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   REPORTABLE                         

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 149  OF 2012

Amitbhai Anilchandra Shah      .... Petitioner(s)

Versus

The Central Bureau of  Investigation & Anr.                    .... Respondent(s)

WITH

WRIT PETITION (CRIMINAL) NO. 5 OF 2013

J U D G M E N T  

P. Sathasivam, J.

1) Amitbhai  Anilchandra Shah has filed the present Writ  

Petition  being  No.  149  of  2012  under  Article  32  of  the  

Constitution of India owing to the filing of fresh FIR being No.  

RC-3(S)/2011/Mumbai  dated  29.04.2011  by  the  Central  

Bureau  of  Investigation  (CBI)  and  charge  sheet  dated  

04.09.2012  arraying  him  as  an  accused  in  view  of  the  

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directions given by this Court to the Police Authorities of the  

Gujarat State to handover the case relating to the death of  

Tulsiram  Prajapati  -  a  material  witness  to  the  killings  of  

Sohrabuddin and his wife Kausarbi to the CBI in  Narmada  

Bai vs. State of Gujarat & Ors., (2011) 5 SCC 79.    

2) In Narmada Bai (supra), this Court, taking note of the  

fact  that the charge sheet has been filed by the State of  

Gujarat after  a  gap of 3½ years and also considering the  

nature and gravity of the crime, rejected the investigation  

conducted/concluded by the State Police and directed the  

State  police  authorities  to  handover  the  case  to  the  CBI.  

After  investigation,  the  CBI  filed  a  fresh  FIR  dated  

29.04.2011 against various police officials of the States of  

Gujarat and Rajasthan and others for acting in furtherance of  

a  criminal  conspiracy  to  screen  themselves  from  legal  

consequences of their crime by causing the disappearance  

of human witness, i.e., Tulsiram Prajapati, by murdering him  

on  28.12.2006  and  showing  it  off  as  a  fake  encounter.  

Though the said FIR did not specifically name any person, in  

the  charge  sheet  dated  04.09.2012  filed  in  the  said  FIR  

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before  the  Court  of  Judicial  Magistrate  First  Class,  Danta  

District,  Banaskantha,  Gujarat,  the  petitioner  herein  was  

arrayed  as  A-1.   Further,  due  to  lack  of  jurisdiction,  the  

charge sheet was presented before the 2nd Additional Chief  

Judicial  Magistrate,  (First  Class),  (CBI  Court  No.  1),  

Ahmedabad, Gujarat.

3)  Being aggrieved by the fresh FIR dated 29.04.2011 and  

charge  sheet  dated  04.09.2012,  the  petitioner  herein  has  

filed the above said writ petition on the ground of it being  

violative of his fundamental rights under Articles 14, 20 and  

21 of the Constitution and contrary to the directions given in  

Narmada Bai (supra).  

Writ Petition (Criminal) No. 5 of 2013:

4) Sangiah Pandiyan Rajkumar IPS-who was arrayed as A-3  

in the charge sheet dated 04.09.2012 has filed the above  

said writ petition praying for similar relief as sought for in  

Writ Petition (Crl.) No. 149 of 2012.  Since the grievance of  

the above-said petitioner is similar to that of the petitioner in  

W.P.  (Crl.)  No.  149 of  2012,  there  is  no need to  traverse  

those details once again.   

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5) Heard Mr.  Mahesh Jethmalani,  learned senior  counsel  

for  the  petitioner  in  W.P.  (Crl.)  No.  149 of  2012,  Mr.  K.V.  

Viswanathan,  learned  senior  counsel  for  the  petitioner  in  

W.P. (Crl.) No. 5 of 2013, Mr. H.P. Rawal, learned Additional  

Solicitor General for the CBI and Mr. Tushar Mehta, learned  

Additional Advocate General for the State of Gujarat.

Discussion:

6)  A  perusal  of  the  prayer  in  the  writ  petition  clearly  

shows  that  the  petitioner  is  not  seeking  quashing  of  

investigation, however, praying for quashing of second FIR  

being No. RC-3(S)/2011/Mumbai dated 29.04.2011 and also  

praying that the charge sheet dated 04.09.2012 in respect of  

the said FIR be treated as supplementary chargesheet in first  

FIR being No. RC No. 4S of 2010 so that his fundamental  

right under Article 21 is not infringed.   

7) Mr. Mahesh Jethmalani, learned senior counsel for the  

petitioner  pointed  out  that  the  reliefs  sought  for  are  in  

consonance  with  the  law  laid  down  by  this  Court  in  C.  

Muniappan & Ors. vs. State of Tamil Nadu (2010) 9 SCC  

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567. He very much relied on para 37 of the said judgment  

which holds as under:

“…..Merely  because  two  separate  complaints  had  been  lodged,  did  not  mean  that  they  could  not  be  clubbed  together and one charge sheet could not be filed”   

8) It is also pointed out by learned senior counsel for the  

petitioner-Amit  Shah  that  the  above  said  prayer  is  based  

upon  CBI’s  own  finding  that  the  offence  covered  by  the  

Second FIR is part of the same conspiracy and culminated  

into  the  same  series  of  acts  forming  part  of  the  same  

transaction in which the offence alleged in the first FIR was  

committed.  It is also pointed out that it is the case of the  

CBI itself before this Court that even the charges will have to  

be  framed  jointly  and  one  trial  will  have  to  be  held  as  

contemplated  under  Section  220  of  the  Code  of  Criminal  

Procedure, 1973 (in short ‘the Code’).  It is further pointed  

out  that  as  per  the  CBI,  the  alleged  criminal  conspiracy  

commenced when Sohrabuddin and Kausarbi (whose deaths  

were  in  question  in  the  first  FIR)  and  Tulsiram  Prajapati  

(whose  death  was  in  question  in  the  second  FIR)  were  

abducted  from  Hyderabad  after  which  Sohrabuddin  was  

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allegedly killed on 25/26.11.2005 and Kausarbi and Tulsiram  

Prajapati were killed thereafter since they were, as per CBI,  

the  eye-witnesses.   Finally,  it  is  highlighted  that  the  

competent jurisdictional court has already taken cognizance  

of  all  the three alleged killings in  the chargesheet/challan  

filed by the CBI in the first FIR itself.   

9) Before  going  into  the  factual  matrix  as  projected  by  

learned senior counsel for the petitioner,  it  is desirable to  

refer to the stand taken by the CBI.    

10) It is the definite case of the CBI that the abduction of  

Sohrabuddin and Kausarbi and their subsequent murders as  

well as the murder of Tulsiram Prajapati are distinct offences  

arising out of separate conspiracies though inter-connected  

with each other as the motive behind the murder of Tulsiram  

Prajapati  was  to  destroy  the  evidence  in  respect  of  the  

abduction of Sohrabuddin and Kausarbi, as he was a prime  

witness to the said incident.  It is not in dispute that as per  

the  scheme  prescribed  in  the  Code,  once  a  complaint  is  

received  with  respect  to  a  cognizable  offence,  the  

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investigating authority is duty bound to register an FIR and,  

thereafter, initiate investigation.   

11) Mr.  Rawal,  learned  Additional  Solicitor  General  

appearing for the CBI, by drawing our attention to Section  

218 of the Code submitted that a distinct charge is to be  

framed for a distinct offence, i.e., there has to be a separate  

charge for separate offence and each distinct charge has to  

be tried separately.  He further pointed out that the concept  

of joint trial, which is an exception and not the rule cannot  

be made applicable to the stage either of investigation or  

the filing of charge sheet of a report under Section 173(2) of  

the Code.  He also highlighted that in the Code, there is no  

concept of joint investigation.  The only exception is under  

Sections 219 and 220 of the Code that a person can be tried  

at one trial for more offences than one committed within a  

period of one year.  He also pointed out that there is no bar  

in law to file separate FIR/complaint in respect of two distinct  

offences and similarly there is no bar to file two separate  

charge-sheets  for  seeking  prosecution  of  accused  in  two  

distinct  offences.   He  further  highlighted  that  in  T.T.  

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Anthony vs.  State  of  Kerala (2001)  6  SCC  181,  the  

principle that was laid down with regard to the bar of filing of  

the second FIR was only in respect of the same incident or  

occurrence.   According  to  him,  whether  the  offences  are  

distinct or same would necessarily have to be examined in  

the facts and circumstances of each case.  He also submitted  

that  the facts  urged in  the affidavit  were on the basis  of  

mere suspicion, hence, CBI cannot be held to be bound by its  

initial response in the status report or the affidavit since on a  

complete investigation, it is revealed that not only both the  

offences are distinct and separate but both the conspiracies  

were  also  hatched  at  different  points  of  time.   It  is  also  

pointed out by the CBI that the abduction and subsequent  

murder of Sohrabuddin and the murder of Tulsiram Prajapati  

after  a  period  of  more  than  one  year  are  separate  and  

distinct offences.  According to him, the material available  

with the CBI would show distinct and separate conspiracy to  

eliminate  Sohrabuddin  and,  thereafter,  another  conspiracy  

was hatched in order to eliminate Tulsiram Prajapati as soon  

as the accused persons apprehended that Tulsiram Prajapati  

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would  spill  the  beans  with  respect  to  elimination  of  

Sohrabuddin in a fake encounter.   

12) It is the definite case of the CBI that the investigation  

has revealed that subsequent to the murder of Hamid Lala,  

Sohrabuddin and Tulsiram Prajapati continued their criminal  

activities  in  the  States  of  Maharashtra,  Rajasthan  and  

Gujarat.   However,  Sohrabuddin  remained  elusive  and  

beyond the reach of the Gujarat Police.  It was, therefore,  

that  the  accused  Amit  Shah  (petitioner  herein),  D.G.  

Vanzara,  S.  Pandiyan  Rajkumar,  Dinesh  Man  and  others  

entered  into  a  conspiracy  to  abduct  and  murder  

Sohrabuddin.   Accordingly,  D.G.  Vanzara,  with  the  aid  of  

Abhay  Chudasma,  S.P.  Valsad  had  Tulsiram  Prajapati,  an  

associate  of  Sohrabuddin,  in  order  to  trace  Sohrabuddin.  

Whilst  giving  such  directions,  D.G.  Vanzara  also  assured  

Tulsiram Prajapati that he would ensure safe passage for him  

as he would be implicated in some petty cases.  It was after  

this assurance from D.G. Vanzara and Abhay Chudasma that  

Tulsiram  Prajapati  agreed  to  help  them  in  tracing  and  

locating  Sohrabuddin.   Accordingly,  Tulsiram  Prajapati,  in  

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accordance with his clandestine agreement with the Gujarat  

Police,  informed  them  in  advance  about  the  plan  of  

Sohrabuddin  to  travel  to  Sangli  from  Hyderabad  and,  

thereafter,  Sohrabuddin  was abducted and murdered.   By  

pointing out the above factual details, it is the stand of the  

CBI  that  the  first  conspiracy  took  place  to  eliminate  

Sohrabuddin with the help of Tulsiram Prajapati who agreed  

to trace and locate him after the assurances given by the  

Gujarat Police.  Thus, in the aforesaid conspiracy, Tulsiram  

Prajapati  can be said  to  be a  part  of  the said  conspiracy  

though not knowing the motive about the same.   

13) It  is  further  pointed  out  that  in  pursuance  of  the  

aforesaid  criminal  conspiracy,  Sohrabuddin,  Kausarbi  and  

Tulsiram  Prajapati  were  brought  to  Valsad,  Gujarat  in  

vehicles by Gujarat Police.  From Valsad, Tulsiram Prajapati  

was allowed to return to Bhilwara, Rajasthan by the police  

party.  Subsequently, Sohrabuddin was murdered and shown  

as if he was a Lashkar-e-Taiba terrorist killed in an encounter  

with a police party on 26.11.2005 at Ahmedabad while his  

wife Kausarbi was murdered on 29/30.11.2005 and her body  

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was  disposed  off.   Tulsiram  Prajapati  was  shown  to  be  

arrested on 29.11.2005.  Since then, he had been lodged in  

Udaipur Jail till he met his fate.   

14) The most vital evidence that seems to have triggered  

Tulsiram  Prajapati’s  death  is  a  letter  of  Shri  V.L.  Solanki  

dated 18.12.2006 seeking permission to interrogate Tulsiram  

Prajapati and Sylvester lodged in Udaipur Jail.  On the very  

same letter, Ms. Geetha Johri, head of the SIT is alleged to  

have recorded that  even she may be given permission to  

accompany  the  IO  for  interrogation.   Thereafter,  the  said  

letter is alleged to have been endorsed by Ms. Geetha Johri  

to Shri G.C. Raiger, Additional DGP, CID.  It is further pointed  

out that the said letter  of Shri  V.L.  Solanki  containing the  

note of Ms. Geetha Johri was not found in the official file.  In  

its place, a fabricated note dated 05.01.2007 along with a  

noting of Shri G.C. Raiger dated 06/08.01.2007 was found in  

the file in which it was recorded as under:-

“13(d) To go to Udaipur to interrogate accused Sylvester  and Tulsi Prajapati (both being allegedly primary witnesses  in the case) of whom Tulsi was recently encountered at BK  by border range.”   

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15) It is also pointed out by the CBI that at the time of the  

murder of Sohrabuddin, there was no conspiracy to murder  

Tulsiram Prajapati and it is only subsequent to his murder  

when the accused persons feared of Tulsiram Prajapati being  

a  threat  to  them and would  spill  the  beans  as  he  was  a  

material witness in the first conspiracy inasmuch as tracing  

and  locating  of  Sohrabuddin  on  the  assurances  of  the  

accused,  another  conspiracy  was  hatched  to  murder  a  

potential  witness  to  the  murder  of  Sohrabuddin.   By  

highlighting these factual details, it is pointed out by the CBI  

that there were two distinct and separate conspiracies.

16) With these factual aspects, as projected by the CBI, let  

us  analyze  further  details  highlighted  by  learned  senior  

counsel for the petitioner as well as the specific stand of the  

CBI in the earlier proceedings asserted before this Court in  

the form of affidavit/counter affidavit and status reports.

Entrustment of investigation to the CBI in respect of  Ist FIR:  

17) Initially, Gujarat police conducted investigation into the  

killing of two individuals and filed charge sheet in the FIR  

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being Crime Register  No.  5/2006.   This  Court,  in  the  writ  

petition filed in Rubabbuddin Sheikh vs. State of Gujarat  

and  Others  (2010)  2  SCC  200  did  not  accept  the  

investigation of the Gujarat Police and consequently directed  

the CBI to conduct investigation.  This order was passed by  

this Court on 12.01.2010.  In the said decision, this Court  

expressed  a  suspicion  that  the  alleged  killing  of  Tulsiram  

Prajapati  could  be the part  of  the same conspiracy.   It  is  

useful to refer the relevant excerpts from the above decision  

which are as under:

“(i) The writ petitioner also seeks the registration of an  offence and investigation by CBI into the alleged encounter  of one Tulsiram, a close associate of Sohrabuddin, who was  allegedly used to locate and abduct Sohrabuddin and his  wife Kausarbi, and was thus a material witness against the  police personnel.

(ii) The report expressly states that no link of Tulsiram  Prajapati  had  been  established  in  this  case.   The  third  person who was abducted was not to be the said Tulsiram  Prajapati.

(iii) On 02.08.2007, the seventh action taken report was  filed, which stated that the third person who was picked up  was one Kalimuddin, who was suspected to be an informer  of the Police.

(iv) From the charge-sheet, it also appears that the third  person was “sent somewhere”.  However, it appears that  the literal translation of the charge-sheet in Gujarati would  mean that he was “anyhow made to disappear”.

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(v) It  also  appears  from  the  charge-sheet  that  it  identifies the third person who was taken to Disha farm as  Kalimuddin.   But  it  does not  contain the details  of  what  happened to him once he was abducted.  The possibility of  the third person being Tulsiram Prajapati cannot be ruled  out, although the police authorities or the State had made  all possible efforts to show that it was not Tulsiram.  

(vi) Similarly, it was submitted that non-identification of  the third person who was abducted along with Sohrabuddin  and Kausarbi would also not affect the prosecution case.”

18) After expressing and arriving at such a conclusion, this  

Court  concluded  that  “the  possibility  of  the  third  person  

being Tulsiram Prajapati  cannot be ruled out  and that  his  

killing could be an attempt to destroy a human witness” and  

after  saying  so,  transferred  the  investigation  to  the  CBI.  

Ultimately, this Court directed the CBI “to unearth the larger  

conspiracy”.   The  following  categorical  observations  and  

directions  in  paras  65,  66  and 82 are relevant  which are  

noted hereunder:-

“65. It also appears from the charge-sheet that it identifies  the  third  person  who  was  taken  to  Disha  farm  as  Kalimuddin.  But  it  does  not  contain  the  details  of  what  happened to him once he was abducted. The possibility of  the third person being Tulsiram Prajapati cannot be ruled  out, although the police authorities or the State had made  all possible efforts to show that it was not Tulsiram. In our  view,  the  facts  surrounding  his  death  evokes  strong  suspicion that a deliberate attempt was made to destroy a  human witness.

66. So far as the call records are concerned, it would be  evident from the same that they had not been analysed  

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properly, particularly the call data relating to three senior  police officers either in relation to Sohrabuddin's case or in  Prajapati's case. It also appears from the charge-sheet as  well as from the eight action taken reports that the motive,  which is very important in the investigation reports was not  properly investigated into as to the reasons of their killing.  The  motive  of  conspiracy  cannot  be  merely  fame  and  name. No justification can be found for the Investigating  Officer  Ms  Johri  walking  out  of  the  investigation  with  respect  to  Tulsiram  Prajapati's  death  without  even  informing this Court.

82. Accordingly, in the facts and circumstances even at  this stage the police authorities of the State are directed to  hand  over  the  records  of  the  present  case  to  the  CBI  Authorities within a fortnight from this date and thereafter  the  CBI  Authorities  shall  take  up  the  investigation  and  complete  the  same  within  six  months  from the  date  of  taking  over  the  investigation  from  the  State  police  authorities. The CBI Authorities shall investigate all aspects  of the case relating to the killing of Sohrabuddin and his  wife Kausarbi including the alleged possibility of a larger  conspiracy. The report of the CBI Authorities shall be filed  in this Court when this Court will  pass further necessary  orders in accordance with the said report, if necessary. We  expect  that  the  Police  Authorities  of  Gujarat,  Andhra  Pradesh  and  Rajasthan  shall  cooperate  with  the  CBI  Authorities in conducting the investigation properly and in  an appropriate manner.”

19) The  observations,  findings  and  directions  in  

Rubabbuddin  Sheikh  (supra)  clearly  show  that  the  

alleged killing of Tulsiram Prajapati was thus perceived even  

by this Court to be an act forming part of the very same  

transaction  and  same  conspiracy  in  which  the  offence  of  

killing of Sohrabuddin and Kausarbi took place.  The CBI also,  

upon investigation held that “strong suspicion expressed by  

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this Court in the above judgment was true and filed charge  

sheet/s”.

20) Pursuant  to  the  decision  in  Rubabbuddin  Sheikh  

(supra) dated 12.01.2010, the CBI filed a fresh FIR, viz., first  

FIR.  It  is  also  clear  that  during  the  investigation,  the  CBI  

came to the conclusion that this first FIR was a part of the  

series  of  acts  concerning  with  the  alleged  offence  of  

abduction and killing of two individuals, viz., Sohrabuddin on  

25/26.11.2005 and Kausarbi on 29.11.2005 culminating with  

the killing of  one more person,  viz.,  Tulsiram Prajapati  as  

part of the very same conspiracy.

21) Now, let us discuss the charge sheet dated 23.07.2010  

filed by the CBI in the first FIR.  As rightly pointed out by Mr.  

Mahesh Jethmalani, learned senior counsel for the petitioner-

Amit Shah, in this chargesheet itself,  the CBI categorically  

mentioned that the killing of Tulsiram Prajapati is also a part  

of the very same conspiracy which is mentioned in the first  

FIR above.  Though, before us, a different stand was taken  

by the CBI, the following excerpts of the charge sheet clearly  

show that CBI was very categorical that killing of Tulsiram  

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Prajapati is also a part of the very same conspiracy, which  

are as under:-

“11……Shri  Naymuddin,  brother  of  Shri  Sohrabuddin had  gone  to  see  off  Shri  Sohrabuddin,  sister-in-law  Smt.  Kausarbi and Tulsiram Prajapati at Indore Bus Stand.

19. Investigation further revealed that the Police Party also  followed the luxury bus.  About 15 to 20 kilometers from  the hotel, on the instructions of Shri Rajkumar Pandiyan (A- 2) their vehicles overtook the luxury bus and stopped the  bus.  Two police persons entered into the bus and asked  the driver to switch on the light.   While the third police  person was having torch in his  hand remained near the  door of the bus.  The police persons told there is police  checking.  All the three police personnel were in civil dress.  They picked up Tulsiram Prajapati who was sitting in the  bus.  After sometime, they again came into bus and picked  up  Sohrabuddin.   When  Sohrabuddin  was  made  to  get  down from the bus, Kausarbi also got down…..

20.  Investigation  further  disclosed that  Shri  Sohrabuddin  and  Tulsiram  Prajapati  abducted  by  police  party  were  made to sit in the Qualis while Kausarbi was made to sit in  one of the Tata Sumo vehicles along with Santram Sharma  (A-11)…..All  of  them  reached  Valsad  where  at  one  big  hotel, both the Tata Sumo Vehicles were stopped and they  took  lunch.   Tulsiram  Prajapati  was  shifted  to  another  vehicle which was brought by Rajasthan Police personnel.  They took him straight to Udaipur where he was kept in  illegal  custody for  five  days.   Thereafter,  he was  shown  arrested  by  a  team  lead  by  Shri  Bhanwar  Singh  Hada,  Inspector/SHO  P.S.  Hathipole,  Udaipur  Rajasthan  from  Bhilwara.

32. Investigation further disclosed that in the early part of  November, 2005, Shri Tulsiram Prajapati was contacted by  accused  Abhay  Chudasama  (A-15)  and  brought  to  Ahmedabad where he was produced before accused D.G.  Vanzara  (A-1).   They  asked  him  to  make  Sohrabuddin  available before them as there was lot of political pressure.  Tulsiram Prajapati was assured that Sohrabuddin would get  a safe passage and at the most Sohrabuddin would be put  in jail so as to keep him away from glare for 3-4 months.  

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No physical harm would be done to Sohrabuddin.  Having  got  the  assurance  from  accused  D.G.  Vanzara  (A-1),  Tulsiram Prajapati helped accused Abhay Chudasama (A- 15) in tracking down Sohrabuddin.”

22) Apart from the above specific stand, it is also relevant  

to point out that the CBI filed supplementary chargesheet  

dated 22.10.2010 in the first FIR which made the following  

charges:-

“Investigation  has  also  revealed  that  after  the  Gujarat  Police  Officers  had eliminated Shri  Tulsiram Prajapati  on  28.12.2006 in a fake encounter, Smt. Geeta Johri, the then  IGP  prepared  a  note  sheet  on  05.01.2006  mentioning  therein  inter  alia  the  permission  to  go  to  Udaipur  to  interrogate  the  aforesaid  two  associates  of  Sohrabuddin  viz.,  Sylvester  and  Tulsiram  Prajapati,  of  whom,  she  mentioned that Tulsriram Prajapati was encountered by the  Police….”

The  above  extracts  culled  out  from the  chargesheet  and  

supplementary chargesheet filed in the first FIR by the CBI  

would clearly show that killing of Tulsiram Prajapati was a  

fake encounter and was part of the same series of acts so  

connected  together  that  they  form  part  of  the  same  

conspiracy as alleged in the first FIR.  In view of the same,  

there cannot be a second FIR dated 29.04.2011 and fresh  

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chargesheet  dated  04.09.2012  for  killing  of  Tulsiram  

Prajapati.

23) It is also relevant to point out that when Writ Petition  

(Crl.) No. 115 of 2007 was pending, the CBI, by way of an  

affidavit  dated  19.08.2010,  furnished  the  following  

information:-

(i) Tulsiram  Prajapati’s  killing  is  a  part  of  the  same  series of acts in which killing of Sohrabuddin and Kausarbi  took place. (ii) All the three killings are part of the same conspiracy. (iii) Trial  of all the three offences shall  have to be one  trial under Section 220 of the Code. (iv) CBI  be  given  formal  permission  to  investigate  Tulsiram Prajapati killing as “further investigation” in the  first FIR filed by CBI which investigation was going on. (v) If CBI is not formally given investigation of Tulsiram  Prajapati,  prosecution  would  face  questions  of  “issue  estoppel” & “Res-judicata”.

In  the  said  affidavit,  the  CBI  even  prayed  for  “further  

investigation” in the first FIR which becomes evident from  

the prayer  made by the CBI  in  the last  paragraph of  the  

affidavit which reads as under:-

“12. That on 12.08.2010, the Hon’ble Supreme Court (Mr.  Justice Aftab Alam and Mr. Justice R.M. Lodha) has granted  three more months to complete the investigation.  Hence,  it is prayed that orders for transferring Tulsiram Prajapati  case to the CBI may be issued for expeditious completion  of investigation.”

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24) As rightly  pointed out by Mr.  Mahesh Jethmalani,  the  

above prayer of the CBI makes it clear that the CBI had also  

prayed for entrustment of Tulsiram Prajapati’s encounter “to  

complete the investigation” for which three months time was  

granted  in  W.P.  (Crl.)  No.  6  of  2007  to  complete  the  

investigation  in  the  first  FIR.   On  reading  the  abovesaid  

affidavit  as  a  whole  and the  paragraphs  quoted above in  

particular,  it  leaves  no  room for  doubt  that  the  CBI  itself  

prayed  for  “further  investigation”  so  as  to  enable  it  to  

“complete the investigation in first FIR” filed by the CBI, i.e.,  

FIR  dated  01.02.2010  by  investigating  Tulsiram  Prajapati  

encounter.   In  this  regard,  the  order  of  this  Court  dated  

12.08.2010 relied upon by the CBI is relevant and the same  

is quoted hereunder:-  

         “Order

“In pursuance of the order passed by this Court on January  12, 2010, the CBI has submitted a status report.   In the  status report, it is stated that they have been carrying on  investigations  as  directed  by  this  Court,  but  on  certain  aspects of the matter the investigation remain incomplete.  A  prayer  is,  therefore,  made  to  grant  them six  months  further  time to  complete  the  investigation.   It  is  further  prayed  that  three  other  cases  that  were  registered  in  connection with the alleged escape of Tulsiram Prajapati  from police escort and his death in a police encounter may  also be transferred for investigation to the CBI because the  

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death  of  Tulsiram  Prajapati  in  the  alleged  encounter  formed an inseparable part  of  the investigation which is  entrusted to the CBI by this Court.

Today, Mr. Jethmalani, senior advocate, appeared on  behalf  of  one of  the accused-Amit Shah.  Mr.  Jethmalani  strongly criticized the manner of investigation by the CBI  and  alluded  to  some  larger  political  conspiracy.   He  submitted  that  he  proposed  to  take  steps  of  recall/modification  of  the  order  dated  January  12,  2010  passed by this Court by which the investigation of the case  was taken away from the Gujarat Police and was handed  over to the CBI.

Today,  we  can  proceed  only  on  the  basis  of  the  previous order passed on January 12, 2010 by which the  CBI  was  directed  to  investigate  all  aspects  of  the  case,  relating to the killing of Sohrabuddin and his wife Kausarbi  including the alleged possibility of a larger conspiracy.  By  that order, the CBI was asked to complete the investigation  within six months from the date it took over the case from  the State police and to file its report to this Court when this  Court would pass further necessary orders in accordance  with the said report, if necessary.

As  on  date,  the  investigation  ordered  to  be  made  remains incomplete.  In continuation of the previous order,  therefore,  the  time  allowed  to  the  CBI  to  complete  the  investigation is extended by three months from today, at  the end of which they would file a status report before this  Court.

Put up on receipt of the status report.”   

25) It is clear that in both the status report(s) as well as in  

the affidavit filed in W.P. (Crl.) No. 115/2007, the CBI prayed  

for entrusting the investigation relating to Tulsiram Prajapati  

on the  ground that  his  encounter  was a  part  of  the very  

same offence in the first FIR which CBI was investigating.  It  

is  not  in  dispute  that  this  Court,  after  entrusting  the  

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investigation  to  the  CBI  by  order  dated  12.01.2010  was  

monitoring the said investigation in W.P. (Crl.) No. 6 of 2007.  

Even in the said writ petition, the CBI filed status report(s)  

contending that Tulsiram Prajapati’s killing was a part of the  

very  same  conspiracy  and  series  of  the  very  same  

transactions  in  which  Sohrabuddin  and  Kausarbi  were  

abducted and killed.  The following averments in the affidavit  

dated 19.08.2010 in W.P. (Crl.) No. 115 of 2007 made by the  

CBI are relevant which are as under:-

“47. During the investigation of Sohrabuddin and Kausarbi  matter it has emerged that there are clear circumstances  indicating  that  the  encounter  of  Tulsiram  Prajapati  on  28.12.2006 was done in order to eliminate him as he was  the key witness in the criminal conspiracy of the abduction  and killing of  Sohrabuddin and Kausarbi  by the powerful  and influential accused persons.  The CBI investigation has  been conducted into this aspect in view of the following  observations  of  the  Hon’ble  Supreme  Court  in  its  order  dated 12.01.2010.

48. The  investigation  has  disclosed  that  Tulsiram  Prajapati  @  Praful  @  Sameer  @  Babloo  s/o  Gangaram  Prajapati,  r/o  Shantinagar  PS  Neel  Ganga  District  Ujjain,  M.P.  was a close associate of  Sohrabuddin.   Both hailed  from same Ujjain district of MP and knew each other since  the days Sohrabuddin was lodged in Sabarmati Jail in the  Arms recovery case.  Tulsiram was working with him as his  sharp shooter….

51. The investigation has further revealed that Tulsiram  was picked up by the Police of Gujarat and Rajasthan to  trace Sohrabuddin about 20 days prior to the encounter of  Sohrabuddin.   Both  Sohrabuddin  and  his  wife  Kausarbi  were  abducted on the information  of  Tulsiram.   He was  

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promised by accused Shri D.G. Vanzara (A-1) and accused  Shri Abhay Chudasama (A-15) that no physical harm would  be caused to Sohrabuddin because Sohrabuddin was their  old associate.  Further, Tulsiram was shown to have been  arrested  on  29.11.2005  at  Bhilwada  (Rajasthan)  by  the  Rajasthan  police  i.e.,  after  the  fake  encounter  of  Sohrabuddin on 26.11.2005.

52. The investigation has further revealed that after the  fake  encounter  of  Sohrabuddin  and  murder  of  Kausarbi  said deceased Tulsiram Prajapati knew that his death was  imminent at the hands of the Gujarat Police in connivance  with  the  Rajasthan  Police  as  he  was  the  only  surviving  prime witness to the abduction and killing of Kausarbi and  Sohrabuddin.   The  grave  apprehensions  of  Tulsiram  Prajapati were expressed by him in his applications filed in  the  court  of  ACJM  City  (North)  No.  1,  Udaipur,  on  27.01.2006 and 02.02.2006 and his  letters addressed to  the  National  Human  Rights  Commission  (NHRC)  dated  18.05.2006  and  to  the  Collector,  Udaipur  dated  11.05.2006.  In addition, he made verbal/oral prayer before  the  Hon’ble  Principal  Judge,  Ahmedabad  on  28.11.2006.  Out  of  sheer  desperation,  he  made  the  fervent  appeal  before the Hon’ble Judge that he would be alleged to have  shown as escaped from the police escort party custody and  subsequently  killed  in  a  fake  encounter.   True  to  his  apprehension,  the  premonition  came true  as  the  events  such as  his  alleged escape from the escape custody on  26.12.2006 registered with Ahmedabad Railway PS vide CR  No. 294/2006 on 27.12.2006 and alleged fake encounter  on 28.12.2006 registered with Ambaji  Police Station vide  CR No. 115/2006 dated 28.12.2006.

54. Shri V.K. Goda, who had demitted the office of IG of  Police,  Udaipur  on  31.10.2005  on  superannuation  has  stated  during  his  examination  by  the  CBI  that  he  had  received  a  letter  in  the  month  of  November  2005  addressed  to  him  in  his  named  cover  by  the  family  members of Tulsiram Prajapati which was duly forwarded  by the then MLA.  The letter could not be made available to  the CBI.  As per the statement of Shri Godila, the contents  of the letter revealed that the family members of Tulsiram  Prajapati  apprehended  that  Shri  Tulsiram  Prajapati  was  illegally detained by Police and was in their illegal custody.  The letter also revealed that the state of despair of family  members of Shri Tulsiram Prajapati as they apprehended  

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death  for  which  they immediately  wanted  action  by  the  then  IG  of  Police,  Udaipur  through  the  people  representative.   This  is  an  additional  corroboration  that  Tulsiram Prajapati was in the Police Custody just prior to  the encounter  of  Sohrabuddin.   This  seen in  conjunction  with other evidence indicates that Tulsiram Prajapati was  the person who revealed the location of Sohrabuddin to the  accused police officers of Rajasthan and Gujarat.

55. The  investigation  has  further  disclosed  that  while  lodged in Udaipur Jail, in addition to the above mentioned  prayers  made  by  Tulsiram  to  the  Human  Rights  Commission,  different  courts,  he  explained the  true  fact  behind the fake encounter of Sohrabuddin to his jail inmate  friends.  The police kept the telephone number being used  by some of the criminals inside the jail and outside the jail  under  interception  and  allegedly  had  received  the  information that Tulsiram was trying to run away from the  custody.   Both  accused  Shri.  Dinesh  MN  (A-3)  and  IG,  Udaipur  Shri  Rajeev Dasot  sent  letters  for  permission  to  intercept  the  telephone  numbers  alleged  having  such  information.   Thereafter,  when  Tulsiram  Prajapati  was  brought  to  Ahmedabad  on  28.11.2006  along  with  co- accused  Mohd.  Azam  in  connection  with  Case  No.  1124/2004 (Popular Builders Firing Case) in JM Court No.  13,  Ahmedabad,  around  50  police  commandoes  were  detailed for the escort party.  On both these occasions, the  mother,  wife  and  daughter  of  Azam  Khan  accompanied  them from Udaipur to Ahmedabad and back.  Later on the  police decided to kill Tulsiram and whereas on subsequent  hearing fixed for 26.12.2006, Shri Tulsiram Prajapati was  deliberately  sent  alone  on  25.12.2006.   His  usual  companion/co-accused  Azam  Khan  was  detained  in  a  scooter theft case.  Interestingly, the above scooter theft  case  registered  in  Ambamata  PS  of  Udaipur  (Rajasthan)  vide  Case  No.  95/2004  was  already  detected,  vehicle  recovered  and handed over  to  the  complainant  in  2004  itself.   Thus,  foisting  a  case  against  Mohd.  Azam  and  sending  Tulsiram  Prajapati  alone  were  to  facilitate  the  murder  of  Tulsiram  Prajapati.   It  has  also  come  into  evidence  that  this  time  before  leaving  Udaipur  Jail  on  25.12.2006,  Tulsiram had expressed apprehension of  his  being killed in an encounter.  Contrary to the earlier two  occasions, this time only four police personnel were sent  from  the  jail  as  his  escort.   On  the  way  back  from  Ahmednagar to Udaipur, he was shown having run away  

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from the custody on the night intervening 26/27.12.2006.  Next day, he was killed in an alleged encounter.

56. The investigation  disclosed that  the Udaipur  Police  had  sent  letter  No.  1120  dated  27.12.2006  to  SP  Banaskantha, alleging that the call details of Tulsiram show  that he is hiding somewhere in Banaskantha.  As per the  documents  received  by  the  CBI  from  the  office  of  IG,  Udaipur, this letter was sent through fax at around 2332  hours  on  27.12.2006.   As  per  the  telephone  call  details  available,  the  phone  was  not  used  after  the  evening  of  26.12.2006 so there was no reason for Udaipur Police to  have information that Tulsiram was hiding somewhere in  Banaskantha.  This letter was nothing but an attempt to  provide  the Banaskantha police an opportunity  to stage- manage  the  encounter  of  Tulsiram  Prajapati  in  their  district.   Further,  the available  call  details  show that  on  27.12.2006 accused Shri Dinesh M.N. (A-3) was constantly  in touch with other accused Rajkumar over telephone till  confirmation of this fax.

57. In  the  investigation  conducted  by  the  CBI,  it  has  clearly emerged that killing of Tulsiram Prajapati was an  integral  part  of  the  criminal  conspiracy  hatched  by  the  accused  arising  out  the  same  transaction.   After  the  abduction  and  fake  encounter  of  Sohrabuddin  and  Kausarbi,  the  Supreme Court  was  seized  of  the  matter,  which had directed the State of Gujarat to investigate in  detail the above episode.  During such inquiry ordered by  Gujarat Government in obedience to the Hon’ble Supreme  Court, it emerged that police officials of ATS, Ahmedabad  were involved in the abduction and killing of Sohrabuddin  and Kausarbi…..

59. When it became clear and evident that….. (i) That  Tulsiram  Prajapati  was  the  sole  surviving  witness  to  the  abduction  of  Sohrabuddin  and  his  wife  Kausarbi. (ii) That the Mobile Call Detail Records pertaining to the  case  contained  important  piece  of  evidence  not  only  against accused Shri  Amit Shah (A-16),  Minister of  State  (MoS), Government of Gujarat, but other police officers of  Gujarat and Rajasthan, who worked at his behest to cover  up  the  fake  encounter  that  killed  Tulsiram Prajapati  on  28.12.2006.

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60. The analysis  of  Mobile  Call  Details  for  the week in  which the planning and execution of  Tulsiram Prajapati’s  encounter took place, reflects furry of call exchanged by  accused  Shri  Amit  Shah  (A-16),  MoS,  accused  Shri  D.G.  Vanzara (A-1), DIG Border Range, accused Shri Rajkumar  Pandian  (A-2),  SP,  ATS,  Shri  Vipul  Agarwal,  SP,  Banaskantha  and  accused  Shri  Dinesh  MN  (A-3),  SP,  Udaipur, Rajasthan, suggesting a sinister plan to eliminate  the  sole  witness  in  the  state-executed  Sohrabuddin  encounter.

67. Thus,  in  view  of  the  aforesaid  provision,  it  is  eminently  required  in  the  interest  of  justice  that  the  Tulsiram Prajapati fake encounter case be investigated and  tried along with Sohrabuddin fake encounter case as the  evidence procured so far shows that Tulsiram Prajapati’s  encounter took place as he was the prime witness to the  Sohrabuddin’s abduction.  As such both these cold blooded  murders  are inter-connected,  they ought  not  to  be tried  separately as it may give rise to conflicting findings, raise  issues of issue estoppels and/or res judicata and end up  derailing or frustrating the interest of justice.”  

26) As rightly  pointed out,  this  was the stand of  the CBI  

prior  to  passing  of  the  order  in  the  decision  dated  

08.04.2011 in W.P. (Crl.) No. 115 of 2007.  As a matter of  

fact, based on the above assertion of the CBI, this Court, in  

the  above matter,  entrusted  the  investigation  of  Tulsiram  

Prajapati’s killing also to the CBI.  It is also not in dispute that  

the above extracted status reports were part  of record of  

proceedings in W.P. (Crl.) No. 115 of 2007.

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27) Mr. Mahesh Jethamalani, learned senior counsel for the  

petitioner-Amit Shah also brought to our notice that he was  

arrested in the first FIR and chargesheet dated 23.07.2010  

and was further interrogated even on the question of alleged  

killing of Tulsiram Prajapati.  It is also brought to our notice  

that  when  the  petitioner-Amit  Shah  filed  regular  bail  

application, the CBI opposed the same contending that the  

alleged killing of Tulsiram Prajapati  as a part of the same  

series of acts, viz., killing of Sohrabuddin and Kausarbi.  The  

following objections were taken by the CBI while considering  

the bail application which are as under:-

“The  applicant  took  several  steps  by  systematically  eliminating evidence of the murder of Sohrabuddin.  One  witness  after  the  other  were  killed  either  surreptitiously  (Kausarbi) or another stage managed encounter (Tulsiram  Prajapati) 38. Learned senior counsel Mr. Tulsi submitted that the  case of  the prosecution is that the applicant is part and  parcel  of  the  larger  conspiracy  in  the  killing  of  Sohrabuddin, his wife and Tulsiram Prajapati and also the  conspiracy with regard to extortion of money.”

All the above assertions by the CBI support the stand of the  

petitioner.  It is also relevant to note the stand taken by the  

CBI and reliance placed on the same by this Court in the  

order dated 08.04.2011 in W.P. (Crl.) No. 115 of 2007, i.e.,  

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Narmada Bai (supra).  The relevant excerpts are quoted  

verbatim hereunder:-

“2(g)  It  is  the  further  case  of  the  petitioner  that  the  deceased  being  a  key  eye  witness  to  the  murder  of  Sohrabuddin and his wife Kausarbi, the team of Mr. D.G.  Vanzara and others planned to do away with him to avoid  his interrogation by Ms. Geeta Johri, Inspector General of  Police.   Hence,  the  petitioner  has  preferred  this  petition  before this Court praying for direction to CBI to register an  FIR and investigate the case.  (5) Stand of the CBI – respondent No.21:

(a) The  investigation  conducted in  R.C.  No.  4(S)/2010,  Special Crime Branch, Mumbai, as per the directions of this  Court in its order dated 12.01.2010, vide Writ Petition (Crl.)  No. 6 of 2007 revealed that the alleged fake encounter of  Tulsiram  Prajapati  on  28.12.2006  was  done  in  order  to  eliminate him as he was the key witness in the criminal  conspiracy of the abduction and killing of Sohrabuddin and  Kausarbi  by  the  powerful  and  the  influential  accused  persons…..   (c) The  murder  of  Tulsiram  Prajapati  took  place  on  28.12.2006,  case  was  registered  on  28.12.2006  and  Gujarat  CID  commenced  investigation  on  22.03.2007.  However,  even  after  a  lapse  of  3  years,  no  action  was  taken  against  any  of  the  accused.   As  directed  by  this  Court,  only  on  the  investigation  of  Tulsiram  Prajapati’s  case, the “larger conspiracy” would be established and the  mandate and tasks assigned by this Court to the CBI would  be accomplished both in letter and spirit towards the goal  of  a  fair  trial,  upholding  the  rule  of  law.   If  Tulsiram  Prajapati’s  fake encounter  case is  not  transferred to the  CBI for investigation, it may lead to  issue-estoppel or  res  judicata against prosecution.   13. As pointed out by the learned counsel for the petitioner  and the CBI, the said judgment records that there is strong  suspicion  that  the  ‘third  person’  picked  up  with  Sohrabuddin was Tulsiram Prajapati. 14) Pursuant to the said direction,  the CBI investigated  the cause of death of Sohrabuddin and his wife Kausarbi.  The CBI, in their counter affidavit,  has specifically stated  that as per their investigation Tulsiram Prajapati was a key  witness in the murder of Sohrabuddin and he was the ‘third  

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person’  who  accompanied  Sohrabuddin  from  Hyderabad  and killing of  Tulsiram Prajapati  was a part  of  the same  conspiracy.  It was further stated that all the records  qua  Tulsiram  Prajapati’s  case  were  crucial  to  unearth  the  “larger  conspiracy”  regarding  the  Sohrabuddin’s  case  which despite being sought were not given by the State of  Gujarat.  15 vi) The CBI submitted two reports-  Status Report  No.1  on  30.07.2010  and  a  week  thereafter,  they  filed  the  charge-sheet.  In pursuance of the charge-sheet, accused  No.16-Amit Shah was arrested on 25.07.2010 and released  on bail by the High Court of Gujarat on 29.10.2010.  The  order releasing him on bail is subject matter of challenge in  SLP (Crl.) No. 9003 of 2010.  The Status Report No.1, filed  by the CBI before the Bench on 30.07.2010 informed the  Court  that  Tulsiram  Prajapati  was  abducted  along  with  Sohrabuddin and Kausarbi and he was handed over to the  Rajasthan Police.   17. Inasmuch  as  the  present  writ  petition  is  having  a  bearing  on  the  decision  of  the  writ  petiton  filed  by  Rubabbuddin Sheikh and also the claim of the petitioner,  the  observations  made  therein,  particularly,  strong  suspicion  about  the  ‘third  person’  accompanied  Sohrabuddin,  it  is  but  proper  to  advert  factual  details,  discussion  and  ultimate  conclusion  of  this  Court  in  Rubabbuddin Sheikh’s case.

In Writ Petition No. 6 of 2007, Rubabbuddin Sheikh prayed  for direction for investigation by the CBI into the alleged  abduction and fake encounter of his brother Sohrabuddin  by  the  Gujarat  Police  Authorities  and  also  prayed  for  registration of an offence and investigation by the CBI into  the alleged encounter  of  one Tulsiram Prajapati,  a  close  associate of Sohrabuddin, who was allegedly used to locate  and  abduct  Sohrabuddin  and  his  wife  Kasurbi,  and  was  thus a material witness against the police personnel.   19) It is clear that the above judgment records that there  was a strong suspicion that the ‘third person’  picked up  with  Sohrabuddin  was  Tulsiram  Prajapati.   It  was  also  observed  that  the  call  records  of  Tulsiram  were  not  properly  analyzed and there  was  no justification  for  the  then Investigation Officer – Ms. Geeta Johri to have walked  out  of  the investigation  pertaining to  Tulsiram Prajapati.  The  Court  had  also  directed  the  CBI  to  unearth  “larger  conspiracy” regarding the Sohrabuddin’s murder.  In such  circumstances, we are of the view that those observations  

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and directions cannot lightly be taken note of and it is the  duty of the CBI to go into all the details as directed by the  Court.   23) If we analyze the allegations of the State and other  respondents  with  reference to  the  materials  placed with  the stand taken by the CBI, it would be difficult to accept it  in its entirety.  It is the definite case of the CBI that the  abduction  of  Sohrabuddin  and  Kausarbi  and  their  subsequent  murders  as  well  as  the  murder  of  Tulsiram  Prajapati are one series of acts, so connected together as  to  form the  same transaction  under  Section  220  of  the  Cr.P.C.  As rightly pointed out by the CBI, if two parts of the  same  transaction  are  investigated  and  prosecuted  by  different agencies, it may cause failure of justice not only  in one case but in other trial as well.  It is further seen that  there  is  substantial  material  already  on  record  which  makes it probable that the prime motive of elimination of  Tulsiram Prajapati was that he was a witness to abduction  of Sohrabuddin and Kausarbi.   37)…..In view of various circumstances highlighted and in  the light of the involvement of police officials of the State  of  Gujarat  and  police  officers  of  two  other  States,  i.e.  Andhra Pradesh and Rajasthan, it would 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.  

28) The findings rendered by us in Narmada Bai (supra)  

clearly show the acceptance of the contentions raised by the  

CBI that killing of two individuals and killing of third person,  

viz.,  Tulsiram  Prajapati  were  part  of  the  very  same  

conspiracy  and  in  the  same  series  of  acts  so  connected  

together that they will  have to be tried in one trial  under  

Section 220 of the Code.

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29) After the investigation of the second FIR, the CBI filed  

chargesheet  dated  04.09.2012  wherein,  among  others,  

petitioner-Amit Shah was also arrayed as one of the accused.  

By  pointing  out  various  averments/assertions  in  the  

chargesheet  dated  04.09.2012,  learned senior  counsel  for  

the petitioner pointed out that the CBI has merely conducted  

further  investigation  and  it  should  be  considered  

“supplementary chargesheet in the first FIR.”  The following  

stand of the CBI in the chargesheet dated 04.09.2012 are  

also relevant which are as under:-

“2….The  investigation  established  that  it  was  in  furtherance  of  a  criminal  conspiracy  by  the  principal  accused persons that Sohrabuddin was abducted and then  murdered by showing it off as an encounter and further for  the  purpose  of  screening  themselves  from  the  legal  consequences  of  their  crime,  the  accused  caused  the  disappearance of material witnesses to the pivotal fact of  abduction of Sohrabuddin by murdering them, first his wife,  Kauserbi  and  then  Tulsiram  Prajapati  who  was  accompanying Sohrabuddin  and his  wife  Kausarbi  at  the  time they were abducted, and, who had in fact facilitated  his abduction at the behest of accused D.G. Vanzara (A-2) …..

4.  Investigation  of  RC  4(S)/2010/SCB/Mumbai  disclosed  that  the  third  person  who  was  abducted  along  with  Sohrabuddin  and  Kausarbi  was  Tulsiram  Prajapati.   The  investigation  further  disclosed  that  he  was  a  material  witness/eye-witness to the abduction of Sohrabuddin and  his  wife  and  the  same  was  within  the  knowledge  of  accused Amit Shah (A-1),  D.G. Vanzara (A-2),  S. Pandian  Rajkumar (A-3) and Dinesh M.N. (A-4) and others.

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6.4….In the meantime, in accordance with his clandestine  agreement with Gujarat Police, Tulsiram Prajapati informed  them in advance about the plan of Sohrabuddin to travel to  Sangli from Hyderabad.

6.8  In  pursuance  of  the  criminal  conspiracy  to  screen  themselves from the legal consequences of the crime, the  accused acted in concert with each other to keep Tulsiram  Prajapati,  a  significant  material  eye  witness  to  the  abduction  of  Sohrabuddin  and  Kausarbi  by  the  accused  policemen of Gujarat police under their continuing control  and beyond the reach of others.  Accordingly, Dinesh M.N.  (A-4), the then SP Udaipur, who had also participated in the  murder  of  Sohrabuddin  on  26.11.2005,  ensured  by  directing Rajasthan Police to detain Tulsiram Prajapati on  the  very  same  day  i.e.,  26.11.2005  for  achieving  the  common object of keeping Tulsiram Prajapati under their  control.

6.13 On 08.02.2006, Tulsiram Prajapati was brought from  Central Jail, Udaipur to Ujjain, Madhya Pradesh.  When he  met  Narmada  Bai  and  Pawan  Kumar  Prajapati,  he  told  them  that  he  was  under  severe  stress  because  he  apprehended that the Gujarat and Rajasthan Police would  kill him in a false encounter.  He also confessed to them  that Gujarat Police had used him for tracing and abducting  Sohrabuddin  and  his  wife.   He  had  also  expressed  his  apprehension that the police would kill him because he was  a  witness  to  the  abduction  of  Sohrabuddin  and his  wife  Kausarbi. 6.26…..With  the object  of  shielding themselves from the  grave implications of abduction and murder of Sohrabuddin  and his wife Kausarbi, the accused expedited the pace of  their  criminal  conspiracy  as  aforesaid  to  abduct  and  murder Tulsiram Prajapati as soon as possible.

6.34…..during the relevant period to show that they were  acting  in  concert  with  each  other  in  furtherance  of  the  criminal  conspiracy  as  aforesaid  to  murder  Tulsiram  Prajapati who was no longer under their control and further  with the efforts  being made by Inspector V.L.  Solanki  to  examine him and record his statement with regard to the  abduction  of  Sohrabuddin  were  anxious  to  expedite  the  criminal conspiracy towards its culmination point.”

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6.51….This  establishes  the  fact  that  the  country  made  weapon was planted to cover up the murder of Tulsiram  Prajapati  in pursuance of  a criminal  conspiracy spanning  more  than  a  year  and  to  show  it  as  the  result  of  a  shootout/an encounter.

6.54…..for  participating  in  the  criminal  conspiracy  as  aforesaid  and  taking  it  towards  its  culmination  point  by  murdering Tulsiram Prajapati…..

6.62…..by so doing had intentionally provided the requisite  time  needed  by  the  co-accused  to  take  the  necessary  efforts to cause disappearance of human witness Tulsiram  Prajapati to their crime of abduction of  Sohrabuddin and  his wife precedent to their murders by murdering him as  well  and  thereby  had  facilitated  the  criminal  conspiracy  towards its culmination point…..

6.69…..Besides  this,  accused  Geetha  Johri  (A-18),  in  furtherance of a criminal conspiracy as aforesaid made all  attempts  to  delink  Tulsiram  Prajapati  case  from  the  Sohrabuddin fake encounter case to establish that the third  person who traveled with Sohrabuddin and Kausarbi in the  bus in the night of 22/23.11.2005 and was abducted was  somebody else and not  Tulsiram Prajapati  himself.   She  projected that the third person who was abducted along  with  Sohrabuddin  and  his  wife  Kauserbi  was  one  Kalimuddin of Hyderabad in spite of the fact that she had  knowledge that the third person was Tulsiram Prajapati as  made  know  to  her  by  her  Investigating  Officer  V.L.  Solanki…..”

30) The above details mentioned in the chargesheet dated  

04.09.2012 clearly show that what the CBI has conducted is  

mere  ‘further  investigation’  and  the  alleged  killing  of  

Tulsiram Prajapati was in continuance of and an inseparable  

part of the conspiracy which commenced in November, 2005  

by  abduction  of  Sohrabuddin,  Kausarbi  and  Tulsiram  

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Prajapati and which culminated into the final stage of alleged  

killing of Tulsiram Prajapati who was kept under the control  

of  accused  police  officers  since  he  was  a  material  eye-

witness  like  Kausarbi.  To  put  it  straight,  apart  from  the  

consistent  stand  of  the  CBI,  the  chargesheet  dated  

04.09.2012  itself  is  conclusive  to  show  that  the  said  

chargesheet, in law and on facts, deserves to be treated as  

‘supplementary chargesheet in the first FIR’.

Legal aspects as to permissibility/impermissibility of  second FIR :

31) Now,  let  us  consider  the  legal  aspects  raised  by  the  

petitioner-Amit Shah as well as the CBI.   The factual details  

which we have discussed in the earlier paragraphs show that  

right from the inception of entrustment of investigation to  

the CBI by order dated 12.01.2010 till  filing of the charge  

sheet  dated  04.09.2012,  this  Court  has  also  treated  the  

alleged  fake  encounter  of  Tulsiram  Prajapati  to  be  an  

outcome  of  one  single  conspiracy  alleged  to  have  been  

hatched in November, 2005 which ultimately culminated in  

2006.  In such circumstances, the filing of the second FIR  

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and a fresh charge sheet for  the same is  contrary to  the  

provisions of the Code suggesting that the petitioner was not  

being investigated, prosecuted and tried ‘in accordance with  

law’ .

32) This Court has consistently laid down the law on the  

issue interpreting the Code, that a second FIR in respect of  

an offence or different offences committed in the course of  

the same transaction is not only impermissible but it violates  

Article 21 of the Constitution.  In T.T. Anthony (supra), this  

Court has categorically held that registration of second FIR  

(which is not a cross case) is violative of Article 21 of the  

Constitution.  The following conclusion in paragraph Nos. 19,  

20  and  27  of  that  judgment  are  relevant  which  read  as  

under:

“19. The scheme of CrPC is that an officer in charge of a  police station has to commence investigation as provided  in Section 156 or 157 CrPC on the basis of entry of the first  information report, on coming to know of the commission  of a cognizable offence. On completion of investigation and  on the basis of the evidence collected, he has to form an  opinion under Section 169 or 170 CrPC, as the case may  be,  and  forward  his  report  to  the  Magistrate  concerned  under Section 173(2) CrPC. However, even after filing such  a report, if he comes into possession of further information  or  material,  he  need  not  register  a  fresh  FIR;  he  is  

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empowered  to  make further  investigation,  normally  with  the  leave  of  the  court,  and  where  during  further  investigation  he  collects  further  evidence,  oral  or  documentary, he is obliged to forward the same with one  or more further reports; this is the import of sub-section (8)  of Section 173 CrPC.

20.  From the above discussion  it  follows  that  under  the  scheme of the provisions of Sections 154, 155, 156, 157,  162, 169, 170 and 173 CrPC only the earliest or the first  information in  regard to the commission of  a cognizable  offence  satisfies  the  requirements  of  Section  154  CrPC.  Thus there can be no second FIR and consequently there  can  be  no  fresh  investigation  on  receipt  of  every  subsequent information in respect of the same cognizable  offence or the same occurrence or incident giving rise to  one or more cognizable offences. On receipt of information  about a cognizable offence or an incident giving rise to a  cognizable offence or offences and on entering the FIR in  the station house diary, the officer in charge of a police  station  has  to  investigate  not  merely  the  cognizable  offence  reported  in  the  FIR  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 reports as provided in Section 173 CrPC.

27. A just balance between the fundamental rights of the  citizens under Articles 19 and 21 of the Constitution and  the  expansive  power  of  the  police  to  investigate  a  cognizable  offence has to  be struck by the court.  There  cannot be any controversy that sub-section (8) of Section  173  CrPC  empowers  the  police  to  make  further  investigation,  obtain  further  evidence  (both  oral  and  documentary)  and forward a further report  or  reports  to  the Magistrate. In  Narang case it was, however, observed  that  it  would  be  appropriate  to  conduct  further  investigation  with the permission  of  the court.  However,  the  sweeping  power  of  investigation  does  not  warrant  subjecting a citizen each time to fresh investigation by the  police in respect of the same incident, giving rise to one or  more  cognizable  offences,  consequent  upon  filing  of  successive  FIRs  whether  before  or  after  filing  the  final  report  under  Section  173(2)  CrPC.  It  would  clearly  be  beyond the purview of Sections 154 and 156 CrPC, nay, a  case of abuse of the statutory power of investigation in a  

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given case. In our view a case of fresh investigation based  on  the  second  or  successive  FIRs,  not  being  a  counter- case,  filed  in  connection  with  the  same  or  connected  cognizable offence alleged to have been committed in the  course  of  the  same transaction  and in  respect  of  which  pursuant to the first FIR either investigation is under way  or final report under Section 173(2) has been forwarded to  the Magistrate,  may be a  fit  case for  exercise of  power  under Section 482 CrPC or under Articles 226/227 of the  Constitution.”

The  above  referred  declaration  of  law  by  this  Court  has  

never  been  diluted  in  any  subsequent  judicial  

pronouncements even while carving out exceptions.

33) Mr.  Rawal,  learned  ASG,  by  referring  T.T.  Anthony  

(supra) submitted that the said principles are not applicable  

and relevant to the facts and circumstances of this case as  

the said judgment laid down the ratio that there cannot be  

two  FIRs  relating  to  the  same  offence  or  occurrence.  

Learned ASG further pointed out that in the present case,  

there  are  two  distinct  incidents/occurrences,  inasmuch  as  

one  being  the  conspiracy  relating  to  the  murder  of  

Sohrabuddin  with  the  help  of  Tulsiram  Prajapati  and  the  

other being the conspiracy to murder Tulsiram Prajapati - a  

potential  witness  to  the  earlier  conspiracy  to  murder  

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Sohrabuddin.   We  are  unable  to  accept  the  claim of  the  

learned ASG.  As a matter of fact, the aforesaid proposition  

of  law making  registration  of  fresh  FIR  impermissible  and  

violative of Article 21 of the Constitution is  reiterated,  re-

affirmed in the following subsequent decisions of this Court:

1. Upkar Singh vs. Ved Prakash (2004) 13 SCC 292

2. Babubhai vs.  State of Gujarat & Ors. (2010) 12  

SCC 254

3. Chirra Shivraj vs. State of A.P. AIR 2011 SC 604

4. C. Muniappan vs.  State of Tamil Nadu (2010) 9  

SCC 567.

In  C.  Muniappan (supra),  this  Court  explained  

“consequence test”, i.e., if an offence forming part of the  

second FIR arises as a consequence of the offence alleged  

in the first FIR then offences covered by both the FIRs are  

the  same  and,  accordingly,  the  second  FIR  will  be  

impermissible  in  law.   In  other  words,  the  offences  

covered in both the FIRs shall have to be treated as a part  

of  the  first  FIR.   In  the  case  on  hand,  in  view  of  the  

principles  laid  down in  the above referred decisions,  in  

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particular,  C. Muniappan (supra) as well as in  Chirra  

Shivraj  (supra), apply with full  force since according to  

the CBI itself it is the case where:-

(i) The  larger  conspiracy  allegedly  commenced  in  

November, 2005 and culminated into the murder  

of Tulsiram Prajapati in December, 2006 in a fake  

encounter;

(ii) The alleged fake encounter of Tulsiram Prajapati  

was a consequence of  earlier  false encounter  of  

Sohrabuddin and Kausarbi since Tulsiram Prajapati  

was  an  eye  witness  to  the  abduction  and  

consequent murders of Sohrabuddin and Kausarbi;  

and

(iii) Tulsiram Prajapati  was  allegedly  kept  under  the  

control of accused police officers, as a part of the  

same  conspiracy,  till  the  time  he  was  allegedly  

killed in a fake encounter.

In view of the factual situation as projected by the CBI itself,  

the ratio laid down by this Court in C. Muniappan (supra),  

viz.,  merely  because  two  separate  complaints  had  been  

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lodged did not mean that they could not be clubbed together  

and one chargesheet could not be filed [See T.T. Anthony  

(supra)].   

34) In view of the consistent stand taken by the CBI, at this  

juncture, CBI may not be permitted to adopt a contradictory  

stand.   

35) Learned counsel for the petitioner has placed reliance  

on  the  following  decisions  of  this  Court  which  explained  

“same transaction”:

(i) Babulal vs. Emperor , AIR 1938 PC 130

(ii) S.  Swamirathnam vs.  State of  Madras, AIR  1957 SC  

340

(iii) State of A.P. vs. Kandimalla Subbaiah & Anr., AIR  

1961 SC 1241

(iv) State of A.P. vs. Cheemalapati Ganeswara Rao &  

Anr., AIR 1963 SC 1850

36) In  Babulal (supra), the Privy Council has held that if  

several  persons conspire  to  commit  offences,  and commit  

overt acts in pursuance of the conspiracy (a circumstance  

which  makes  the  act  of  one  the  act  of  each  and  all  the  

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conspirators), these acts are committed in the course of the  

same transaction, which embraces the conspiracy and the  

acts done under it.   The common concert and agreement  

which constitute the conspiracy, serve to unify the acts done  

in pursuance of it.

37) In Swamirathnam (supra), the following conclusion in  

para 7 is relevant:

“7.   On  behalf  of  the  appellant  Abu  Bucker  it  was  contended that there has been misjoinder of  charges on  the  ground  that  several  conspiracies,  distinct  from each  other,  had been lumped together  and tried  at  one trial.  The  Advocate  for  Swamirathnam,  however,  did  not  put  forward this submission.   We have examined the charge  carefully and find no ground for accepting the contention  raised.   The  charge  as  framed,  discloses  one  single  conspiracy, although spread over several years.  There was  only one object of the conspiracy and that was to cheat  members of the public.  The fact that in the course of years  others  joined the conspiracy or  that several  incidents of  cheating took place in pursuance of the conspiracy did not  change  the  conspiracy  and  did  not  split  up  a  single  conspiracy into several conspiracies.  It was suggested that  although the modus operandi may have been the same,  the  several  instances  of  cheating  were  not  part  of  the  same  transaction.   Reliance  was  placed  on  the  cast  of  Sharpurji Sorabji v. Emperor, AIR 1936 Bom 154 (A) and on  the cast of Choragudi Venkatadari, In re. ILR 33 Mad 502  (B).  These cases are not in point.  In the Bombay case, no  charge of conspiracy had been framed and the decision in  the  Madras  case  was  given  before  Section  120-B  was  introduced into the Indian Penal Code.  In the present case,  the  instances  of  cheating  were  in  pursuance  of  the  conspiracy  and  were  therefore  parts  of  the  same  transaction.”

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38) In  Kandimalla  Subbaiah  (supra),  this  Court  held  

where  the  alleged  offence  have  been  committed  in  the  

course  of  the  same  transaction,  the  limitation  placed  by  

Section 234(1) cannot operate.   

39) In  Cheemalapati  Ganeswara  Rao  (supra),  while  

considering  the  scope  of  Section  239  of  the  old  Code  

(Section 220 in the new Code), this Court held:  

“28. The  decision  of  the  Allahabad  High  Court  in  T.B.  Mukherji case directly in point and is clearly to the effect  that  the  different  clauses  of  Section  239  are  mutually  exclusive in the sense that it is not possible to combine the  provisions of two or more clauses in any one case and to  try jointly several persons partly by applying the provisions  of one clause and partly by applying those of another or  other clauses. A large number of decisions of the different  High  Courts  and  one  of  the  Privy  Council  have  been  considered  in  this  case.  No  doubt,  as  has  been  rightly  pointed out in this case, separate trial is the normal rule  and joint trial  is  an exception.  But while this principle is  easy to appreciate and follow where one person alone is  the accused and the interaction or intervention of the acts  of more persons than one does not come in, it would where  the same act is committed by several persons, be not only  inconvenient but injudicious to try all the several parsons  separately. This would lead to unnecessary multiplicity of  trials  involving avoidable inconvenience to the witnesses  and avoidable expenditure of public time and money. No  corresponding  advantage can be gained by  the accused  persons  by  following  the  procedure  of  separte  trials.  Where, however, several offences are alleged to have been  committed  by  several  accused  persons  it  may  be  more  reasonable to follow the normal rule of separate trials. But  here, again, if those offences are alleged not to be wholly  unconnected but as forming part of the same transaction  

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the only consideration that will justify separate trials would  be the embarrassment or difficulty caused to the accused  persons in defending themselves. We entirely agree with  the High Court that joint trial should be founded on some  “principle”. ….  

40) Learned ASG placed reliance on the following decisions:

(i) Anju Chaudhary vs. State of U.P. & Anr.,  

2012(12) Scale 619

(ii) Babubhai vs. State of Gujarat (2010) 12 SCC 254

(iii) Surender Kaushik & Ors. vs. State of U.P. &  

Ors., JT 2013 (3) SC 472  

(iv) Nirmal Singh Kahlon vs. State of Punjab (2009) 1  

SCC 441

(v) Ram Lal Narang vs. State (Delhi Admn.),  (1979)  

2 SCC 322

(vi) Upkar Singh vs. Ved Prakash & Ors. (2004) 13  

SCC 292

(vii) Kari Choudhary vs. Mst. Sita Devi & Ors. (2002)  

1 SCC 714.

41) In Anju Chaudhary (supra) this Court was concerned  

with a case in which the second FIR was not connected with  

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the offence alleged in the first FIR.  After carefully analyzing  

the same, we are of the view that it has no relevance to the  

facts of the present case.

42) In the case of Babubhai (supra), the very same Bench  

considered the permissibility of more than one FIR and the  

test of sameness.  After explaining FIR under Section 154 of  

the Code, commencement of the investigation, formation of  

opinion under Sections 169 or 170 of the Code, police report  

under Section 173 of the Code and statements under Section  

162 of the Code, this Court, has held that the Court has to  

examine the facts and circumstances giving rise to both the  

FIRs   and  the  test  of  sameness  is  to  applied  to  find  out  

whether both the FIRs relate to the same incident in respect  

of  the  same occurrence or  are in  regard  to  the incidents  

having  two or  more parts of  the same transaction.   This  

Court further held that if  the answer is in affirmative, the  

second FIR is liable to be quashed.  It was further held that in  

case the contrary is proved, where the version in the second  

FIR  is  different  and  is  in  respect  of  the  two  different  

incidents/crimes, the second FIR is permissible.  This Court  

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further explained that in case in respect of the same incident  

the accused in the first FIR comes forward with a different  

version or counterclaim, investigation on both the FIRs has  

to be conducted.  It is clear from the decision that if two FIRs  

pertain  to  two  different  incidents/crimes,  second  FIR  is  

permissible.  In the light of the factual position in the case on  

hand, the ratio in that decision is not helpful to the case of  

the CBI.

43) The CBI has also placed reliance on a recent decision of  

this Court in Surender Kaushik (supra).  A careful perusal  

of the facts which arose in the said case would disclose that  

three FIRs which formed the subject matter of the said case  

were registered by three different complainants.  Two of the  

FIRs consisted of cross cases inasmuch as the complainant  

of the first FIR was accused in the other while the accused in  

the first  FIR was the complainant in the second FIR.   The  

third  FIR  was  filed  by  a  third  person  citing  both  the  

complainants of first two FIRs as accused persons.  In view of  

the above peculiar  facts  situation arising in  the said case  

that the second and third FIRs were not quashed by the High  

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Court,  which  decision  was  upheld  by  this  Court,  we  are  

satisfied that the said decision has no relevance to the facts  

of the present case.

44) In the case of Nirmal Singh Kahlon (supra), this Court  

has carved out an exception for filing a second FIR.  As per  

the exception carved out in the said case, the second FIR lies  

in a case where the first FIR does not contain any allegations  

of criminal conspiracy.  On the other hand, in the case on  

hand,  the  first  FIR  itself  discloses  an  offence  of  alleged  

criminal conspiracy and it was this conspiracy which the CBI  

was directed to unearth in the judgment dated 12.01.2010  

based on  which  the  CBI  filed  its  first  FIR,  hence,  the  CBI  

cannot place reliance on this judgment to justify the filing of  

the second FIR and a fresh charge sheet.  

45) Ram Lal Narang (supra) was cited to be an authority  

carving  out  an  exception  to  the  general  rule  that  there  

cannot be a second FIR in respect of the same offence.  This  

Court, in the said decision, held that a second FIR would lie  

in an event when pursuant to the investigation in the first  

FIR, a larger conspiracy is disclosed, which was not part of  

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the  first  FIR.   In  the  case  on  hand,  while  entrusting  the  

investigation  of  the  case  relating  to  the  killing  of  

Sohrabuddin and Kausarbi to the CBI,  this Court,  by order  

dated  12.01.2010,  expressed  a  suspicion  that  Tulsiram  

Prajapati  could  have  been  killed  because  he  was  an  eye  

witness to the killings of Sohrabuddin and Kausarbi.

46) The CBI also filed an FIR on 01.02.2010 based upon the  

aforesaid  judgment  dated  12.01.2010  and  conducted  the  

investigation reaching to a conclusion that conspiracy to kill  

Sohrabuddin  and  Kausarbi  and  conspiracy  to  kill  Tulsiram  

Prajapati  were  part  of  the  same  transaction  inasmuch  as  

both  these  conspiracies  were  entered  into  from the  very  

outset in November, 2005.  Based upon its investigation, the  

CBI filed a status report (s) before this Court and an affidavit  

in Writ Petition (Crl.) No. 115 of 2007 bringing to the notice  

of this Court that killing of Tulsiram Prajapati was also a part  

of the same transaction and very same conspiracy in which  

killings of Sohrabuddin and Kausarbi took place and unless  

the CBI is entrusted with the investigation of Tulsiram case,  

it will not be able to unearth the larger conspiracy covered in  

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the first FIR.  The fact that even as per the CBI, the scope of  

conspiracy  included  alleged  killing  of  Sohrabuddin  and  

Kausarbi and alleged offence of killing of Tulsiram Prajapati  

and  the  same  is  unequivocally  established  by  the  order  

passed by this Court on 12.08.2010 in Writ Petition (Crl.) No.  

6  of  2007  which  is  fortified  by  the  status  report  dated  

11.11.2011 filed by the CBI has already been extracted in  

paragraphs supra.  

47) In the light of the factual details, since the entire larger  

conspiracy is covered in the first FIR dated 01.02.2010 and  

in  the  investigation  of  the  said  FIR,  the  CBI,  after  

investigating  Tulsiram  Prajapati’s  encounter  recorded  a  

finding  in  supplementary  charge  sheet  dated  22.10.2010  

filed in the killings of Sohrabuddin and Kausarbi case that  

the said encounter was a fake one, we are satisfied that the  

decision in Ramlal Narang (supra) would not apply to the  

facts of the case on hand.  Even otherwise, as pointed out by  

learned senior counsel for the petitioner, in Ramlal Narang  

(supra), the chargesheet filed pursuant to the first FIR was  

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withdrawn which was a fact which weighed with this Court  

while delivering the judgment in the second case.

48) Upkar  Singh (supra) also  carves  out  a  second  

exception to the rule prohibiting lodging of second FIR for  

the  same  offence  or  different  offences  committed  in  the  

course of the transaction disclosed in the first FIR.  The only  

exception  to  the  law  declared  in  T.T.  Anthony (supra),  

which is carved out in Upkar Singh (supra) is to the effect  

that when the second FIR consists of alleged offences which  

are  in  the  nature  of  the  cross  case/cross  complaint  or  a  

counter  complaint,  such  cross  complaint  would  not  be  

permitted as second FIR.  In the case on hand, it is not the  

case of the CBI that the FIR in Tulsiram Prajapati’s case is a  

cross  FIR  or  a  counter  complaint  to  the  FIR  filed  in  

Sohrabuddin  and  Kausarbi’s  case  being  FIR  dated  

01.02.2010.   

49) The ratio laid down in Kari Choudhary’s case (supra)  

is heavily relied on by learned ASG appearing for the CBI.  In  

that  decision,  it  was  held  that  when  there  are  two  rival  

versions in respect of the same episode, they would normally  

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take the shape of two different FIRs and investigation can be  

carried on under  both of  them by the  same investigating  

agency.   While  there  is  no  quarrel  as  to  the  above  

proposition, after carefully considering the factual position,  

we are of the view that the said decision is not helpful to the  

case on hand.  

Maintainability of writ petition under Article 32:  

50) Regarding  the  maintainability,  namely,  filing  a  writ  

petition under Article 32 of the Constitution of India, learned  

ASG submitted that it is only on complete examination and  

appreciation of facts, materials and evidence that it can be  

decided as to whether these distinct conspiracies form part  

of the same transaction in view of the law laid down by this  

Court.   He  further  pointed  out  that  the  CBI  which  is  the  

investigating agency, after a full fledged investigation, came  

to  a  conclusion  that  the  conspiracy  to  eliminate  Tulsiram  

Prajapati  was a distinct and separate offence, accordingly,  

such disputed questions of fact are not and ought not to be  

decided in a writ petition under Article 32.  He also pointed  

out  that  apart  from  the  fact  that  there  are  sufficient  

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remedies to raise such a plea under the Code before a court  

of  competent  jurisdiction,  such  disputed  questions  of  fact  

can  only  be  adjudicated  after  carefully  examining  and  

appreciating the evidence led in.  It is also pointed out that  

there is no question of any prejudice suffered on account of  

prayer of the petitioner since if the offences are distinct and  

separate which is so emerging from the present case, there  

can neither be joint trial nor could the charge sheet filed in  

the present case be treated as supplementary charge sheet.  

As  a  concluding  argument,  Mr.  Rawal,  learned  ASG  

submitted that this Court in exercise of its jurisdiction under  

Article 32 may not like to adjudicate such disputed questions  

of fact which require evidence to be led and its appreciation.  

51) As against this, Mr. Mahesh Jethmalani, learned senior  

counsel for the petitioner submitted that the CBI is not faced  

with any prejudice which is to be caused to it, if the relief as  

prayed  for  by  the  petitioner  is  granted.   Admittedly,  the  

petitioner is  not praying for  quashing of the charge sheet  

dated 04.09.2012.   During the  course  of  argument,  when  

this  Court  specifically  put  a  question  to  learned  ASG  

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appearing for the CBI as to what prejudice would be caused  

to  the  CBI  if  instead  of  treating  the  charge  sheet  dated  

04.09.2012 to be fresh and independent charge sheet, the  

same will be treated as a supplementary charge sheet in the  

first charge sheet, there was no definite answer as to what  

prejudice  would  be  caused  to  the  CBI.   For  the  sake  of  

repetition, it is relevant to mention that in our order dated  

08.04.2011 in Narmada Bai (supra), while disposing of the  

said writ petition, this Court directed the CBI to take up the  

investigation  as  prayed  accepting  their  contention  that  

killing of Tulsiram Prajapati is a part of the same series of  

acts  in  which  Sohrabuddin  and  Kausarbi  were  killed  and,  

therefore,  Tulsiram  Prajapati  encounter  should  also  be  

investigated by the CBI.  Accepting the above assertion of  

the  CBI,  this  Court  directed  to  complete  the  investigation  

within six months.  

Summary:

52) a) This  Court  accepting  the  plea  of  the  CBI  in  

Narmada Bai (supra) that killing of Tulsiram Prajapati  is  

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part of the same series of cognizable offence forming part of  

the first FIR directed the CBI to “take over” the investigation  

and did not grant the relief prayed for i.e., registration of a  

fresh FIR.   Accordingly,  filing of  a fresh FIR by the CBI  is  

contrary to various decisions of this Court.  

b) The  various  provisions  of  the  Code  of  Criminal  

Procedure clearly show that an officer-in-charge of a police  

station  has  to  commence  investigation  as  provided  in  

Section 156 or 157 of the Code on the basis of entry of the  

First  Information  Report,  on  coming  to  know  of  the  

commission  of  cognizable  offence.   On  completion  of  

investigation  and  on  the  basis  of  evidence  collected,  

Investigating Officer has to form an opinion under Section  

169  or  170  of  the  Code  and  forward  his  report  to  the  

concerned Magistrate under Section 173(2) of the Code.   

c) Even  after  filing  of  such  a  report,  if  he  comes  into  

possession  of  further  information  or  material,  there  is  no  

need  to  register  a  fresh  FIR,  he  is  empowered  to  make  

further  investigation  normally  with  the  leave of  the  Court  

and where during further investigation,  he collects further  

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evidence, oral or documentary, he is obliged to forward the  

same with one or more further reports which is evident from  

sub-section  (8)  of  Section  173  of  the  Code.   Under  the  

scheme of  the provisions  of  Sections 154,  155,  156,  157,  

162, 169, 170 and 173 of the Code, only the earliest or the  

first information in regard to the commission of a cognizable  

offence  satisfies  the  requirements  of  Section  154  of  the  

Code.  Thus, there can be no second FIR and, consequently,  

there  can  be  no  fresh  investigation  on  receipt  of  every  

subsequent information in respect of  the same cognizable  

offence or the same occurrence or incident giving rise to one  

or more cognizable offences.   

d) Further,  on receipt  of  information about a cognizable  

offence or an incident giving rise to a cognizable offence or  

offences and on entering FIR in the Station House Diary, the  

officer-in-charge of the police station has to investigate not  

merely the cognizable offence reported in the FIR 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 reports as provided in Section 173 of  

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the  Code.   Sub-section  (8)  of  Section  173  of  the  Code  

empowers the police to make further investigation,  obtain  

further evidence (both oral and documentary) and forward a  

further  report  (s)  to  the  Magistrate.   A  case  of  fresh  

investigation  based on  the  second or  successive  FIRs  not  

being a counter case, filed in connection with the same or  

connected  cognizable  offence  alleged  to  have  been  

committed  in  the  course  of  the  same  transaction  and  in  

respect of which pursuant to the first FIR either investigation  

is underway or final report under Section 173(2) has been  

forwarded to the Magistrate, is liable to be interfered with by  

the High Court by exercise of power under Section 482 of the  

Code or under Articles 226/227 of the Constitution.   

e) First  Information  Report  is  a  report  which  gives  first  

information with  regard to  any offence.   There cannot be  

second FIR  in  respect  of  the  same offence/event  because  

whenever  any  further  information  is  received  by  the  

investigating agency, it is always in furtherance of the first  

FIR.   

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f) In the case on hand, as explained in the earlier paras, in  

our opinion, the second FIR was nothing but a consequence  

of the event which had taken place on 25/26.11.2005.  We  

have already concluded that this Court having reposed faith  

in the CBI accepted their contention that Tulsiram Prajapati  

encounter  is  a part  of the same chain of  events in which  

Sohrabuddin and Kausarbi were killed and directed the CBI  

to “take up” the investigation.  

g) For vivid understanding, let us consider a situation in  

which Mr. ‘A’ having killed ‘B’ with the aid of ‘C’, informs the  

police that unknown persons killed ‘B’. During investigation,  

it revealed that ‘A’ was the real culprit and ‘D’ abetted ‘A’ to  

commit the murder. As a result, the police officer files the  

charge  sheet  under  Section  173(2)  of  the  Code  with  the  

Magistrate.  Although,  in  due  course,  it  was  discovered  

through further investigation that  the person who abetted  

Mr. ‘A’ was ‘C’ and not ‘D’ as mentioned in the charge sheet  

filed under Section 173 of  the Code.   In  such a scenario,  

uncovering of the later fact that ‘C’ is the real abettor will  

not  demand a  second FIR  rather  a  supplementary  charge  

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sheet  under  section  173(8)  of  the  Code  will  serve  the  

purpose.  

h) Likewise, in the case on hand, initially the CBI took a  

stand that the third person accompanying Sohrabbuddin and  

Kausarbi was Kalimuddin. However, with the aid of further  

investigation, it unveiled that the third person was Tulsiram  

Prajapati. Therefore, only as a result of further investigation,  

the CBI has gathered the information that the third person  

was Tulsiram Prajapati. Thus a second FIR in the given facts  

and  circumstances  is  unwarranted;  instead  filing  of  a  

supplementary charge sheet in this regard will  suffice the  

issue.  

i) Administering  criminal  justice  is  a  two-end  process,  

where  guarding  the  ensured  rights  of  the  accused  under  

Constitution  is  as  imperative  as  ensuring  justice  to  the  

victim.  It  is  definitely  a  daunting  task  but  equally  a  

compelling  responsibility  vested  on  the  court  of  law  to  

protect and shield the rights of both. Thus, a just balance  

between the fundamental rights of the accused guaranteed  

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under the Constitution and the expansive power of the police  

to investigate a cognizable offence has to be struck by the  

court. Accordingly, the sweeping power of investigation does  

not  warrant  subjecting  a  citizen  each  time  to  fresh  

investigation by the police in respect of the same incident,  

giving  rise  to  one  or  more  cognizable  offences.  As  a  

consequence, in our view this is a fit case for quashing the  

second F.I.R to meet the ends of justice.

j) The  investigating  officers  are  the  kingpins  in  the  

criminal  justice  system.  Their  reliable  investigation  is  the  

leading  step  towards  affirming  complete  justice  to  the  

victims  of  the  case.  Hence  they  are  bestowed  with  dual  

duties  i.e.  to  investigate  the  matter  exhaustively  and  

subsequently  collect  reliable  evidences  to  establish  the  

same.  

Conclusion:

53) In the light of the specific stand taken by the CBI before  

this Court in the earlier proceedings by way of assertion in  

the form of counter affidavit, status reports, etc. we are of  

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the view that filing of the second FIR and fresh charge sheet  

is violative of fundamental rights under Article 14, 20 and 21  

of the Constitution since the same relate to alleged offence  

in respect of which an FIR had already been filed and the  

court  has  taken  cognizance.   This  Court  categorically  

accepted the CBI’s plea that killing of Tulsiram Prajapati is a  

part of the same series of cognizable offence forming part of  

the first FIR and in spite of the fact that this Court directed  

the CBI to “take over” the investigation and did not grant the  

relief  as  prayed,  namely,  registration  of  fresh  FIR,  the  

present action of CBI filing fresh FIR is contrary to various  

judicial pronouncements which is demonstrated in the earlier  

part of our judgment.  

54) In  view  of  the  above  discussion  and  conclusion,  the  

second  FIR  dated  29.04.2011  being  RC  No.  

3(S)/2011/Mumbai  filed  by  the  CBI  is  contrary  to  the  

directions issued in judgment and order dated 08.04.2011 by  

this Court  in  Writ  Petition (Criminal)  No.  115 of 2009 and  

accordingly the same is quashed.   As a consequence,  the  

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charge  sheet  filed  on  04.09.2012,  in  pursuance  of  the  

second FIR, be treated as a supplementary charge sheet in  

the first FIR.  It is made clear that we have not gone into the  

merits of the claim of both the parties and it is for the trial  

Court  to  decide  the  same  in  accordance  with  law.  

Consequently,  Writ  Petition  (Criminal)  No.  149  of  2012  is  

allowed.  Since the said relief is applicable to all the persons  

arrayed as accused in the second FIR, no further direction is  

required in Writ Petition (Criminal) No. 5 of 2013.       

 ...…………….…………………………J.            (P. SATHASIVAM)                                   

 ...…....…………………………………J.     (DR. B.S. CHAUHAN)                  

NEW DELHI; APRIL 8, 2013.     

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