Paragraph numbers below are the court’s original numbering, recovered from the source text.
29. The statement of Azam Khan dated 26.03.2010 indicates the manner in which the abduction of Sohrabuddin and C Kausarbi was planned and executed. Azam Khan, in his statement had stated that he and Tulsiram Prajap1ti were lodged in Udaipur prison at which time Tulsiram Prajapati told him that on information given by Tulsiram Prajapati, Sohrabuddin, Kausarbi and Tulsiram were abducted from D Hyderabad. Among the entire statement of Azam Khan, the relevant part is that Tulsiram Prajapati helped in tracking down Sohrabuddin.
30. Learned senior counsel for the CBI, Mr. K.T.S. Tulsi E has pointed out that since the CBI had primarily conducted the investigation in the case of encounter of Sohrabuddin and the murder of Kausarbi, it has so far not launched a full fledged investigation into the circumstances in which Tulsiram Prajapati was killed. According to him, certain facts have come to the F notice of the CBI only as part of "larger conspiracy" with regard to which investigation was ordered by this Court and it was pointed out that full-fledged investigation by the CBI alone reveal further facts and lead to more direct evidence. Mr. K.T.S. Tulsi is right in claiming that the investigation in every criminal case G is conducted on the basis of suspicion and reason to believe and to apply the standard of proof beyond doubt at a stage when a full fledged investigation is yet to be launched.
31. It is not in dispute that it is the age-old maxim that justice must not only be done but must be seen to be done. The H fact that in the case of murder of an associate of Tulsiram Prajapati, Senior police officials and a senior politician were accused which may shake the confidence of public in investigation conducted by the State Police. If the majesty of rule of law is to be upheld and if it is to be ensured that the guilty are punished in accordance with law notwithstanding their status and authority which they might have enjoyed, it is desirable to entrust the investigation to the CBI.
32. As stated earlier, it is the specific claim of the State of Gujarat that they have conducted a fair and impartial investigation into the killing of Tulsiram Prajapati, however, analysis of the materials which we have already discussed show several lacuna on the part of the investigation by the State Government. It is relevant to point out that much before the incident dated 28.12.2006 which happened in village Chappri in Banaskantha District of the State of Gujarat in which Tulsiram Prajapati was allegedly shot in an encounter while he had opened fire on the police party, who was on the look out for him to apprehend him, after he had allegedly escaped from a running train while being taken back to Rajasthan from Gujarat where he was stated to be produced in a court proceeding, Tulsiram Prajapati lodged two complaints in written, one to the Collector, Udaipur and another addressed to the Chairman, NHRC, New Delhi expressing the apprehension that he is likely and going to be killed by Gujarat and Rajasthan police. In fact, on 28.12.2006, Tulsiram Prajapati has been killed in the fake encounter which has now being admitted to be a fake counter after a gap of 3 % years.
33. In Md. Anis vs. Union of India and Ors. 1994 Supp (1) SCC 145, it has been observed by this Court that: "5 …… Fair and impartial investigation by an independent agency, not involved in the controversy is the demand of public interest. If the investigation is by an agency, which is allegedly privy to the dispute, the credibility of the investigation will be doubted and that will be contrary to the public interest as well as the interest of justice …… ." "2 ….. Doubts were expressed regarding fairness of investigation as it was feard that as the local police was alleged to be involved in the encounter, the investigation by an officer of the UP Cadre may not be impartial. … "
34. In another decision of this Court in R. S. Sodhi vs. State of UP. & Ors. 1994 Supp (1) SCC 143, the following conclusion is relevant: c "2 …… We have perused the events that have taken place since the incidents but we are refraining from entering upon the details thereof lest it may prejudice any party but we think that since the accusations are directed against the local police personnel it would be desirable to entrust the investigation to an independent agency like the Central Bureau of Investigation so that all concerned including the relatives of the deceased may feel assured that· an independent agency is looking into the matter and that would lend the final outcome of the investigation credibility. However faithfully the local police may carry out the investigation, the same will lack credibility since the allegations are against them, It is only with that in mind that we having thought it both advisable and desirable as well as in the interest of justice to entrust the investigation to the Central Bureau of Investigation forthwith and we do hope that it would complete the investigation at an early date so that those involved in the occurrences, one way or the other, may be brought to book. We direct accordingly …… "
35. In both these decisions, this Court refrained from expressing any opinion on the allegations made by either side G but thought it wise to have the incident investigated by an independent agency like the CBI so that it may bear credibility. This Court felt that no matter how faithfully and honestly the local police may carry out the investigation, the same will lack credibility as allegations were directed against them. This H Court, therefore, thought it both desirable and advisable and in the interest of justice to entrust the investigation to the CBI so that it may complete the investigation at an early date. It was clearly stated that in so ordering no reflection either on the local police of the State Government was intended. This Court merely acted in public interest.
36. The above decisions and the principles stated therein have been referred to and 'followed by this c'ourt iri Rubbabuddin Sheikh (supra) wherealso it was held that considering the fact that the allegations have been leveled against higher level police officers, despite the investigation made by the police authorities of the State of Gujarat, ordered investigation by the CBI. Without entering into the allegations leveled by either of the parties, we are of the view that it would be prudent and advisable to transfer the investigation to an independent agency. It is trite law that accused persons do not have a say in the matter of appointment of an· investigation agency. The accused persons cannot choose as to which investigation agency must investigate the alleged offence committed by them.
37. In view of our discussions and subr:nission of learned counsel on either side and keeping in mind the earlier directions given by this Court, although, charge-sheet has been filed by the State of Gujarat after a gap of 3. Yz years after. the incident, that too after pronouncement of judgment in Rubbabudin's case and considering the nature of crime that has been allegedly committed not by any third party but by the police personnel of the State of Gujarat, we are satisfied that the investigation conducted and concluded in the present case by the State police cannot be accepted. In view of various circumstances highlighted and in the light of the involvement of G police officials of the State of Gujarat and police officers of two other States, i.e. Andhra Pradesh and Rajasthan, itwould not be desirable to allow the Gujarat State Police to continue with the investigation, accordingly, to meet the ends of justice and in the public interest, we feel that the CBI should be directed to take the investigation. A Submission of Report by the CBI to this Court and subsequent monitoring.
38. The other question relates to submission of a report by the CBI to this Court and further monitoring in the case. B Though in Rubabbudin Sheikh's case (supra), this Court directed the CBI that after investigation submits a report to this Court and thereafter, further necessary orders will be passed in accordance with the said report, in view of the principles laid down in series of decisions by this Court, we are not C persuaded to accept the course relating to submission of report to this court and monitoring thereafter. (a) In Vineet Narain (supra), this Court held as under: "In case of persons against whom a prima facie case is made out and a charge-sheet is filed in the competent court, it is that court which will then deal with that case on merits, in accordance with law." (b) In Sushi/ Kumar Modi (supra), this Court observed that the monitoring process in the High Court in respect of the E particular matter had come to an end with the filing of the charge-sheet in the Special Court and the matter relating to execution of the warrant issued by the Special Court against Shri Laloo Prasad Yadav was a matter only within the competence of the Special Court so that there was no occasion F for the High Court to be involved in any manner with the execution of the warrant.
By relying on decision in Vineet Narain's case (supra), this Court reiterated that once a charge- sheet is filed in the competent court after completion of the investigation, the process of monitoring by this Court for the G purpose of making the CBI and other investigating agencies concerned perform their function of investigating into the offences concerned comes to an end; and thereafter it is only the court in which the charge-sheet is filed which is to deal with all matters relating to the trial of the accused, including matters H falling within the scope of Section 173(8) of the Code. (c) In M.C. Mehta (Taj Corridor Scam) vs. Union of India and Others, (2007) 1 SCC 110, this Court again reiterated the same principle. The following conclusion is relevant: "30. At the outset, we may state that this 9ourt has repeatedly emphasized in the above judgments that in Supreme Court monitored cases this Court is concerned with ensuring proper and honest performance of its duty by CBI and that this Court is not concerned with the merits of the accusations in investigation, which are to be determined at the trial on the filing of the charge-sheet in the competent court, according to the ordinary procedure prescribed by law …….. " After saying so, this Court concluded: "34. We, accordingly, direct CBI to place the evidence/ material collected by the investigating team along with the report of the SP as required under Section 173(2) CrPC before the court/Special Judge concerned who will decide the matter in accordance with law." The above decisions make it clear that though this Court is competent to entrust the investigation to any independent agency, once the investigating agency complete their function of investigating into the offences, it is the Court in which the charge-sheet is filed which is to deal with all matters relating to the trial of the accused including matters falling within the scope of Section 173(8) of the Code.
Thus, generally, this Court may not require further monitoring of the case/investigation. However, we make it clear that if any of the parties including the CBI require any further direction, they are free to approach this Court by way of an application. Conclusion:
39. In view of the above discussion, the Police Authorities of the Gujarat State are directed to handover all the records of [2011] 5 $.C.R. A the present case to the CBI within two weeks from this date and the CBI shall investigate all aspects of the case relating to the killing of Tulsiram Prajapati and file a report to the concerned court/special court having jurisdiction within a period of six months from the date of taking over of the investigation from B the State Police Authorities. We also direct the Police Authorities of the State of Gujarat, Rajasthan and Andhra Pradesh to cooperate with the CBI Authorities in conducting the investigation .. .
40. It is made clear that any observation made in this order C is only for the limited purpose of deciding the issue whether investigation is to be handed over to the CBI or not and shall not be construed as expression of opinion on the merits of the case. Though the petitioner has prayed for compensation for the killing of her son, inasmuch as we direct the CBI. to D investigate and submit a report before the court concerned/ special court within six months, depending on the outcome of the investigation, petitioner is permitted to move the said court for necessary direction for compensation and it is for the said court to pass appropriate orders in accordance with law. The E writ petition is allowed on the above terms. D.G. Writ petition allowed.