REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   1765                    OF 2011 (ARISING OUT OF S.L.P. (CRL.) NO. 1088 OF 2008)

JAKIA NASIM AHESAN & ANR. — APPELLANTS

VERSUS

STATE OF GUJARAT & ORS. — RESPONDENTS

O R D E R

1. Leave granted.  

2. This  appeal  by  special  leave,  arises  out  of  the  judgment  dated  2nd  

November,  2007,  delivered  by  the  High  Court  of  Gujarat  at  

Ahmedabad  in  Special  Criminal  Application  No.  421  of  2007,  

dismissing the writ petition preferred by one of the hapless victims of  

the abominable and woeful events which took place in the State of  

Gujarat  between February, 2002 and May, 2002 after the abhorrent  

Godhra incident on 27th February, 2002. By the said petition under

Article 226 of the Constitution of India read with Section 482 of the  

Code  of  Criminal  Procedure,  1973  (for  short  “the  Code”),  the  

appellant had sought for a direction to the Director General of Police,  

State of Gujarat, to register her private complaint dated 8th June, 2006  

as a First  Information Report and direct  investigation therein by an  

independent agency.  By the impugned judgment, the High Court has  

come to the conclusion that since a remedy under Section 190 read  

with Section 200 of the Code was available to the appellant, the writ  

petition was not tenable.  The writ petition was accordingly dismissed  

by the High Court with the observation that if the appellant had got  

certain  additional  material  against  some  persons  accused  in  her  

complaint, it  was open to her to approach the investigating agency,  

requesting   further  investigation,  or,  alternatively  she  could  herself  

approach  the  Court  concerned  for  further  investigation  in  terms  of  

Section 173(8) of the Code.

3. The appellant lost her husband, a former Member of Parliament, in the  

calamitous events  which took place  on  28th February,  2002,  in  the  

surroundings  of  Gulberg  Society,  Ahmedabad,  where  the  appellant  

resided along with her family.  An FIR relating to the incident was  

registered  by  the  Police  with  Meghaninagar  Police  Station,  

Ahmedabad. After investigation, on the filing of the charge-sheet, the  

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case was committed to the Court of Sessions, Ahmedabad. It was the  

case of the appellant that subsequently she received certain material  

which showed that the incidents which took place during the period  

between         27th February, 2002 and 10th May, 2002, were aided,  

abetted   and  conspired  by  some  responsible  persons  in  power,  in  

connivance with the State Administration, including the Police. The  

appellant  thus  sought  registration  of  another  FIR  against  certain  

persons named in the complaint,  dated 8th June, 2006,  for  offences  

punishable under Section 302 read with Section 120B as also under  

Section 193 read with Sections 114,  186 & 153A, 186,  187 of the  

Indian  Penal  Code,  1860.  However,  as  the  police  declined  to  take  

cognizance of her complaint,  the appellant filed the aforementioned  

petition before the High Court.  Having failed to convince the High  

Court that it was a fit case for investigation by an independent agency,  

the appellant-complainant, supported by an NGO, is before us in this  

appeal.

4. On 3rd March, 2008 while issuing notice to the Union of India and  

State of Gujarat, an Amicus Curiae was appointed to assist the Court.  

Vide order dated 27th April, 2009, the Special Investigation Team (for  

short  “the  SIT”),  which  had been constituted  vide  order  dated  26th  

March, 2008 to carry out further investigations in nine cases, subject  

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matter of Writ Petition No. 109 of 2003, was directed ‘to look into’,  

the  complaint  submitted  by  the  appellant  on  8th June,  2006  to  the  

Director  General  of Police,  Gujarat.   Pursuant  to the said direction  

Shri A.K. Malhotra, former D.I.G. (C.B.I.) and one of the members of  

the  SIT,  examined  a  number  of  witnesses  and looked  into  a  large  

number of  documents  made available  to him.  A report,  dated 12th  

May,  2010,  was  submitted  to  this  Court  by  the  Chairman,  SIT,  

concurring with the findings of Shri A.K. Malhotra.  

5. In  his  report  dated 12th May,  2010,  Shri  A.K.  Malhotra,  inter  alia  

recommended further investigation under Section 173(8) of the Code  

against  certain Police officials  and a Minister  in the State  Cabinet.  

Consequently, further investigation was conducted and a report dated  

17th November, 2010, was submitted by the SIT.  On 23rd November,  

2010,  Shri  Raju  Ramachandran,  Senior  Advocate  and  Shri  Gaurav  

Agarwal,  Advocate, replaced the previous Amicus Curiae,  who had  

expressed his unwillingness to continue.  

6. On 20th January, 2011, a preliminary note was submitted by Shri Raju  

Ramachandran, the learned Amicus Curiae; whereon, vide order dated  

15th March,  2011, the SIT was directed to submit its  report,  and if  

necessary carry out  further investigation in light of the observations  

made in the said note. The SIT conducted further investigation under  

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Section  173(8)  of  the  Code in  Meghaninagar  Police  Station  Crime  

Report No.67 of 2002—Gulberg Society case, and submitted a report  

on 24th April,  2011.   After  examining the  said  report,  on 5th May,  

2011, the following order was passed :

“Pursuant to our order dated 15th March, 2011, the  Chairman,  Special  Investigation  Team (SIT)  has  filed report on the further investigations carried out  by  his  team  along  with  his  remarks  thereon.  Statements  of  witnesses  as  also  the  documents  have been placed on record in separate volumes.  Let a copy of all these documents along with the  report  of  the  Chairman be  supplied  to  Mr.  Raju  Ramachandran, the learned Amicus Curiae.

The  learned  Amicus  Curiae  shall  examine  the  report;  analyze  and  have  his  own  independent  assessment  of  the  statements  of  the  witnesses  recorded  by  the  SIT  and  submit  his  comments  thereon.  It  will  be  open  to  the  learned  Amicus  Curiae to interact with any of the witnesses, who  have  been  examined  by  the  SIT,  including  the  police officers, as he may deem fit.

If the learned Amicus Curiae forms an opinion that  on the basis of the material on record, any offence  is made out against any person, he shall mention  the same in his report.”

7. The learned Amicus Curiae has now submitted his final report dated  

25th July, 2011.  In light of the above conspectus and the report of the  

learned Amicus Curiae,  the question for determination is the future  

course of action in the matter.

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8. We are of the opinion that bearing in mind the scheme of Chapter XII  

of the Code, once the investigation has been conducted and completed  

by the SIT, in terms of the orders passed by this Court from time to  

time, there is no course available in law, save and except to forward  

the  final  report  under  Section  173  (2)  of  the  Code  to  the  Court  

empowered to take cognizance of the offence alleged.  As observed by  

a  three-Judge  Bench  of  this  Court  in  M.C.  Mehta  (Taj  Corridor  

Scam) Vs. Union of India & Ors.1, in cases monitored by this Court,  

it  is  concerned with ensuring proper and honest  performance of its  

duty  by  the  investigating  agency  and  not  with  the  merits  of  the  

accusations in investigation, which are to be determined at the trial on  

the filing of the charge-sheet in the competent Court, according to the  

ordinary procedure prescribed by law.   

9. Accordingly, we direct the Chairman, SIT to forward a final report,  

along with the entire material collected by the SIT, to the Court which  

had taken cognizance of  Crime Report  No.67 of  2002, as  required  

under Section 173(2) of the Code.  Before submission of its report, it  

will be open to the SIT to obtain from the Amicus Curiae copies of his  

reports  submitted  to  this  Court.  The  said  Court  will  deal  with  the  

matter  in  accordance  with  law relating  to  the  trial  of  the  accused,  

named in the report/charge-sheet, including matters falling within the  1 (2007) 1 SCC 110

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ambit  and  scope  of  Section  173(8)  of  the  Code.  However,  at  this  

juncture,  we deem it  necessary  to  emphasise  that  if  for  any stated  

reason the SIT opines in its report, to be submitted in terms of this  

order, that there is no sufficient evidence or reasonable grounds for  

proceeding against any person named in the complaint, dated 8th June  

2006,   before  taking  a  final  decision  on  such  ‘closure’  report,  the  

Court shall issue notice to the complainant and make available to her  

copies of the statements of the witnesses, other related  documents and  

the investigation report strictly in accordance with law as enunciated  

by this  Court in  Bhagwant Singh Vs.  Commissioner of  Police  &  

Anr.2.   For the sake of ready reference, we may note that in the said  

decision, it has been held that in a case where the Magistrate to whom  

a report is forwarded under Section 173(2)(i) of the Code, decides not  

to take cognizance of the offence and to drop the proceedings or takes  

a view that there is no sufficient ground for proceeding against some  

of the persons mentioned in the FIR, the Magistrate must give notice  

to the informant and provide him an opportunity to be heard  at the  

time of consideration of the report.

10.Having so directed, the next question is whether this Court should  

continue to monitor the case any further.  The legal position on the  

point is made clear by this Court in Union of India & Ors. Vs.  Sushil   2 (1985) 2 SCC 537

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Kumar  Modi  &  Ors.3, wherein,  relying  on  the  decision  in  Vineet   

Narain & Ors. Vs. Union of India & Anr.4, a Bench of three learned  

Judges had observed thus :

“…that  once  a  charge-sheet  is  filed  in  the  competent  court  after  completion  of  the  investigation,  the  process  of  monitoring  by  this  Court for the purpose of making the CBI and other  investigative  agencies  concerned  perform  their  function  of  investigating  into  the   offences  concerned  comes  to  an  end;  and  thereafter  it  is  only the court  in which the charge-sheet  is  filed  which is to deal with all matters relating to the trial  of the accused, including matters falling within the  scope of Section 173(8) of the Code of Criminal  Procedure.   We  make  this  observation  only  to  reiterate this clear position in law so that no doubts  in any quarter may survive.”

11.In  M.C. Mehta  Vs.  Union of India & Ors.5, a question arose as to  

whether  after  the  submission of  the  final  report  by the  CBI in  the  

Court of Special Judge, pursuant to this Court’s directions, this Court  

should examine the legality and validity of CBI’s action in seeking a  

sanction under Section 197 of the Code for the prosecution of some of  

the  persons  named in  the  final  report.   Dismissing  the  application  

moved by the learned Amicus Curiae seeking directions in this behalf,  

a three-Judge Bench, of which one of us (D.K. Jain, J.) was a member,  

observed thus:

3 (1998) 8 SCC 661 4 (1996) 2 SCC 199 5 (2008) 1 SCC 407

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 “The jurisdiction  of  the  Court  to issue a  writ  of  continuous  mandamus  is  only  to  see  that  proper  investigation  is  carried  out.  Once  the  Court  satisfies itself that a proper investigation has been  carried out, it would not venture to take over the  functions  of  the  Magistrate  or  pass  any  order  which would interfere with his judicial functions.  Constitutional  scheme  of  this  country  envisages  dispute  resolution mechanism by an independent  and  impartial  tribunal.  No  authority,  save  and  except  a  superior  court  in  the  hierarchy  of  judiciary, can issue any direction which otherwise  takes  away  the  discretionary  jurisdiction  of  any  court of law. Once a final report has been filed in  terms of sub-section (1) of Section 173 of the Code  of  Criminal  Procedure,  it  is  the  Magistrate  and  Magistrate  alone  who  can  take  appropriate  decision in the matter one way or the other. If he  errs while passing a judicial order, the same may  be  a  subject-matter  of  appeal  or  judicial  review.  There  may  be  a  possibility  of  the  prosecuting  agencies not approaching the higher forum against  an order passed by the learned Magistrate, but the  same by itself would not confer a jurisdiction on  this Court to step in.”  

12.Recently, similar views have been echoed by this Court in Narmada  

Bai  Vs.  State  of  Gujarat  & Ors.6.   In  that  case,  dealing  with  the  

question of further monitoring in a case upon submission of a report  

by the  C.B.I.  to  this  Court,  on the  conclusion  of  the  investigation,  

referring  to  the  earlier  decisions  in  Vineet  Narain  (supra),  Sushil   

Kumar Modi  (supra) and  M.C. Mehta (Taj Corridor Scam) (supra),  

6 (2011) 5 SCC 79

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speaking for the Bench, one of us, (P. Sathasivam, J.) has observed as  

under :

“70. The above decisions make it clear that though  this Court is competent to entrust the investigation  to any independent agency, once the investigating  agency  complete  their  function  of  investigating  into  the  offences,  it  is  the  court  in  which  the  charge-sheet  is  filed  which  is  to  deal  with  all  matters  relating  to  the  trial  of  the  accused  including  matters  falling  within  the  scope  of  Section 173(8) of the Code.  Thus, generally, this  Court  may not  require  further  monitoring  of  the  case/investigation.  However, we make it clear that  if  any  of  the  parties  including  CBI  require  any  further  direction,  they  are  free  to  approach  this  Court by way of an application.”

13. Deferentially  concurring  with  the  dictum  of  this  Court  in  the  

aforenoted decisions, we are of the opinion that in the instant case we  

have reached a stage where the process of monitoring of the case must  

come to an end. It would neither be desirable nor advisable to retain  

further seisin over this case.  We dispose of this appeal accordingly.   

14.Before parting,  we direct  the State  of Gujarat  to reimburse to Shri  

Raju Ramachandran,  all the expenses borne by him for travel from  

Delhi  to  Ahmedabad and back.  We also  place  on record  our  deep  

appreciation  for  the  able  assistance  rendered  to  us  by  Shri  Raju  

Ramachandran and Shri Gaurav Agarwal, the learned Amicus Curiae.

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.……………………………………               (D.K. JAIN, J.)  

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

          ………………………………………               (AFTAB ALAM, J.)

NEW DELHI; SEPTEMBER 12,  2011. ARS

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