6 CI<. It is further !ointed

out that the said letter of Shri V.F. Solan2i containing the note of .s. 0eetha ;ohri *as not found in the official file. In its !lace6 a fabricated note dated (4.(".'((5 along *ith a noting of Shri 0.C. aiger dated (:-(9.(".'((5 *as found in

the file in *hich it *as recorded as under>,

?")(d) To go to Gdai!ur to interrogate accused S/lvester and Tulsi Pra1a!ati (both being allegedl/ !rimar/ *itnesses in the case) of *hom Tulsi *as recentl/ encountered at B3 b/ border range.A

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"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+!(0#!&)+! *- $+%)#!$1 !$*+ !* !") CBI $+ ()#2)/! *I#! FIR. "5) Initiall/6 0u1arat !olice conducted investigation into the 2illing of t*o individuals and filed charge sheet in the +I

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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 an offence and investigation b/ CBI into the alleged encounter of one Tulsiram6 a close associate of Sohrabuddin6 *ho *as allegedl/ 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 Tulsiram Pra1a!ati had been established in this case. The third !erson *ho *as abducted *as not to be the said Tulsiram Pra1a!ati. (iii) Hn ('.(9.'((56 the seventh action ta2en re!ort *as filed6 *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*hereA. =o*ever6 it a!!ears that the literal translation of the charge,sheet in 0u1arati *ould mean that he *as ?an/ho* made to disa!!earA.

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(v) It also a!!ears from the charge,sheet that it identifies the third !erson *ho *as ta2en to <isha farm as 3alimuddin. But it does not contain the details of *hat ha!!ened to him once he *as abducted. The !ossibilit/ of the third !erson being Tulsiram Pra1a!ati cannot be ruled out6 although the !olice authorities or the State had made all !ossible efforts to sho* that it *as not Tulsiram. (vi) Similarl/6 it *as submitted that non,identification of the third !erson *ho *as abducted along *ith Sohrabuddin and 3ausarbi *ould also not affect the !rosecution case.A

"9) After eE!ressing and arriving at such a conclusion6 this Court concluded that ?the !ossibilit/ of the third !erson being Tulsiram Pra1a!ati cannot be ruled out and that his 2illing could be an attem!t to destro/ a human *itnessA and after sa/ing so6 transferred the investigation to the CBI. Gltimatel/6 this Court directed the CBI ?to unearth the larger cons!irac/A. The follo*ing categorical observations and

directions in !aras :46 :: and 9' are relevant *hich are noted hereunder>,
?:4. It also a!!ears from the charge,sheet that it identifies the third !erson *ho *as ta2en to <isha farm as 3alimuddin. But it does not contain the details of *hat ha!!ened to him once he *as abducted. The !ossibilit/ of the third !erson being Tulsiram Pra1a!ati cannot be ruled out6 although the !olice authorities or the State had made all !ossible efforts to sho* that it *as not Tulsiram. In our vie*6 the facts surrounding his death evo2es strong sus!icion that a deliberate attem!t *as made to destro/ a human *itness. ::. So far as the call records are concerned6 it *ould be evident from the same that the/ had not been anal/sed

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!ro!erl/6 !articularl/ the call data relating to three senior !olice officers either in relation to SohrabuddinIs case or in Pra1a!atiIs 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 and name. $o 1ustification can be found for the Investigating Hfficer .s ;ohri *al2ing out of the investigation *ith res!ect to Tulsiram Pra1a!atiIs death *ithout even informing this Court. 9'. Accordingl/6 in the facts and circumstances even at this stage the !olice authorities of the State are directed to hand over the records of the !resent case to the CBI Authorities *ithin a fortnight from this date and thereafter the CBI Authorities shall ta2e u! the investigation and com!lete the same *ithin siE months from the date of ta2ing over the investigation from the State !olice authorities. The CBI Authorities shall investigate all as!ects of the case relating to the 2illing of Sohrabuddin and his *ife 3ausarbi including the alleged !ossibilit/ of a larger cons!irac/. The re!ort of the CBI Authorities shall be filed in this Court *hen this Court *ill !ass further necessar/ orders in accordance *ith the said re!ort6 if necessar/. #e eE!ect that the Police Authorities of 0u1arat6 Andhra Pradesh and a1asthan shall coo!erate *ith the CBI Authorities in conducting the investigation !ro!erl/ and in an a!!ro!riate manner.A

"&) 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/

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this Court in the above 1udgment *as true and filed charge sheet-sA. '() Pursuant to the decision in "u#a##uddin Shei$h (supra) dated "'.(".'("(6 the CBI filed a fresh +I 6 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

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Pra1a!ati is also a !art of the ver/ same cons!irac/6 *hich are as under>,
?""@@Shri $a/muddin6 brother of Shri Sohrabuddin had gone 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/ also follo*ed the luEur/ bus. About "4 to '( 2ilometers from the hotel6 on the instructions of Shri a12umar Pandi/an (A, ') their vehicles overtoo2 the luEur/ bus and sto!!ed the bus. T*o !olice !ersons entered into the bus and as2ed the driver to s*itch on the light. #hile the third !olice !erson *as having torch in his hand remained near the door of the bus. The !olice !ersons told there is !olice chec2ing. All the three !olice !ersonnel *ere in civil dress. The/ !ic2ed u! Tulsiram Pra1a!ati *ho *as sitting in the bus. After sometime6 the/ again came into bus and !ic2ed u! Sohrabuddin. #hen Sohrabuddin *as made to get do*n from the bus6 3ausarbi also got do*n@.. '(. Investigation further disclosed that Shri Sohrabuddin and Tulsiram Pra1a!ati abducted b/ !olice !art/ *ere made to sit in the Jualis *hile 3ausarbi *as made to sit in one of the Tata Sumo vehicles along *ith Santram Sharma (A,"")@..All of them reached Valsad *here at one big hotel6 both the Tata Sumo Vehicles *ere sto!!ed and the/ too2 lunch. Tulsiram Pra1a!ati *as shifted to another vehicle *hich *as brought b/ a1asthan Police !ersonnel. The/ too2 him straight to Gdai!ur *here he *as 2e!t in illegal custod/ for five da/s. Thereafter6 he *as sho*n arrested b/ a team lead b/ Shri Bhan*ar Singh =ada6 Ins!ector-S=H P.S. =athi!ole6 Gdai!ur a1asthan from Bhil*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 to Ahmedabad *here he *as !roduced before accused <.0. VanDara (A,"). The/ as2ed him to ma2e Sohrabuddin available before them as there *as lot of !olitical !ressure. Tulsiram Pra1a!ati *as assured that Sohrabuddin *ould get a safe !assage and at the most Sohrabuddin *ould be !ut in 1ail so as to 2ee! him a*a/ from glare for ),% months.

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$o !h/sical harm *ould be done to Sohrabuddin. =aving got the assurance from accused <.0. VanDara (A,")6 Tulsiram Pra1a!ati hel!ed accused Abha/ Chudasama (A, "4) in trac2ing do*n Sohrabuddin.A

'') A!art from the above s!ecific stand6 it is also relevant to !oint out that the CBI filed su!!lementar/ chargesheet dated ''."(.'("( in the first +I charges>,
?Investigation has also revealed that after the 0u1arat Police Hfficers had eliminated Shri Tulsiram Pra1a!ati on '9."'.'((: in a fa2e encounter6 Smt. 0eeta ;ohri6 the then I0P !re!ared a note sheet on (4.(".'((: mentioning therein inter alia the !ermission to go to Gdai!ur to interrogate the aforesaid t*o associates of Sohrabuddin viD.6 S/lvester and Tulsiram Pra1a!ati6 of *hom6 she mentioned that Tulsriram Pra1a!ati *as encountered b/ the Police@.A

*hich made the follo*ing

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

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chargesheet Pra1a!ati.

dated

(%.(&.'("'

for

2illing

of

Tulsiram

')) 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!atiBs 2illing is a !art of the same series 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 one trial under Section ''( of the Code. (iv) CBI be given formal !ermission to investigate Tulsiram Pra1a!ati 2illing as ?further investigationA in the first +I filed b/ CBI *hich investigation *as going on. (v) If CBI is not formall/ given investigation of Tulsiram Pra1a!ati6 !rosecution *ould face 8uestions of ?issue esto!!elA & ? es,1udicataA.

In the said affidavit6 the CBI even !ra/ed for ?further investigationA 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 =onBble Su!reme Court (.r. ;ustice Aftab Alam and .r. ;ustice ... Fodha) has granted three more months to com!lete the investigation. =ence6 it is !ra/ed that orders for transferring Tulsiram Pra1a!ati case to the CBI ma/ be issued for eE!editious com!letion of investigation.A

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'%) 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!atiBs encounter ?to com!lete the investigationA 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 investigationA so as to enable it to ?com!lete the investigation in first +I A filed b/ the CBI6 i.e.6 +I dated (".('.'("( b/ investigating Tulsiram Pra1a!ati In this regard6 the order of this Court dated

encounter.

"'.(9.'("( relied u!on b/ the CBI is relevant and the same is 8uoted hereunder>, ?O(3)(
?In !ursuance of the order !assed b/ this Court on ;anuar/ "'6 '("(6 the CBI has submitted a status re!ort. In the status re!ort6 it is stated that the/ have been carr/ing on investigations as directed b/ this Court6 but on certain as!ects of the matter the investigation remain incom!lete. A !ra/er is6 therefore6 made to grant them siE months further time to com!lete the investigation. It is further !ra/ed that three other cases that *ere registered in connection *ith the alleged esca!e of Tulsiram Pra1a!ati from !olice escort and his death in a !olice encounter ma/ also be transferred for investigation to the CBI because the 20
Page 20

death of Tulsiram Pra1a!ati in the alleged encounter formed an inse!arable !art of the investigation *hich is entrusted to the CBI b/ this Court. Toda/6 .r. ;ethmalani6 senior advocate6 a!!eared on behalf of one of the accused,Amit Shah. .r. ;ethmalani strongl/ criticiDed the manner of investigation b/ the CBI and alluded to some larger !olitical cons!irac/. =e submitted that he !ro!osed to ta2e ste!s of recall-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 handed over to the CBI. Toda/6 *e can !roceed onl/ on the basis of the !revious order !assed on ;anuar/ "'6 '("( b/ *hich the CBI *as directed to investigate all as!ects of the case6 relating 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 from the State !olice and to file its re!ort to this Court *hen this Court *ould !ass further necessar/ orders in accordance *ith the said re!ort6 if necessar/. As on date6 the investigation ordered to be made remains incom!lete. In continuation of the !revious order6 therefore6 the time allo*ed to the CBI to com!lete the investigation is eEtended b/ three months from toda/6 at the end of *hich the/ *ould file a status re!ort before this Court. Put u! on recei!t of the status re!ort.A

'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

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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!atiBs 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. <uring the investigation of Sohrabuddin and 3ausarbi matter it has emerged that there are clear circumstances indicating that the encounter of Tulsiram Pra1a!ati on '9."'.'((: *as done in order to eliminate him as he *as the 2e/ *itness in the criminal cons!irac/ of the abduction and 2illing of Sohrabuddin and 3ausarbi b/ the !o*erful and influential accused !ersons. The CBI investigation has been conducted into this as!ect in vie* of the follo*ing observations of the =onBble Su!reme Court in its order dated "'.(".'("(. %9. The investigation has disclosed that Tulsiram Pra1a!ati L Praful L Sameer L Babloo s-o 0angaram Pra1a!ati6 r-o Shantinagar PS $eel 0anga <istrict G11ain6 ..P. *as a close associate of Sohrabuddin. Both hailed from same G11ain district of .P and 2ne* each other since the da/s Sohrabuddin *as lodged in Sabarmati ;ail in the Arms recover/ case. Tulsiram *as *or2ing *ith him as his shar! shooter@. 4". The investigation has further revealed that Tulsiram *as !ic2ed u! b/ the Police of 0u1arat and a1asthan to trace Sohrabuddin about '( da/s !rior to the encounter of Sohrabuddin. Both Sohrabuddin and his *ife 3ausarbi *ere abducted on the information of Tulsiram. =e *as 22
Page 22

!romised b/ accused Shri <.0. VanDara (A,") and accused Shri Abha/ Chudasama (A,"4) that no !h/sical harm *ould be caused to Sohrabuddin because Sohrabuddin *as their old associate. +urther6 Tulsiram *as sho*n to have been arrested on '&."".'((4 at Bhil*ada ( a1asthan) b/ the a1asthan !olice i.e.6 after the fa2e encounter of Sohrabuddin on ':."".'((4. 4'. The investigation has further revealed that after the fa2e encounter of Sohrabuddin and murder of 3ausarbi said deceased Tulsiram Pra1a!ati 2ne* that his death *as imminent at the hands of the 0u1arat Police in connivance *ith the a1asthan Police as he *as the onl/ surviving !rime *itness to the abduction and 2illing of 3ausarbi and Sohrabuddin. The grave a!!rehensions of Tulsiram Pra1a!ati *ere eE!ressed b/ him in his a!!lications filed in the court of AC;. Cit/ ($orth) $o. "6 Gdai!ur6 on '5.(".'((: and ('.('.'((: and his letters addressed to the $ational =uman ights Commission ($= C) dated "9.(4.'((: and to the Collector6 Gdai!ur dated "".(4.'((:. In addition6 he made verbal-oral !ra/er before the =onBble Princi!al ;udge6 Ahmedabad on '9."".'((:. Hut of sheer des!eration6 he made the fervent a!!eal before the =onBble ;udge that he *ould be alleged to have sho*n as esca!ed from the !olice escort !art/ custod/ and subse8uentl/ 2illed in a fa2e encounter. True to his a!!rehension6 the !remonition came true as the events such as his alleged esca!e from the esca!e custod/ on ':."'.'((: registered *ith Ahmedabad ail*a/ PS vide C $o. '&%-'((: on '5."'.'((: and alleged fa2e encounter on '9."'.'((: registered *ith Amba1i Police Station vide C $o. ""4-'((: dated '9."'.'((:. 4%. Shri V.3. 0oda6 *ho had demitted the office of I0 of Police6 Gdai!ur on )"."(.'((4 on su!erannuation has stated during his eEamination b/ the CBI that he had received a letter in the month of $ovember '((4 addressed to him in his named cover b/ the famil/ members of Tulsiram Pra1a!ati *hich *as dul/ for*arded b/ the then .FA. The letter could not be made available to the CBI. As !er the statement of Shri 0odila6 the contents of the letter revealed that the famil/ members of Tulsiram Pra1a!ati a!!rehended that Shri Tulsiram Pra1a!ati *as illegall/ detained b/ Police and *as in their illegal custod/. The letter also revealed that the state of des!air of famil/ members of Shri Tulsiram Pra1a!ati as the/ a!!rehended 23
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death for *hich the/ immediatel/ *anted action b/ the then I0 of Police6 Gdai!ur through the !eo!le re!resentative. This is an additional corroboration that Tulsiram Pra1a!ati *as in the Police Custod/ 1ust !rior to the encounter of Sohrabuddin. This seen in con1unction *ith other evidence indicates that Tulsiram Pra1a!ati *as the !erson *ho revealed the location of Sohrabuddin to the accused !olice officers of a1asthan and 0u1arat. 44. The investigation has further disclosed that *hile lodged in Gdai!ur ;ail6 in addition to the above mentioned !ra/ers made b/ Tulsiram to the =uman ights Commission6 different courts6 he eE!lained the true fact behind the fa2e encounter of Sohrabuddin to his 1ail inmate friends. The !olice 2e!t the tele!hone number being used b/ some of the criminals inside the 1ail and outside the 1ail under interce!tion and allegedl/ had received the information that Tulsiram *as tr/ing to run a*a/ from the custod/. Both accused Shri. <inesh .$ (A,)) and I06 Gdai!ur Shri a1eev <asot sent letters for !ermission to interce!t the tele!hone numbers alleged having such information. Thereafter6 *hen Tulsiram Pra1a!ati *as brought to Ahmedabad on '9."".'((: along *ith co, accused .ohd. ADam in connection *ith Case $o. ""'%-'((% (Po!ular Builders +iring Case) in ;. Court $o. ")6 Ahmedabad6 around 4( !olice commandoes *ere detailed for the escort !art/. Hn both these occasions6 the mother6 *ife and daughter of ADam 3han accom!anied them from Gdai!ur to Ahmedabad and bac2. Fater on the !olice decided to 2ill Tulsiram and *hereas on subse8uent hearing fiEed for ':."'.'((:6 Shri Tulsiram Pra1a!ati *as deliberatel/ sent alone on '4."'.'((:. =is usual com!anion-co,accused ADam 3han *as detained in a scooter theft case. Interestingl/6 the above scooter theft case registered in Ambamata PS of Gdai!ur ( a1asthan) vide Case $o. &4-'((% *as alread/ detected6 vehicle recovered and handed over to the com!lainant in '((% itself. Thus6 foisting a case against .ohd. ADam and sending Tulsiram Pra1a!ati alone *ere to facilitate the murder of Tulsiram Pra1a!ati. It has also come into evidence that this time before leaving Gdai!ur ;ail on '4."'.'((:6 Tulsiram had eE!ressed a!!rehension of his being 2illed in an encounter. Contrar/ to the earlier t*o occasions6 this time onl/ four !olice !ersonnel *ere sent from the 1ail as his escort. Hn the *a/ bac2 from Ahmednagar to Gdai!ur6 he *as sho*n having run a*a/ 24
Page 24

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 Police had sent letter $o. ""'( dated '5."'.'((: to SP Banas2antha6 alleging that the call details of Tulsiram sho* that he is hiding some*here in Banas2antha. As !er the documents received b/ the CBI from the office of I06 Gdai!ur6 this letter *as sent through faE at around '))' hours on '5."'.'((:. As !er the tele!hone call details available6 the !hone *as not used after the evening of ':."'.'((: so there *as no reason for Gdai!ur Police to have information that Tulsiram *as hiding some*here in Banas2antha. This letter *as nothing but an attem!t to !rovide the Banas2antha !olice an o!!ortunit/ to stage, manage the encounter of Tulsiram Pra1a!ati in their district. +urther6 the available call details sho* that on '5."'.'((: accused Shri <inesh ..$. (A,)) *as constantl/ in touch *ith other accused a12umar over tele!hone till confirmation of this faE. 45. In the investigation conducted b/ the CBI6 it has clearl/ emerged that 2illing of Tulsiram Pra1a!ati *as an integral !art of the criminal cons!irac/ hatched b/ the accused arising out the same transaction. After the abduction and fa2e encounter of Sohrabuddin and 3ausarbi6 the Su!reme Court *as seiDed of the matter6 *hich had directed the State of 0u1arat to investigate in detail the above e!isode. <uring such in8uir/ ordered b/ 0u1arat 0overnment in obedience to the =onBble Su!reme Court6 it emerged that !olice officials of ATS6 Ahmedabad *ere involved in the abduction and 2illing of Sohrabuddin and 3ausarbi@.. 4&. #hen it became clear and evident that@.. (i) That Tulsiram Pra1a!ati *as the sole surviving *itness to the abduction of Sohrabuddin and his *ife 3ausarbi. (ii) That the .obile Call <etail ecords !ertaining to the case contained im!ortant !iece of evidence not onl/ against accused Shri Amit Shah (A,":)6 .inister of State (.oS)6 0overnment of 0u1arat6 but other !olice officers of 0u1arat and a1asthan6 *ho *or2ed at his behest to cover u! the fa2e encounter that 2illed Tulsiram Pra1a!ati on '9."'.'((:.

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:(. The anal/sis of .obile Call <etails for the *ee2 in *hich the !lanning and eEecution of Tulsiram Pra1a!atiBs encounter too2 !lace6 reflects furr/ of call eEchanged b/ accused Shri Amit Shah (A,":)6 .oS6 accused Shri <.0. VanDara (A,")6 <I0 Border ange6 accused Shri a12umar Pandian (A,')6 SP6 ATS6 Shri Vi!ul Agar*al6 SP6 Banas2antha and accused Shri <inesh .$ (A,))6 SP6 Gdai!ur6 a1asthan6 suggesting a sinister !lan to eliminate the sole *itness in the state,eEecuted Sohrabuddin encounter. :5. Thus6 in vie* of the aforesaid !rovision6 it is eminentl/ re8uired in the interest of 1ustice that the Tulsiram Pra1a!ati fa2e encounter case be investigated and tried along *ith Sohrabuddin fa2e encounter case as the evidence !rocured so far sho*s that Tulsiram Pra1a!atiBs encounter too2 !lace as he *as the !rime *itness to the SohrabuddinBs abduction. As such both these cold blooded murders are inter,connected6 the/ ought not to be tried se!aratel/ as it ma/ give rise to conflicting findings6 raise issues of issue esto!!els and-or res 1udicata and end u! derailing or frustrating the interest of 1ustice.A

':) As rightl/ !ointed out6 this *as the stand of the CBI !rior to !assing of the order in the decision dated (9.(%.'("" in #.P. (Crl.) $o. ""4 of '((5. As a matter of fact6 based on the above assertion of the CBI6 this Court6 in the above matter6 entrusted the investigation of Tulsiram Pra1a!atiBs 2illing also to the CBI. It is also not in dis!ute that the above eEtracted status re!orts *ere !art of record of !roceedings in #.P. (Crl.) $o. ""4 of '((5.

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'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 (Tulsiram Pra1a!ati) )9. Fearned senior counsel .r. Tulsi submitted that the case of the !rosecution is that the a!!licant is !art and !arcel of the larger cons!irac/ in the 2illing of Sohrabuddin6 his *ife and Tulsiram Pra1a!ati and also the cons!irac/ *ith regard to eEtortion of mone/.A

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

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Narmada Bai (supra). The relevant eEcer!ts are 8uoted verbatim hereunder>,
?'(g) It is the further case of the !etitioner that the deceased being a 2e/ e/e *itness to the murder of Sohrabuddin and his *ife 3ausarbi6 the team of .r. <.0. VanDara and others !lanned to do a*a/ *ith him to avoid his interrogation b/ .s. 0eeta ;ohri6 Ins!ector 0eneral of Police. =ence6 the !etitioner has !referred this !etition before this Court !ra/ing for direction to CBI to register an +I and investigate the case. (4) Stand of the CBI M res!ondent $o.'"> (a) The investigation conducted in .C. $o. %(S)-'("(6 S!ecial Crime Branch6 .umbai6 as !er the directions of this Court in its order dated "'.(".'("(6 vide #rit Petition (Crl.) $o. : of '((5 revealed that the alleged fa2e encounter of Tulsiram Pra1a!ati on '9."'.'((: *as done in order to eliminate him as he *as the 2e/ *itness in the criminal cons!irac/ of the abduction and 2illing of Sohrabuddin and 3ausarbi b/ the !o*erful and the influential accused !ersons@.. (c) The murder of Tulsiram Pra1a!ati too2 !lace on '9."'.'((:6 case *as registered on '9."'.'((: and 0u1arat CI< commenced investigation on ''.().'((5. =o*ever6 even after a la!se of ) /ears6 no action *as ta2en against an/ of the accused. As directed b/ this Court6 onl/ on the investigation of Tulsiram Pra1a!atiBs case6 the ?larger cons!irac/A *ould be established and the mandate and tas2s assigned b/ this Court to the CBI *ould be accom!lished both in letter and s!irit to*ards the goal of a fair trial6 u!holding the rule of la*. If Tulsiram Pra1a!atiBs fa2e encounter case is not transferred to the CBI for investigation6 it ma/ lead to issue-estoppel or res judicata against !rosecution. "). As !ointed out b/ the learned counsel for the !etitioner and the CBI6 the said 1udgment records that there is strong sus!icion that the Cthird !ersonB !ic2ed u! *ith Sohrabuddin *as Tulsiram Pra1a!ati. "%) Pursuant to the said direction6 the CBI investigated the cause of death of Sohrabuddin and his *ife 3ausarbi. The CBI6 in their counter affidavit6 has s!ecificall/ stated that as !er their investigation Tulsiram Pra1a!ati *as a 2e/ *itness in the murder of Sohrabuddin and he *as the Cthird

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!ersonB *ho accom!anied Sohrabuddin from =/derabad and 2illing of Tulsiram Pra1a!ati *as a !art of the same cons!irac/. It *as further stated that all the records qua Tulsiram Pra1a!atiBs case *ere crucial to unearth the ?larger cons!irac/A regarding the SohrabuddinBs case *hich des!ite being sought *ere not given b/ the State of 0u1arat. "4 vi) The CBI submitted t*o re!orts, Status e!ort $o." on )(.(5.'("( and a *ee2 thereafter6 the/ filed the charge,sheet. In !ursuance of the charge,sheet6 accused $o.":,Amit Shah *as arrested on '4.(5.'("( and released on bail b/ the =igh Court of 0u1arat on '&."(.'("(. The order releasing him on bail is sub1ect matter of challenge in SFP (Crl.) $o. &(() of '("(. The Status e!ort $o."6 filed b/ the CBI before the Bench on )(.(5.'("( informed the Court that Tulsiram Pra1a!ati *as abducted along *ith Sohrabuddin and 3ausarbi and he *as handed over to the a1asthan Police. "5. Inasmuch as the !resent *rit !etition is having a bearing on the decision of the *rit !etiton filed b/ ubabbuddin Shei2h and also the claim of the !etitioner6 the observations made therein6 !articularl/6 strong sus!icion about the Cthird !ersonB accom!anied Sohrabuddin6 it is but !ro!er to advert factual details6 discussion and ultimate conclusion of this Court in ubabbuddin Shei2hBs case. In #rit Petition $o. : of '((56 ubabbuddin Shei2h !ra/ed for direction for investigation b/ the CBI into the alleged abduction and fa2e encounter of his brother Sohrabuddin b/ the 0u1arat Police Authorities and also !ra/ed for registration of an offence and investigation b/ the CBI into the alleged encounter of one Tulsiram Pra1a!ati6 a close associate of Sohrabuddin6 *ho *as allegedl/ used to locate and abduct Sohrabuddin and his *ife 3asurbi6 and *as thus a material *itness against the !olice !ersonnel. "&) It is clear that the above 1udgment records that there *as a strong sus!icion that the Cthird !ersonB !ic2ed u! *ith Sohrabuddin *as Tulsiram Pra1a!ati. It *as also observed that the call records of Tulsiram *ere not !ro!erl/ anal/Ded and there *as no 1ustification for the then Investigation Hfficer M .s. 0eeta ;ohri to have *al2ed out of the investigation !ertaining to Tulsiram Pra1a!ati. The Court had also directed the CBI to unearth ?larger cons!irac/A regarding the SohrabuddinBs murder. In such circumstances6 *e are of the vie* that those observations 29
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and directions cannot lightl/ be ta2en note of and it is the dut/ of the CBI to go into all the details as directed b/ the Court. ')) If *e anal/De the allegations of the State and other res!ondents *ith reference to the materials !laced *ith the stand ta2en b/ the CBI6 it *ould be difficult to acce!t it in its entiret/. 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 one series of acts6 so connected together as to form the same transaction under Section ''( of the Cr.P.C. As rightl/ !ointed out b/ the CBI6 if t*o !arts of the same 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 that there is substantial material alread/ on record *hich ma2es it !robable that the !rime motive of elimination of Tulsiram Pra1a!ati *as that he *as a *itness to abduction of Sohrabuddin and 3ausarbi. )5)@..In vie* of various circumstances highlighted and in the light of the involvement of !olice officials of the State of 0u1arat and !olice officers of t*o other States6 i.e. Andhra Pradesh and a1asthan6 it *ould not be desirable to allo* the 0u1arat State Police to continue *ith the investigation6 accordingl/6 to meet the ends of 1ustice and in the !ublic interest6 *e feel that the CBI should be directed 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.

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'&) After the investigation of the second +I 6 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 .A The follo*ing stand of the CBI in the chargesheet dated (%.(&.'("' are also relevant *hich are as under>,
?'@.The investigation established that it *as in furtherance of a criminal cons!irac/ b/ the !rinci!al accused !ersons that Sohrabuddin *as abducted and then murdered b/ sho*ing it off as an encounter and further for the !ur!ose of screening themselves from the legal conse8uences of their crime6 the accused caused the disa!!earance of material *itnesses to the !ivotal fact of abduction of Sohrabuddin b/ murdering them6 first his *ife6 3auserbi and then Tulsiram Pra1a!ati *ho *as accom!an/ing Sohrabuddin and his *ife 3ausarbi at the time the/ *ere abducted6 and6 *ho had in fact facilitated his abduction at the behest of accused <.0. VanDara (A,') @.. %. Investigation of C %(S)-'("(-SCB-.umbai disclosed that the third !erson *ho *as abducted along *ith Sohrabuddin and 3ausarbi *as Tulsiram Pra1a!ati. The investigation further disclosed that he *as a material *itness-e/e,*itness to the abduction of Sohrabuddin and his *ife and the same *as *ithin the 2no*ledge of accused Amit Shah (A,")6 <.0. VanDara (A,')6 S. Pandian a12umar (A,)) and <inesh ..$. (A,%) and others.

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:.%@.In the meantime6 in accordance *ith his clandestine agreement *ith 0u1arat Police6 Tulsiram Pra1a!ati informed them in advance about the !lan of Sohrabuddin to travel to Sangli from =/derabad. :.9 In !ursuance of the criminal cons!irac/ to screen themselves from the legal conse8uences of the crime6 the accused acted in concert *ith each other to 2ee! Tulsiram Pra1a!ati6 a significant material e/e *itness to the abduction of Sohrabuddin and 3ausarbi b/ the accused !olicemen of 0u1arat !olice under their continuing control and be/ond the reach of others. Accordingl/6 <inesh ..$. (A,%)6 the then SP Gdai!ur6 *ho had also !artici!ated in the murder of Sohrabuddin on ':."".'((46 ensured b/ directing a1asthan Police to detain Tulsiram Pra1a!ati on the ver/ same da/ i.e.6 ':."".'((4 for achieving the common ob1ect of 2ee!ing Tulsiram Pra1a!ati under their control. :.") Hn (9.('.'((:6 Tulsiram Pra1a!ati *as brought from Central ;ail6 Gdai!ur to G11ain6 .adh/a Pradesh. #hen he met $armada Bai and Pa*an 3umar Pra1a!ati6 he told them that he *as under severe stress because he a!!rehended that the 0u1arat and a1asthan Police *ould 2ill him in a false encounter. =e also confessed to them that 0u1arat Police had used him for tracing and abducting Sohrabuddin and his *ife. =e had also eE!ressed his a!!rehension that the !olice *ould 2ill him because he *as a *itness to the abduction of Sohrabuddin and his *ife 3ausarbi. :.':@..#ith the ob1ect of shielding themselves from the grave im!lications of abduction and murder of Sohrabuddin and his *ife 3ausarbi6 the accused eE!edited the !ace of their criminal cons!irac/ as aforesaid to abduct and murder Tulsiram Pra1a!ati as soon as !ossible. :.)%@..during the relevant !eriod to sho* that the/ *ere acting in concert *ith each other in furtherance of the criminal cons!irac/ as aforesaid to murder Tulsiram Pra1a!ati *ho *as no longer under their control and further *ith the efforts being made b/ Ins!ector V.F. Solan2i to eEamine him and record his statement *ith regard to the abduction of Sohrabuddin *ere anEious to eE!edite the criminal cons!irac/ to*ards its culmination !oint.A

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:.4"@.This establishes the fact that the countr/ made *ea!on *as !lanted to cover u! the murder of Tulsiram Pra1a!ati in !ursuance of a criminal cons!irac/ s!anning more than a /ear and to sho* it as the result of a shootout-an encounter. :.4%@..for !artici!ating in the criminal cons!irac/ as aforesaid and ta2ing it to*ards its culmination !oint b/ murdering Tulsiram Pra1a!ati@.. :.:'@..b/ so doing had intentionall/ !rovided the re8uisite time needed b/ the co,accused to ta2e the necessar/ efforts to cause disa!!earance of human *itness Tulsiram Pra1a!ati to their crime of abduction of Sohrabuddin and his *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 in furtherance of a criminal cons!irac/ as aforesaid made all attem!ts to delin2 Tulsiram Pra1a!ati case from the Sohrabuddin fa2e encounter case to establish that the third !erson *ho traveled *ith Sohrabuddin and 3ausarbi in the bus in the night of ''-')."".'((4 and *as abducted *as somebod/ 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 had 2no*ledge that the third !erson *as Tulsiram Pra1a!ati as made 2no* to her b/ her Investigating Hfficer V.F. Solan2i@..A

)() The above details mentioned in the chargesheet dated (%.(&.'("' clearl/ sho* that *hat the CBI has conducted is mere Cfurther investigationB 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

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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 Csu!!lementar/ chargesheet in the first +I B. L)1 , #2)/!# #)/*+3 FIR . # !* 2)(&$##$4$,$!5 -$&2)(&$##$4$,$!5 *-

)") $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
Page 34

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 Cin accordance *ith la*B . )') 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 !rovided in Section "4: or "45 CrPC on the basis of entr/ of the first information re!ort6 on coming to 2no* of the commission of a cogniDable offence. Hn com!letion of investigation and on the basis of the evidence collected6 he has to form an o!inion under Section ":& or "5( CrPC6 as the case ma/ be6 and for*ard his re!ort to the .agistrate concerned under Section "5)(') CrPC. =o*ever6 even after filing such a re!ort6 if he comes into !ossession of further information or material6 he need not register a fresh +I N he is

35
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em!o*ered to ma2e further investigation6 normall/ *ith the leave of the court6 and *here during further investigation he collects further evidence6 oral or documentar/6 he is obliged to for*ard the same *ith one or 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 the scheme of the !rovisions of Sections "4%6 "446 "4:6 "456 ":'6 ":&6 "5( and "5) CrPC onl/ the earliest or the first information in regard to the commission of a cogniDable offence satisfies the re8uirements of Section "4% CrPC. Thus there can be no second +I and conse8uentl/ 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. Hn recei!t of information about a cogniDable offence or an incident giving rise to a cogniDable offence or offences and on entering the +I in the station house diar/6 the officer in charge of a !olice station has to investigate not merel/ the cogniDable offence re!orted in the +I but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more re!orts as !rovided in Section "5) CrPC. '5. A 1ust balance bet*een the fundamental rights of the citiDens under Articles "& and '" of the Constitution and the eE!ansive !o*er of the !olice to investigate a cogniDable offence has to be struc2 b/ the court. There cannot be an/ controvers/ that sub,section (9) of Section "5) CrPC em!o*ers the !olice to ma2e further investigation6 obtain further evidence (both oral and documentar/) and for*ard a further re!ort or re!orts to the .agistrate. In Narang case it *as6 ho*ever6 observed that it *ould be a!!ro!riate to conduct further investigation *ith the !ermission of the court. =o*ever6 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 offences6 conse8uent u!on filing of successive +I s *hether before or after filing the final re!ort under Section "5)(') CrPC. It *ould clearl/ be be/ond the !urvie* of Sections "4% and "4: CrPC6 na/6 a case of abuse of the statutor/ !o*er of investigation in a

36
Page 36

given case. In our vie* a case of fresh investigation based on the second or successive +I s6 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 ma/ be a fit case for eEercise of !o*er under Section %9' CrPC or under Articles '':-''5 of the Constitution.A

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 +I s 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

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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$ar Sin&h vs. 'ed (ra$ash ('((%) ") SCC '&' Ba#u#hai vs. State of Gujarat & Ors. ('("() "' SCC '4% ). %. Chirra Shi)raj vs. 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 testA6 i.e.6 if an offence forming !art of the second +I arises as a conse8uence of the offence alleged then offences covered b/ both the +I s are *ill be

in the first +I

the same and6 accordingl/6 the second +I im!ermissible in la*.

In other *ords6 the offences

covered in both the +I s 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

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Page 38

!articular6 C. Muniappan (supra) as *ell as in Chirra Shi)raj (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 <ecember6 '((: in a fa2e encounterN (ii) The alleged fa2e encounter of Tulsiram Pra1a!ati *as a conse8uence of earlier false encounter of Sohrabuddin and 3ausarbi since Tulsiram Pra1a!ati *as an e/e *itness to the abduction and

conse8uent murders of Sohrabuddin and 3ausarbiN and (iii) Tulsiram Pra1a!ati *as allegedl/ 2e!t under the control of accused !olice officers6 as a !art of the same cons!irac/6 till the time he *as allegedl/ 2illed in a fa2e encounter. In vie* of the factual situation as !ro1ected b/ the CBI itself6 the ratio laid do*n b/ this Court in C. Muniappan (supra), viD.6 merel/ because t*o se!arate com!laints had been
39
Page 39

lodged did not mean that the/ could not be clubbed together and one chargesheet could not be filed OSee T.T. Anthon (su!ra)P. )%) 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 transactionA> (i)
(ii)

Ba#ulal vs. *mperor 6 AI

"&)9 PC ")(
"&45 SC

S. S+amirathnam vs. State of Madras, AI )%(

(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
Page 40

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 *as contended that there has been mis1oinder of charges on the ground that several cons!iracies6 distinct from each other6 had been lum!ed together and tried at one trial. The Advocate for S*amirathnam6 ho*ever6 did not !ut for*ard this submission. #e have eEamined the charge carefull/ and find no ground for acce!ting the contention raised. The charge as framed6 discloses one single cons!irac/6 although s!read over several /ears. There *as onl/ one ob1ect of the cons!irac/ and that *as to cheat members of the !ublic. The fact that in the course of /ears others 1oined the cons!irac/ or that several incidents of cheating too2 !lace in !ursuance of the cons!irac/ did not change the cons!irac/ and did not s!lit u! a single cons!irac/ into several cons!iracies. It *as suggested that although the modus o!erandi ma/ have been the same6 the several instances of cheating *ere not !art of the same transaction. eliance *as !laced on the cast of Shar!ur1i Sorab1i v. Km!eror6 AI "&): Bom "4% (A) and on the 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 in the .adras case *as given before Section "'(,B *as introduced into the Indian Penal Code. In the !resent case6 the instances of cheating *ere in !ursuance of the cons!irac/ and *ere therefore !arts of the same transaction.A

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)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 case directl/ in !oint and is clearl/ to the effect that 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 to tr/ 1ointl/ several !ersons !artl/ b/ a!!l/ing the !rovisions of one clause and !artl/ b/ a!!l/ing those of another or other clauses. A large number of decisions of the different =igh Courts and one of the Priv/ Council have been considered in this case. $o doubt6 as has been rightl/ !ointed out in this case6 se!arate trial is the normal rule and 1oint trial is an eEce!tion. But *hile this !rinci!le is eas/ to a!!reciate and follo* *here one !erson alone is the accused and the interaction or intervention of the acts of more !ersons than one does not come in6 it *ould *here the same act is committed b/ several !ersons6 be not onl/ inconvenient but in1udicious to tr/ all the several !arsons se!aratel/. This *ould lead to unnecessar/ multi!licit/ of trials involving avoidable inconvenience to the *itnesses and avoidable eE!enditure of !ublic time and mone/. $o corres!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 been committed b/ several accused !ersons it ma/ be more reasonable to follo* the normal rule of se!arate trials. But here6 again6 if those offences are alleged not to be *holl/ unconnected but as forming !art of the same transaction 42
Page 42

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

%() Fearned AS0 !laced reliance on the follo*ing decisions> (i) Anju Chaudhar vs. State of %.(. & Anr.6 '("'("') Scale :"& (ii) Ba#u#hai vs. State of Gujarat ('("() "' SCC '4%

(iii) Surender !aushi$ & Ors. vs. State of %.(. & Ors.6 ;T '(") ()) SC %5' (iv) Nirmal Sin&h !ahlon vs. State of (unja# ('((&) " SCC %%" (v) "am ,al Naran& vs. State (-elhi Admn.), ("&5&) ' SCC )'' (vi) %p$ar Sin&h vs. 'ed (ra$ash & Ors. ('((%) ") SCC '&' (vii) !ari Choudhar vs. Mst. Sita -e)i & Ors. ('((') " SCC 5"%. %") In Anju Chaudhar (supra) this Court *as concerned *as not connected *ith

*ith a case in *hich the second +I

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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 test of sameness. After eE!laining +I and the

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

*hether both the +I s 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 is !ermissible. This Court

incidents-crimes6 the second +I

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Page 44

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 +I s has to be conducted. It is clear from the decision that if t*o +I s !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 +I s *hich formed the sub1ect matter of the said case *ere registered b/ three different com!lainants. T*o of the +I s consisted of cross cases inasmuch as the com!lainant of the first +I the first +I third +I *as accused in the other *hile the accused in *as the com!lainant in the second +I . The

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

com!lainants of first t*o +I s as accused !ersons. In vie* of the above !eculiar facts situation arising in the said case that the second and third +I s *ere not 8uashed b/ the =igh

45
Page 45

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 Sin&h !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 in a case *here the first +I of criminal cons!irac/. hand6 the first +I lies

does not contain an/ allegations

Hn the other hand6 in the case on

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 +I 6 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 *ould lie

Court6 in the said decision6 held that a second +I

in an event *hen !ursuant to the investigation in the first +I 6 a larger cons!irac/ is disclosed6 *hich *as not !art of
46
Page 46

the first +I . investigation

In the case on hand6 *hile entrusting the 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
Page 47

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 in the investigation of the said dated (".('.'("( and +I 6 the CBI6 after

investigating Tulsiram Pra1a!atiBs 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
Page 48

*ithdra*n *hich *as a fact *hich *eighed *ith this Court *hile delivering the 1udgment in the second case. %9) %p$ar Sin&h (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 Sin&h (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 cross +I in Tulsiram Pra1a!atiBs case is a filed in dated

or a counter com!laint to the +I and 3ausarbiBs case being +I

Sohrabuddin (".('.'("(.

%&) The ratio laid do*n in !ari Choudhar .s /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/
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Page 49

ta2e the sha!e of t*o different +I s 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 $+! $+ 4$,$!5 *- 8($! 2)!$!$*+ 0+3)( 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
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Page 50

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 (%.(&.'("'. <uring the course of argument6 *hen

this Court s!ecificall/ !ut a 8uestion to learned AS0

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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. S0&& (5. 4') a) This Court acce!ting the !lea of the CBI in

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

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!art of the same series of cogniDable offence forming !art of the first +I directed the CBI to ?ta2e overA 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 +I 6 he is em!o*ered to ma2e further investigation normall/ *ith the leave of the Court and *here during further investigation6 he collects further

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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 <iar/6 the

officer,in,charge of the !olice station has to investigate not merel/ the cogniDable offence re!orted in the +I but also

other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more re!orts as !rovided in Section "5) of

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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 +I s 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 There cannot be

information *ith regard to an/ offence. 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 .

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f)

In the case on hand6 as eE!lained in the earlier !aras6 in *as nothing but a conse8uence

our o!inion6 the second +I

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!A the investigation. g) +or vivid understanding6 let us consider a situation in

*hich .r. CAB having 2illed CBB *ith the aid of CCB6 informs the !olice that un2no*n !ersons 2illed CBB. <uring investigation6 it revealed that CAB *as the real cul!rit and C<B abetted CAB to commit the murder. As a result6 the !olice officer files the charge sheet under Section "5)(') of the Code *ith the .agistrate. Although6 in due course6 it *as discovered through further investigation that the !erson *ho abetted .r. CAB *as CCB and not C<B as mentioned in the charge sheet filed under Section "5) of the Code. In such a scenario6

uncovering of the later fact that CCB is the real abettor *ill not demand a second +I rather a su!!lementar/ charge
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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

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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. 1) to meet the ends of 1ustice.

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*+/,0#$*+. 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

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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 This Court categoricall/

court has ta2en cogniDance.

acce!ted the CBIBs !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 overA the investigation and did not grant the relief as !ra/ed6 namel/6 registration of fresh +I 6 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

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charge sheet filed on (%.(&.'("'6 in !ursuance of the second +I 6 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 +I 6 no further direction is re8uired in #rit Petition (Criminal) $o. 4 of '("). ...@@@@@.@@@@@@@@@@;. (P. SATHASI9AM) ...@....@@@@@@@@@@@@@;. (DR. B.S. CHAUHAN) $K# <KF=IN AP IF 96 '(").

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