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IN THE COURT OF SPECIAL JUDGE (C.B.I.) AT AHMEDABAD CITY CBI CRIMINAL REVISION APPLICATION NO. 1 OF 2013. Applicant: 1. CBI-SIT-GANDHINAGAR SIT-GANDHINAGAR GANDHINAGAR GUJARAT. VERSUS Opponent: 1. GIRISH LAXMAN SINGHAL AT PRESENT IN CENTRAL JAIL SABARMATI, AHMEDABAD GUJARAT. Appearance:Shri Ejazkhan, Ld.Spl.PP. for the CBI, Shri B.P.Zala, LA for the Opponent-accused. JUDGMENT 1. The revisionist u/s.397 read with Sec.401 of The Code of

Criminal Procedure, 1973 (for short "Cri.P.C.") is the Central Bureau of Investigation, SIT (Ishrat Jahan), Gandhinagar, aggrieved by the Order dated 22/02/2013 passed by the learned Additional Chief

Judical Magistrate, Court No.2 & CBI Cases, Mirzapur, Ahmedabad (for short "Additional CJM"), rejecting the police custody of the accused Shri Girish Laxman Singhal. 2. The grounds raised by the CBI against the order of the

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Additional CJM, inter-alia states that the learned Additional CJM failed to appreciate the seriousness of the heinous offence wherein four persons including 19 year old girl, were killed in an operation commanded on the scene of crime by the accused police officer in the year 2004. The learned Additional CJM did not consider the fact that after a long process of legal proceedings in the Hon'ble High Court, and the investigation by the High Court appointed Special Investigation Team (for short "SIT"), the Chairman of the SIT had lodged with the CBI this complaint of murder and related conspiracy against the police officers as per the directions of the Hon'ble High Court, and that the detailed FIR lodged by the Chairman, SIT narrates in brief the compelling evidences for the conclusion that it was a case of false encounter, and that the Hon'ble High Court had concurred with that finding at that stage for initiating the process of law against the accused police officers. 2.1 That the learned Addl.CJM failed to consider that after more

than eight years of the commission of this heinous crime, and the initial investigation controlled by the accused officers themselves, important evidence has been concealed and secreted, and that such evidences can only be discovered after the difficult, time consuming, tactful and patient interrogation of the accused. That the learned Addl.CJM failed to read the contents of the FIR regarding the fact that :(a) The accused person knows about the source of the two pistols which were planted inside the Indica car of the deceased persons and the AK 56 assault rifle planted on the body of the deceased Amjadali Rana, which sources need to be uncovered

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and investigated. (b) The weapon from which the 8 rounds were fired of 9mm ammunition recovered from the Indica car, but not matching any 9 mm weapon shown on the scene of incident, needs to be recovered. (c) The empties of 9 mm ammunition, seen on the photographs and video of the scene of incident but not seized and hidden away, need to be recovered, hiding place and mechanics are expected to be disclosed by the interrogation of the accused. (d) The place of prior illegal detention of the deceased Jeeshan Johar @ Abdul Gani and the deceased persons Ishrat Jahan and Javed @ Pranesh Pillai is to be disclosed, and the identities of persons involved in securing the illegal custody of these deceased persons, and related transactions need to be brought to light, especially in view of the widespread conspiracy leading to the commission of this crime.

2.2

The accused was the senior most police officer present on the

scene of crime, and that he commanded the whole execution, it was imperative to assign due importance to the compelling grounds, as mentioned for the grant of police remand. 2.3 That the learned Addl. CJM had erred in holding that

reasonable grounds for the grant of police remand have not been presented by the prosecution, and further holding that the grounds for remand were merely limited to contradictions between the scientific evidence and the version as per the original FIR of 2004 by one of the accused persons.

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2.4

That the learned Addl.CJM had erred in lending undue

credence to the unverified explanation of the accused that he had the huge amount of cash for buying furniture, etc. 2.5 Thereby, the CBI has prayed for considering the propriety,

legality or correctness of the order dated 22/02/2013 of the learned Addl.CJM, and further prayed to set aside the said order, and for granting the Police Custody Remand of the accused upto 06/03/2013, as prayed in the application for police custody remand.

3.

Heard the learned Special PP Shri Ejazkhan for the CBI and

the learned Advocate Shri B.P. Zala, for the opponent-accused.

4.

The learned Special APP Shri Ejazkhan for the CBI, referring

to column No.7 of the FIR No.BSI/2011/S10005 dtd.16/12/2011, stated that the opponent has been cited as accused at Sr.No.5. Referring to Col.No.12 of the FIR, he stated that the learned Addl.CJM had failed to take into consideration that the Hon'ble High Court of Gujarat at Ahmedabad in Cri.Misc.Application No.15981 of 2010 in Criminal Misc.Application No.9832 of 2010 in Special Criminal Application No.1850 of 2009 vide its order dated 1/12/2011 has directed Shri R.R.Verma, Chairman of SIT to get registered another fresh FIR with the CBI on the basis of his final (8th) Report, and it is in view of the order of the Hon'ble High Court that the FIR came to be registered with the CBI. 4.1. CR No.8/2004 was registered on 15/06/2004 on the basis of the

FIR lodged by Shri J.G.Parmar, the then Police Inspector, Crime Branch, Ahmedabad City, before the present opponent-accused, who

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was then Assistant Commissioner of Police, Crime Branch, Ahmedabad. 4.2 The Special PP for the CBI referred to para 5.5 of the FIR and

stated that the antecedents of the deceased as referred, is required to be confirmed only after the custodial interrogation of the opponentaccused. 5. The Special PP for the CBI submitted that the learned

Addl.CJM had failed to take into consideration the facts, as stated in para- 8.3, 8.4, 8.5, 9, 10,, 10.1, 11 of the FIR. He stated that one 9 mm bullet was recovered from the body of Amjad Ali and one 9mm bullet was recovered from the clothes of Isharat Jahan which do not match with two 9mm pistols recovered from the Indica car. He submitted that it clearly shows that these deceased persons had received bullet wounds from an unknown firearm. Eight empty cartridge cases of 9 mm ammunition recovered from the Indica car do not match with the two pistols recovered from the Indica car, and these empties of 9 mm also do not match with the two police weapons of 9 mm caliber used in the encounter. This shows that the police version of hearing gunshots from inside the Indica car is untrue, and also there is some fabrication to justify the FIR theory. He submitted that those officers named to have given effect to the incident as narrated in the FIR of Ahmedabad City DCB PS I-CR No.8/2004 and found to be responsible have caused the death of four deceased persons, and those are found to be culpable in further investigation in addition, have committed offences punishable under Sections 302, 364, 368, 346, 120-B, 201, 203, 204, 217, 218 of the IPC and under Sec.25(1)(e) and 27 of the Arms Act.

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6.

He further submitted that during the search at the office and

residence of the accused-opponent, after the arrest made on 21/02/2013 at 4.50 hours, huge cash of Rs.3,61,500/-, six mobile phones, One SONY Tablet PC, Six pen drives, One Laptop Computer and Two USB Multimedia storage devices, storage covers, etc. were found. He submitted that in the police custody remand application before the learned Addl.CJM, the facts were mentioned and even in the application, it was stated that the complaint of the case be read as a part of the application. The learned Addl.CJM failed to take into consideration the need for the grant of police custody remand, and thereby there is a total non-application of mind by the learned Addl.CJM. 7. He submitted that this is a case of false encounter, popularly

known as "Fake encounter". The learned Addl.CJM has erred by not taking into consideration the peculiar nature of the case, complexity , involvement and the fact of the accused police official and the senior most police officials having commanded the crime. He submitted that the learned Addl.CJM ought to have considered the fact that the investigation in such matters can not be completed within 24 hours. 7.1 The accused is the Police Officer before whom the FIR was

lodged by the then PI Shri J.G.Parmar. The FIR is misleading which contains wrong details. The accused has been found to be involved in the matter. As per the complaint of Shri J.G.Parmar, the accused Shri Singal was one of the Team Member. 7.2 The Special PP Shri Ejazkhan in support of his arguments

relied upon the observations made in para-(17) of the judgment of the Hon'ble High Court in the case of CBI Vs.Avarjeetsingh

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and one, in Special Criminal Application No.1695/2012, and thus prayed for allowing the present Revision Application. 8. The LA Shri Zala, for the accused-opponent submitted that the

Court is sitting in Revision with the limited power to find the correctness of the Order of the learned Addl.CJM. Referring to para2, 4 and 5 of the application given by the CBI before the learned Addl.CJM, he submitted that not a single material has been shown by the CBI as to how the custodial interrogation is required. He further stated that the SIT was monitored by the Hon'ble High

Court and the investigation was carried out as per the direction of the Hon'ble High Court, around 3 to 4 times, the statements were recorded and about 3 different times, the reconstruction of the offence had been done and whatever had been, known to the accused was stated before the SIT. He stated that the original FIR is still open, there is no closure report till date, and on the material given by the SIT, the CBI is conducting the further investigation. The accused-opponent of the present case was never called by the CBI by any summons or notice and straight away he was arrested from his office. He submitted that the ground with regard to 9 mm bullet recovered, as referred in para 8.3 and 8.4 of the FIR, were never pressed before the learned Addl.CJM. He further submitted that the CBI has not made any investigation with regard to the facts in subpara (b), (c), (d) of para 5.5 of the FIR, and even no further investigation was carried out with relation to the facts of para-5.6 of the FIR. 8.1 He referred para-17 of the judgment of State of Gujarat Vs.

Swami Amar Jyoti Shyam, reported in 1989 (1) G.L.H. 313, and

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submitted that the learned Addl.CJM, was not even required to give any reasons for refusing the police custody. He submitted that the learned Addl.CJM has rightly rejected the application for police remand, and that there is no substance in the Revision Application and thus, prayed for rejecting the same. 9. In reply, the Special PP Shri Ejazkhan for the CBI referred to

Para-(h) on page-162 of the judgment of Hon'ble High Court of Gujarat, in the case of SIT THROUGH KARNAL SINGH-IPS VS. SAMIMA KAUSAR WD/O. MOHMMED SHAMIM RAZA & 4, which reads as under :" Further investigation of CR No.8/2004 of Crime Branch Police Station shall be transferred to CBI, within one month after the registration of the FIR by CBI as directed herein above. The State Government shall issue appropriate orders/notification for such purpose. CBI thereafter shall file appropriate report based on conclusion of SIT as per its 8th Report in the concerned Court, but, the full details and the relevant documents shall be produced only after investigation of the aforesaid another/fresh FIR is completed and appropriate Report is filed in the concerned Court for another/fresh FIR. " and stated that further investigation of CR No.8/2004 of Crime

Branch Police Station was transferred to CBI. Referring to para-23 on page-98, he stated that the Hon'ble High Court has observed that the detail investigation and the report of the SIT, in his Final (8th) Progress Report, goes to suggest that the encounter was not genuine. He submitted that the complexity is so deep, and the recovery and the discovery can not be completed in 24 hours. He further submitted

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that the fake and fictitious names and addresses were given in the FIR, so, the CBI was unable to trace it. Thus, in all the circumstances, the police custody remand of the accused is required and thus, prayed for setting aside the order of the learned Addl.CJM and granting the police custody remand for the accused. 10. Sec.397 r/w Sec.401 of the Cri.P.C. provide for the Revisional

power of the Court, to be exercised for the purpose of satisfying itself to the correctness, legality and propriety of any finding or order. It is true that the Order of the police custody remand should not be mechanically made as a matter of routine. It is for the Court to satisfy that the sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence and it appears likely that further evidence may be obtained by such remand and for that, the whole range of facts, existing on record, can be taken into consideration for to justify granting of police custody remand to the Investigation officer u/s.167(2) of the Cri.P.C. When during the course of investigation, inculpatory facts against the accused come in light, then it would be justifiable for the Magistrate to exercise his judicial mind under this Section having regard to the facts and circumstances placed before him by the IO. The Magistrate has to satisfy himself with regard to the necessity of granting the remand to police custody of the accused. 11. In the case of CBI Vs. Avarjeetsingh and one (Supra),

referred by the Special PP for the CBI, wherein at para-17, it has been observed that,- " "Thus, while considering the application, a balance has to be maintained between the rival claims of the accused on the

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ground of personal liberty and that of the investigating agency like CBI for necessary investigation and the custodial interrogation for extracting the information which may lead to further clue regarding the investigation of the offence. Therefore, no hard and fact rule or straight-jacket formula can be there and it has to be considered depending upon the facts and circumstances in each case. The justification for custodial interrogation or remand by the CBI cannot be said to be without any basis and the court below has misdirected in appreciating that it is not the recovery of mobile phone only, but, it is the right of the investigating agency to have custodial interrogation of the accused for extracting information which is exclusively within the knowledge of the accused. The submission made by learned counsel Mr.Panchal with

emphasis regarding the recovery and discovery is a matter of perception when one states that such incriminating material has been concealed by the accused or whether it is thrown by the accused which is required to be recovered." As per the observation of the Hon'ble High Court, the learned Addl.CJM was required to take into consideration the facts and circumstances of the case, to strike the balance between the rival claims of the accused and that of the CBI. 12. The application before the learned Addl.CJM by the CBI for

the grant of police custody remand of the accused, in para-2, shows that during the search at the office and residence of the accusedShri G.L.Singhal, CBI found huge cash Rs.3,61,500/- six mobile

phones, one Sony Tablet PC, six pen drives, one lap top computer

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and two USB multimedia storage devices. The application was also with the averment of considering the complaint as a part of the application for police remand. The learned Addl.CJM in his order below the application dtd. 22/02/2013, has taken into consideration the fact of search of the things found by the CBI, at the accused's office and residence, and has observed that there was no need of the presence of the accused for the investigation towards the devices which have been seized. The said finding of the learned Addl.CJM is not correct as the devices as referred to in para-2 of the application, had come from the custody of the accused, it is the accused who can co-operate the CBI, in relation to investigation to those devices discovered and seized. The facts of the present case and the investigation to that regard is complex. The allegation against the accused is that they are perpetrators of the crime. The CBI is required to investigate into this encounter which the Hon'ble High Court observed THROUGH in para-23 of the judgment, in the case of SITSINGH-IPS VS. SAMIMA KAUSAR

KARNAL

WD/O.MOHMMED SHAMIM RAZA & 4,

in Cri.Misc.Application

No.15981/2010 in Cri.Misc.Misc.Application No.9832/2010 in Special Criminal Application No.1850/2009, which reads as under :"23. We may state that the final report, which is the eighth progress report, concluding the aforesaid comprises of 63 pages and 11 annexures, but, as the disclosure of the material therein at this stage may affect the investigation thereafter, to be undertaken in accordance with law, we have found it proper not to reproduce or refer to the findings on each point by the SIT. We only state that the detailed investigation and the

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report as submitted by the SIT in its final (8th) progress report goes to suggest that the encounter was not genuine. " Thus, it has been observed that the encounter was not genuine, and the present opponent-accused had been a member of the team, and as per the complaint, lodged against this accused-opponent, the accused had ordered as team commando to open fire. The CBI relying upon the scientific opinion about the circumstances as per the FIR, version, wants to make investigation with regard to 9 mm bullet recovered from the body of the Amjadali and one 9 mm bullet recovered from the clothes of Isharat Jahan which do not match with the police weapons used in the encounter, and which even do not match with two 9 mm pistols recovered from the Indica car, which suggests that the deceased persons had received bullet wounds from an unknown firearam. Eight empty cartridges of 9 mm ammunition recovered from the Indica car do not match with the two pistols recovered from the Indica car, and these empties of 9 mm do not match with the two police weapons of 9 mm caliber used in the encounter. The accused is the person who commanded the encounter, which has been observed by the Hon'ble High Court, is not genuine. The complaint against the accused with respect to CR No.8/2004 is against the officer named in column No.7 of the FIR by the CBI which includes the present accused-opponent, who had given effect to the incident, and is found to be responsible to have caused the death of four deceased persons, and alleged to have been found committed the offence u/s.302, 364, 368, 346, 120-B, 201, 203, 204, 217, 218 of the IPC and under Sec.25(1)(e) and 27 of the Arms Act. The learned Addl.CJM has failed to take into consideration the

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seriousness of the matter, along with the role of the accused, as alleged in the said fake encounter, the CBI is required to make further investigation in connection with it, and with respect to the devices which have been recovered and seized from the residence and office of the accused. The learned Addl.CJM's observation that the accused has clarified the possession of Rs.3,61,500/- for the purchase of furniture is also erroneous, as the accused has to clarify his known source of income means income received from lawful source. Taking into consideration the gravity of the facts, presence of the accused for the further investigation to that respect would be necessary. The provision u/s.167 Cri.P.C. for praying for police custody remand, would come into play when the investigation can not be completed within 24 hours. The devices which have been seized from the residence and office of the accused shows that the investigation towards the finding of the materials to those devices, would require the presence of the accused. The learned Addl.CJM has failed to take into consideration this aspect of the matter and has even failed to take into consideration that the accusation are well founded. The learned Addl.CJM ought to have granted the remand of the accused to police custody to facilitate the proper and complete investigation as the CBI has made out the case for the custody of the accused, for further investigation. The facts as alleged against the accused shows that there are good grounds for allowing the detention in police custody of the accused in police custody remand. 13. In the case of Siyaram Gopichand Gupta and others Vs.

State of Gujarat, 1990 (1) G.L.H. 21, in para (A) & (B), it has been held that,-

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" (A) Code of Criminal Procedure, 1973-Sec.2(h), 167(2)Remand to police custody-Cannot be refused on the ground that police may adopt third degree methods-InvestigationCollection of evidence-Investigating agency ought to desist from deploying third degree tactics and display resourcefulness and skill in obtaining information from person under remand. (B) Code of Criminal Procedure, 1973-Sec.167-Remand at

late stage-Held on facts request for remand at late stage was justified-Remand can be asked even to trace out persons who had links with the accused." 14. In the circumstances of this particular case, the question which

requires to be answered is whether the extra-ordinary power under Sec.397 r/w Sec.401 of Cri.P.C. is required to be exercised ? To answer that question, the consideration would be whether nongranting of police custody remand would cause injustice. As observed by the Hon'ble High Court in para-(17) of the case of Avarjeetsingh (Supra), the balance is required to be maintained. It is not merely the right of the accused that is to be considered. The matter from the side of the CBI too, has to be considered. The CBI has set forth the circumstances under which the application for accused's police custody remand has been prayed. In the peculiar set of

circumstances of the case, the allegation against the accused is of the direct involvement in the encounter. The order of the learned

Addl.CJM is a glaring case of injustice. The investigation could not be completed within 24 hours of the arrest of the accused, to the given set of the facts of the case. Hence, the present Revision

Application is required to be allowed, and hence, is allowed with the

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following order :ORDER

[1] [2]

Cri.Revision Application No.1 of 2013 is hereby allowed. The Order dated 22/02/2013 of the learned Additional Chief

Judicial Magistrate, Court No.2 & CBI Case, Mirzapur, Ahmedabad, below Police Custody Remand application of accused- Shri Girish Laxman Singhal, in Crime No.RC.BS1/2011/S/0005-MUMBAI, is set aside. [3] The accusued Shri Girish Laxman Singhal, is ordered to be

given in Police Custody Remand from 5.00 p.m. today i.e. 1/03/2013 till 3.00 p.m. of 6/03/2013. [4] CBI to produce the accused at 3.00 p.m. on 6/03/2013 before the

Additional Chief Judicial Magistrate Court No.2 & CBI Cases, Mirzapur, Ahmedabad. [5] CBI has to strictly follow the judgments of Ho'ble Supreme

Court and High Courts pertaining to the custody of the accused during the remand period. [6] Order of this remand be explained and read over to the accused

and necessary signature be taken below this order. [7] Copy of this order be sent to the CBI, Gandhinagar, and to

Addl.CJM, Court No.2 & CBI Cases, Mirzapur, Ahmedabad. Pronounced in the open court on this 1st day of March, 2013.

(MS.GITA GOPI) SPECIAL JUDGE, CBI COURT NO.2, AHMEDABAD.