REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 115  OF 2007

Narmada Bai      .... Petitioner(s)

Versus

State of Gujarat & Ors.            .... Respondent(s)

J U D G M E N T  

P. Sathasivam, J.

1) Narmada Bai-the  petitioner  herein,  mother  of  Tulsiram  

Prajapati-the deceased, who, according to her, was killed on  

27/28.12.2006 in a fake encounter by respondent Nos. 6 to  

19,  who  are  the  officials  of  Gujarat  and  Rajasthan  Police,  

somewhere  on  the  road  going  from  Ambalimal  to  Sarhad  

Chhapri, has filed the above writ petition under Article 32 of  

the  Constitution  of  India  praying  for  issuance  of  a  writ  of   

mandamus or in the nature thereof or any other writ, order or  

direction  directing  the  Central  Bureau  of  Investigation  (in  

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short ‘the CBI’) to register a First Information Report (in short  

‘FIR’) and investigate into the fake encounter killing of her son  

and submit its report to this Court.  In the same petition, she  

also prayed for compensation for the killing of her son in a  

fake encounter thereby causing gross violation of Articles 21  

and 22 of the Constitution.       

2)  Case of the Writ Petitioner:-

a) According to the petitioner, she is 55 years old illiterate  

widow.  Her younger son had been done away by respondent  

Nos. 6-19 in a fake encounter with the ulterior intent to shield  

themselves in the investigation emanating under the directions  

of this Court in the case of Rubabbuddin Sheikh vs. State of  

Gujarat  &  Ors., (2010)  2  SCC  200.   She  came  to  know  

through local persons about the fake encounter and killing of  

Sohrabuddin and his wife Kausarbi and the directions of this  

Court  in  that  case.   On  being  informed  about  the  said  

incident, she approached this Court for directions to register  

an FIR into  the  fake  encounter  killing  of  her  son Tulsiram  

Prajapati and investigation by an independent agency, like the  

CBI and for submission of its report to this Court for further  

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action.  According to the petitioner, the fake encounter killing  

of her son is directly connected to the case of Sohrabuddin  

and  his  wife  Kausarbi  as  he  would  have  been  a  material  

witness to the said killings.

(b) It is further stated that her son Tulsiram Prajapati while  

lodged in Central Jail, Udaipur, had addressed a letter dated  

11.05.2006 to the Collector, Udaipur informing him about the  

life threatening attack carried out on him in Udaipur Central  

Jail on 25.03.2006, when he was beaten up with iron rods and  

lathis  by  co-prisoners.   He  expressly  wrote  that  there  was  

conspiracy to kill him along with two others and also named  

the persons who were behind the conspiracy and requested  

that  incident  be  investigated  and  his  life  be  protected.  

Thereafter,  on  18.05.2006,  the  deceased  also  addressed  a  

letter to the Chairman, National Human Rights Commission  

(in short ‘NHRC’) alleging that there was conspiracy among the  

police officials of Gujarat, Rajasthan, Maharashtra, etc. to do  

away with him in a fake encounter by cooking up a false story  

of running away from custody.  In the said letter, the deceased  

specifically requested that his security be ensured whenever  

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he is taken on remand.  In the same letter, he also mentioned  

that the Gujarat Crime Branch and Anti Terrorist Squad (in  

short ‘ATS’) were very notorious for staging fake encounters.  

The  NHRC acknowledged  the  receipt  of  the  said  letter  and  

forwarded  a  copy  to  the  Superintendent  of  Police,  Udaipur,  

Rajasthan vide letter dated 22.06.2006.

(c) Thus  from  March  2006,  the  deceased  had  been  

expressing serious apprehensions and threat to his life at the  

hands of the police.  The deceased had reasons to believe that  

Mr. Dinesh Kumar, Superintendent of Police, respondent No.8,  

had taken a huge sum of money from the Marble traders and  

dealers  in  Rajasthan  with  the  assurance  that  he  would  do  

away  with  him  in  a  fake  encounter.   Before  he  being  

interrogated by Ms.  Geeta Johri,  an officer  investigating the  

matter of fake encounter killing of Sohrabuddin and his wife  

Kausarbi,  in  the  night  intervening  27/28  December,  2006,  

Tulsiram  Prajapati  was  done  away  in  a  fake  encounter  by  

respondent Nos. 6-19.   

(d) Quoting  from  certain  newspaper  reports,  more  

particularly,  the  Times  of  India  dated  29.12.2006,  the  

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petitioner  has  alleged  that  her  son  was  being  escorted  by  

Udaipur (Rajasthan) Police from Ahmedabad to Udaipur in a  

train.   When  the  train  was  passing  through  Himatnagar-

Shymlaji Stretch, the deceased sought permission to go to the  

toilet.  The policemen escorted him to the toilet where two of  

his  accomplices  disguised  as  passengers  attacked  the  

policemen by throwing chilli powder in their eyes.  When the  

policemen called for the other members of the escort party, the  

goons  fired  at  them and  jumped  off  the  moving  train.   In  

response, the police opened fire but the accused fled in the  

cover of darkness after shooting back at the police.   

(e) Pursuant  to  such  alleged  fleeing  of  Tulsiram Prajapati  

from police custody, Mr.  Dinesh Kumar,  SP, Udaipur called  

Mr. Vipul Agarwal, SP Banaskantha and informed him of the  

same.  Thereafter, local police of Banaskantha headed by Mr.  

Vipul Agarwal under direct supervision of Mr. D.G. Vanzara,  

Range  DIG,  swung into  action and registered  an FIR being  

Crime  Register  No.  115  of  2006  at  Ambaji  Police  Station,  

Banaskantha,  on  28.12.2006  at  8.00  hrs.  claiming  that  

Tulsiram Prajapati had been killed in an encounter.

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(f) It is further alleged that when patrolling was carried out,  

three persons tried to stop one Matador van but the vehicle  

did not stop there.  It has also been alleged that a police jeep  

of Mr. A.A. Pandya, SI was coming behind the Matador and the  

said three persons tried to stop it.  On stopping the police jeep,  

Mr. Narayansinh Fatehsinh Chauhan, ASI recognized one of  

the  three  persons  in  the  light  of  jeep  as  the  absconding  

Tulsiram Prajapati.  On seeing that, the deceased took out a  

weapon kept in the nylon belt on his waist and fired which hit  

the left side of the mudguard of the police jeep and ran away  

in the darkness.  While running, they fired at the police party  

in which one bullet hit at the left shoulder of Shri A.A. Pandya,  

SI.  It is alleged that in self-defence Shri A.A. Pandya fired two  

rounds  from  his  service  revolver  and  Mr.  Narayansinh  

Fatehsinh  Chauhan  and  Mr.  Yuddharamsinh  Nathusinh  

Rajput,  Rajasthan  police  constables  also  fired  from  their  

weapons.  On account of the firing by the police party, bullets  

hit Tulsiram Prajapati and he fell down on road side and the  

other  two  persons  ran  away  and  could  not  be  traced.  

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Thereafter, he was taken to Ambaji Cottage Hospital where he  

was declared dead by the doctor on duty.

(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.  The aforesaid facts  

create a strong suspicion on the conduct of respondent Nos. 6  

to 19 and the petitioner has every reason to believe that her  

son-  Tulsiram Prajapati  has  been killed  by  them in  a  fake  

encounter.   She  also  alleged  that  the  respondents/accused  

officers enjoy powerful position in their respective State Police  

and  are  trying  to  obstruct  further  inquiry  into  the  fake  

encounter killing of her son, who was a material witness in the  

case of fake encounter of Sohrabuddin and his wife Kausarbi.  

Hence,  the  petitioner  has  preferred  this  petition  before  this  

Court  praying  for  direction  to  CBI  to  register  an  FIR  and  

investigate the case.

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3) Stand of the State of Gujarat – respondent No.1

(a) Shri I.M. Desai, Deputy Inspector General of Police, CID  

(Crime), Gujarat State filed an affidavit wherein it was stated  

that the present petition under Article 32 of the Constitution is  

not maintainable as the case registered in respect of death of  

the petitioner’s son in police firing on 28.12.2006 was under  

investigation.  The Writ Petition (Crl.)  No. 6 of 2007 being a  

Habeas  Corpus was  entertained  by  this  Court  as  an  

exceptional case and, therefore, the same cannot be cited as a  

precedent.   It  was  further  stated  in  the  said  affidavit  that  

Tulsiram Prajapati was a dreaded inter-state criminal and was  

also known as Tulsiram Prajapati  @ Prafull  @ Samir son of  

Ganga Ram Prajapati  involved in 21 criminal cases and he  

was killed on 28.12.2006 in police firing after escaping from  

police custody.  In respect of the same, an FIR was registered  

in Ahmedabad Railway Police Station of Gujarat vide CR No.  

294/06  under  Sections  307,  224,  225,  34  of  Indian  Penal  

Code (in short “IPC”) and Section 25(1)(AB) of the Arms Act,  

1959 and Section 135 of Bombay Police Act, 1951.      

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(b)  According  to  the  State,  after  escaping  from  the  Police  

Custody, Tulsiram Prajapati was again confronted by Gujarat  

Police and Rajasthan Police and was killed in police firing for  

which an FIR was registered in Ambaji Police Station vide CR  

No. 115 of 2006 dated 28.12.2006 under Sections 307, 427,  

34  of  IPC and  Section  25(1)(C)  of  the  Arms  Act,  1959 and  

Section 135 of the Bombay Police Act, 1951.  Since the cases  

in  respect  of  the  above  two  incidents  had  already  been  

registered in the Police Stations, there is no need to register a  

fresh case as claimed by the petitioner.  It was further stated  

that Tulsiram Prajapati was not a material witness in the case  

of Sohrabuddin.  He also denied that any such incident had  

taken place  within  the  premises  of  Udaipur  Central  Jail  as  

claimed  by  the  petitioner  on  25.03.2006  but  there  was  a  

quarrel among the prisoners on 24.03.2006 in the Court lock-

up for  which a  criminal  case  was registered at  Bhopalpura  

Police Station in C.R.No. 131 of 2006 under Sections 341, 323,  

506 and 34 IPC.  

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(c) As regards the complaint made to the NHRC, investigation  

carried out so far revealed that no such conspiracy amongst  

the police officers of Maharashtra, Gujarat, Madhya Pradesh  

and Rajasthan has come on record.  The deceased also never  

showed any apprehension to the petitioner about danger to his  

life  from marble  dealers  or  police  officers  of  Udaipur.   The  

petitioner’s claim about Tulsiram Prajapati’s apprehension to  

his  life  is  at  the  most  hearsay  and  based  on  extraneous  

considerations.  

(d) The claim that the deceased-Tulsiram Prajapati was highly  

inconvenient  witness  for  respondent  Nos.  6-19  is  without  

substance as respondent No. 10 – Mr. V.L. Solanki, an inquiry  

officer, has stated in respect of alleged killing of Sohrabuddin  

that  during  preliminary  enquiry  there  was  no  link  between  

Tulsiram Prajapati and the death of Sohrabuddin and his wife  

Kausarbi in an encounter.  The same view has been expressed  

by Ms. Geeta Johri, IGP under whose direct supervision the  

case  relating  to  Sohrabuddin  was  investigated.   The  ‘third  

person’  allegedly  present  at  the  time  of  abduction  of  

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Sohrabuddin and Kausarbi was Kalimuddin and not Tulsiram  

Prajapati.  

(e)  In  the  subsequent  affidavit  dated  19.08.2010,  

Dashrathbhai  R.  Patel,  Under  Secretary,  Government  of  

Gujarat,  Home  Department  has  stated  that  the  State  CID  

(Crime) has filed a charge-sheet which is the subject-matter of  

present writ petition.  It is the consistent stand of the State  

that  the  encounter  killing  of  Tulsiram  Prajapati  (subject-

matter of Writ Petition (Crl.) No. 115 of 2007) has nothing to  

do with the killing of Sohrabuddin and Kausarbi (which was  

the subject-matter decided by this Court in Writ Petition (Crl.)  

No. 6 of 2007).  

4) Stand of Mr. Amit Shah – respondent No.2:

(a) The present writ petition is an abuse of the process of law  

by/at the behest of political party controlling the CBI.   

(b) The investigation in a criminal case normally takes place  

in accordance with the procedure prescribed under the Code  

of  Criminal  Procedure  (in  short  ‘the  Cr.P.C.’)  and  by  the  

normal  investigating  agency  prescribed.   The  Constitutional  

Court  can  direct  deviation  from such  statutorily  prescribed  

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method of investigation and direct an outside agency like the  

CBI to step in and investigate an offence only in extraordinary  

circumstances and in rarest of rare cases.  The petitioner has  

not  led factual  foundation of  facts  to hold that  the  present  

case is one of the rarest of rare cases which requires deviation  

from the statutorily prescribed mode of investigation.  

(c) On perusal of both the investigations and charge-sheet  

which are filed in both the offences, it is seen that there is no  

credible evidence to support the view that Tulsiram Prajapati  

was  that  ‘third  person’  and  the  evidence  which  the  CBI  is  

relying on is clearly fabricated being based on the unreliable  

statements  of  witnesses.   On  the  other  hand  all  available  

evidence points to the fact that the ‘third person’ could only be  

Kalimuddin @ Naimuddin who is under the protection of the  

Andhra  Pradesh  Police.   The  CBI  is  seeking  to  take  over  

Tulsiram  Prajapati’s  encounter  case  only  to  fabricate  the  

evidence and to destroy the charge-sheet filed by the Gujrat  

Police in Tulsiram Prajapati’s case.  The status report filed by  

the CBI in Sohrabuddin’s case that Tulsiram Prajapati was the  

‘third person’ which is a blatant lie.  Though there is no link  

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between the two and yet the CBI is attempting to fabricate a  

link that does not exist.  Inasmuch as the CBI which has lost  

all its credibility as an independent agency and is being used  

by political party in power in the Central Government, in the  

absence  of  any  extraordinary  circumstances  having  been  

shown by the petitioner in the petition no direction need be  

issued  for  handing  over  the  investigation  to  the  CBI  and  

prayed for dismissal of the writ petition.   

(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.  

The investigation further revealed that the deceased knew that  

his  death  was  imminent  at  the  hands  of  Gujarat  Police  in  

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connivance  with  the  Rajasthan Police  as  he  was  the  prime  

witness to the said case.  

(b) The  investigation  also  revealed  that  Tulsiram Prajapati  

was brought to Ahmedabad on 28.11.2006 and 12.12.2006 in  

connection with the case No. 1124 of 2004 in JM Court No.  

13, Ahmedabad, along with co-accused Md. Azam and around  

50 police commandos were accompanied for the escort party,  

whereas on 25.11.2006, Tulsiram Prajapati was brought alone  

on police escort by Rajasthan Police from Udaipur Jail when  

less than five police men accompanied him.  After the orders of  

this Court for the investigation by this agency, it emerged that  

police  officials  of  ATS,  Ahmedabad  were  involved  in  the  

abduction and killing of Sohrabuddin and his wife Kausarbi.  

(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  

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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.   

Stand of the other respondents

6) As  far  as  the  officials  of  the  Gujarat  State  Police  are  

concerned, they reiterated the stand taken by the State.  Mr.  

Dinesh Kumar, S.P. Udaipur, Rajasthan-respondent No.8 has  

filed a  separate  counter  affidavit  denying  all  the  allegations  

made by the petitioner and taking the same stand as that of  

the State of Gujarat and ultimately prayed for dismissal of the  

writ petition.  

7) In the light of the above pleadings, we heard Mr. Huzefa  

A. Ahmadi, learned counsel for the writ petitioner, Mr. Ranjit  

Kumar,  learned  senior  counsel  for  the  State  of  Gujarat  

(respondent  No.1),  Mr.  Ram  Jethmalani,  learned  senior  

counsel  for  Amit  Shah (respondent No.2),   Mr.  K.T.S.  Tulsi,  

learned  senior  counsel  for  the  CBI,  Mr.  Deepak  Prakash,  

learned  counsel  for  respondent  No.8,  Mr.  Jaideep  Gupta,  

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learned senior counsel for respondent No.6, Gp. Capt. Karan  

Singh Bhati, learned counsel for respondent Nos. 12, 13 and  

14 and Mr. H.P. Rawal, learned ASG for the Union of India.  

8) The main grievance of the petitioner is that her deceased  

son – Tulsiram Prajapati  being a key witness to the murder of  

Sohrabuddin  and  his  wife  Kausarbi,  the  team  of  Mr.  D.G.  

Vanzara, DIG and other officers of the State Police planned to  

do away him to avoid the interrogation by Ms. Geeta Johri,  

IGP.  The petitioner had also strong suspicion on the conduct  

of respondent Nos. 6-19 and has every reason to believe that  

her son had been killed by them in a fake encounter.  It is also  

the  apprehension  of  the  petitioner  that  since  the  

respondents/accused police officers enjoy powerful position in  

their respective States and they are trying to obstruct further  

inquiry in the matter, prayed for entrusting the investigation  

to a specialized independent agency like the CBI.   

9) Mr. Ranjit Kumar, learned senior counsel for the State of  

Gujarat and Mr. Ram Jethmalani, learned senior counsel for  

Mr.  Amit  Shah,  respondent  No.2,  who,  at  the relevant time  

was the Home Minister of the State, vehemently objected the  

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claim  of  the  petitioner  and  by  placing  several  materials  

submitted  that  inasmuch  as  after  proper  investigation  the  

State Police has filed the charge-sheet, there is no need for  

further investigation by the CBI at this stage.  They further  

submitted that any such direction at this stage would delay  

the entire prosecution.   

Key Issues:

10) Keeping the above submissions in mind, we have to first  

find out (a) whether after filing of the charge-sheet by the State  

agency,  the  Court  is  precluded  from  appointing  any  other  

independent  specialized  agency  like  the  CBI  to  go  into  the  

same issues if the earlier investigation was not done as per the  

established procedure; and (b) subject to the answer relating  

to the issue raised in (a) whether the petitioner has made out a  

case for entrusting the investigation to the CBI.

Analysis as to issue (a):

11) The first issue i.e. (a) as in the case on hand also arose in  

the case of Rubabbuddin Sheikh (supra).  The factual details  

therein will be discussed in the later paragraphs.  With regard  

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to the similar objection as to further investigation by the CBI,  

this Court considered the following cases:

(i) Vineet Narain vs. Union of India, (1996) 2 SCC 199

(ii) Union of India vs. Sushil Kumar Modi,  (1998) 8 SCC  

661

(iii) Rajiv Ranjan Singh ‘Lalan’ (VIII) vs. Union of India,  

(2006) 6 SCC 613

(iv) Hari Singh vs. State of U.P., (2006) 5 SCC 733

(v) Aleque Padamsee vs. Union of India, (2007) 6 SCC 171

(vi) M.C. Mehta vs. Union of India, (2008) 1 SCC 407

(vii) R.S. Sodhi vs. State of U.P., 1994 Supp(1) SCC 143

(viii) Ramesh Kumari vs. State (NCT of Delhi), (2006) 2 SCC  

677

(ix) Kashmeri  Devi  vs. Delhi  Administration, 1988 Supp  

SCC 482

(x) Gudalure  M.J. Cherian vs.  Union of  India, (1992)  1  

SCC 397; and

(xi) Punjab & Haryana High Court Bar Asson. Vs. State  

of Punjab, (1994) 1 SCC 616  

and concluded in paragraphs 60 and 61 as under:

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“60. Therefore, in view of our discussions made hereinabove,  it is difficult to accept the contentions of Mr Rohatgi, learned  Senior Counsel appearing for the State of Gujarat that after  the charge-sheet is submitted in the court in the criminal  proceeding it  was not open for this Court  or  even for  the  High Court to direct investigation of the case to be handed  over to CBI or to any independent agency. Therefore, it can  safely be concluded that in an appropriate case when the  court feels that the investigation by the police authorities is  not  in  the  proper  direction  and  in  order  to  do  complete  justice  in  the  case  and  as  the  high  police  officials  are  involved in the said crime, it was always open to the court to  hand over the investigation to the independent agency like  CBI.  It  cannot  be  said  that  after  the  charge-sheet  is  submitted,  the court  is  not  empowered,  in an appropriate  case,  to  hand  over  the  investigation  to  an  independent  agency like CBI.

61. Keeping this discussion in mind, that is to say, in an  appropriate case, the court is empowered to hand over the  investigation to an independent agency like CBI even when  the charge-sheet has been submitted, we now deal with the  facts  of  this  case  whether  such  investigation  should  be  transferred to the CBI Authorities or any other independent  agency in spite of the fact that the charge-sheet has been  submitted  in  court.  On  this  ground,  we  have  carefully  examined the eight  action taken reports  submitted by the  State  police  authorities  before  us  and  also  the  various  materials  produced  and  the  submissions  of  the  learned  counsel for both the parties.”

     (Emphasis supplied)

It is clear that in an appropriate case, particularly, when the  

Court  feels  that  the  investigation  by  the  State  police  

authorities  is  not in the proper direction as the high police  

officials  are  involved,  in  order  to  do  complete  justice,  it  is  

always open to the Court to hand over the investigation to an  

independent and specialized agency like the CBI.   

19

12) In the light of the above principles, now let us consider  

the second issue (b) viz., whether the investigation relating to  

the  encounter  killing  of  Tulsiram  Prajapati  should  be  

transferred to the CBI in spite of the fact that the charge-sheet  

has been submitted in the Court by the State Police.

13) It is the specific stand of the writ petitioner that while  

considering the grievance of Rubabbuddin Sheikh about the  

death of  his  brother  Sohrabuddin  in  a  fake  encounter,  the  

present petitioner, mother of Tulsiram Prajapati also filed Writ  

Petition (Crl.) No. 115 of 2007 and, the same was tagged along  

with  Writ  Petition  (Crl.)  No.  6  of  2007  which  was  filed  by  

brother  of  Sohrabuddin.   The  cause  title  of  the  case  vide  

Rubabbuddin Sheikh vs. State of Gujarat & Ors. (2010) 2  

SCC 200 shows that Writ Petition (Crl.) No. 115 of 2007 was  

heard along with Writ Petition (Crl.) No. 6 of 2007.  Though at  

the end of the judgment, this Court directed that Writ Petition  

(Crl.)  No.  115 of  2007 be listed after eight weeks before an  

appropriate Bench.  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  

20

Sohrabuddin was Tulsiram Prajapati.   It  was also  observed  

that  call  records  of  Tulsiram  Prajapati  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.  In para 65, the  

following observations are relevant:

“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.”

     (Emphasis supplied)

Apart  from  the  above  conclusion,  after  analyzing  several  

Action  Taken  Reports  filed  by  the  State  and  various  

circumstances  and  in  view  of  the  involvement  of  the  high  

police  officials  of  the  State  in  the  crime therein,  this  Court  

directed  the  CBI  to  investigate  all  the  aspects  of  the  case  

relating to the killing of Sohrabuddin and his wife Kausarbi  

including the possibility of a “larger conspiracy’”  

21

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 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) As against  the assertion of  the writ  petitioner  and the  

stand of the CBI, Mr. Ranjit Kumar and Mr. Ram Jethmalani,  

learned senior counsel appearing for respondent Nos. 1 and 2  

respectively  cited  several  instances  and  relied  on  certain  

materials to show that inquiry by the CBI is not warranted.  

They are:  

i) Tulsiram Prajapati, as mentioned in the petition and in  

the prayer was the sharp shooter of Sohrabuddin.  He was co-

accused of Sohrabuddin in Hamid Lala’s case and was taken  

22

into  custody  only  on  29.11.2005.   Obviously,  he  had  been  

absconding till then.  In other words, he had been absconding  

for nearly a year before he was arrested.  After his arrest, he  

was lodged in Central Jail, Udaipur.  While in custody, he and  

two of his jail-mates addressed a letter dated 11.05.2006 to  

the Collector, Udaipur informing him about the attack carried  

out on them in the jail premises and they were badly injured.  

He  did  not  even  express  a  suspicion  about  any  one  who  

planned the attack on him.  He named seven persons who had  

actually participated in the attack.  In the said letter, he did  

not allege or even suspect that this dangerous assault in jail  

had  anything  to  do  with  the  Sohrabuddin-Kausarbi  fake  

encounter case or that he was being eliminated because he  

was a witness of the murder of either Sohrabuddin or his wife.  

ii) On  18.05.2006,  Tulsiram  Prajapati  addressed  another  

letter to the Chairman, NHRC, New Delhi.  In this letter again,  

he did not allege that he was an eye witness and that is why  

he was afraid of being eliminated.  He, however, did admit that  

he is an accused in serious cases in the State of Maharashtra,  

Gujarat,  Madhya Pradesh and Rajasthan.   What  he  alleged  

23

was that there was a conspiracy among the police officers of  

these States to knock him out.  Even the NHRC did not draw  

any  inference.   Ultimately,  Tulsiram Prajapati  was  killed  at  

about  8.00  a.m.  on 28.12.2006.   The scene of  offence  was  

within  the  jurisdiction  of  Ambaji  Police  Station  in  District  

Banaskantha  of  Gujarat.   An  FIR  of  this  incident  was  

registered on the same day within 15 minutes.

iii) Till  his  death,  no  evidence  had  emerged  that  he  had  

accompanied  Sohrabuddin  about  13  months  back  i.e.  on  

25.11.2005 to Gujarat where the encounter took place on the  

outskirts of Ahmedabad.  

iv) The order of this Court in Rubabbuddin Sheikh (supra)  

has  been  made  under  unfortunate  circumstances  without  

hearing anybody except the State of Gujarat.  It is the Union of  

India and Amicus who is a law officer of the Union of India  

that wanted the investigation into the Sohrabuddin’s case be  

transferred to the CBI which had been fully investigated by the  

State police and resulted in a charge-sheet as far back as on  

16.07.2007.  The main ground on which faults were found was  

that the investigation was the alleged failure  to identify  the  

24

Andhra Pradesh Police officers and others who participated in  

the abduction of the couple from Hyderabad to Gujarat leading  

eventually to their being killed.  

v) Apart  from  the  13  accused  who  had  originally  been  

charge-sheeted  by  the  Gujarat  Police  as  a  result  of  their  

investigation, the CBI, on 23.07.2010, added the then Home  

Minister of Gujarat as accused No.16 and involved him in the  

Sohrabuddin’s murder case.   

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.  There is no  

explanation as to why he was not killed along with Kausarbi or  

Sohrabuddin.   After  all,  both  were  arch  criminals  jointly  

25

involved in several murderous activities all over the country.  

When  he  was  spared  for  13  months  and  then  disposed  of  

during this time he had every opportunity to disclose that he  

was an eye witness of the Sohrabuddin’s murder case.  

16) By  placing  all  the  above  details  and  further  materials  

both the senior counsel submitted:

i) By filing the charge-sheet by the Gujarat Police the State  

has granted the prayer which Narmada Bai has made in her  

writ petition.   

ii) The  persons  whom  she  has  implicated  have  all  been  

charge-sheeted by the Gujarat Police.

iii) The conduct of the CBI does not inspire any confidence  

in this case.  It has become a party to a political conspiracy.   

iv) In the Status Report Nos. 1 and 2 filed by the CBI and  

submitted before the other Bench, they have already reported  

to  the  Court  that  the  Sohrabuddin  couple  on  their  fateful  

journey from Hyderabad to Gujarat  were accompanied by a  

‘third person’ and that ‘third person’ was Tulsiram Prajapati.  

This  is  a  dishonest  finding  based  upon  some  fabricated  

circumstances which are capable of being easily demolished.   

26

v) The  order  dated  12.01.2010  in  Rubabbuddin  Sheikh  

(supra)  is contrary to binding authorities and no credence or  

value can in law be assigned to the two Status reports.  The  

very anxiety on the other side that this should be handed over  

to  the  CBI  creates  a  serious  apprehension  about  the  

impartiality and independence of this agency.    

Analysis as to issue (b):

17) Inasmuch as the present writ petition is having a bearing  

on  the  decision  of  the  writ  petition  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  Rubabbudin  Sheikh’s  case.  Acting  on  a  letter  

written by Rubabbuddin Sheikh to the Chief Justice of India  

about the killing of his brother Sohrabuddin Sheikh in a fake  

encounter and disappearance of his sister-in-law Kausarbi at  

the  hands of  the  Anti-Terrorist  Squad (ATS),  Gujarat  Police  

and Rajasthan Special Task Force (RSTF), the Registry of this  

Court,  on  21.01.2007,  forwarded  the  letter  to  the  Director  

27

General of Police, Gujarat for necessary action.  It is further  

seen  that  after  six  months,  the  Director  General  of  Police,  

Gujarat directed Ms. Geeta Johri, Inspector General of Police  

(Crime), to inquire about the facts stated in the letter.  A case  

was registered as Enquiry No. 66 of 2006 and from 11.09.2006  

to 22.01.2007, four interim reports were submitted by Mr. V.L.  

Solanki, Police Inspector, working under Ms. Geeta Johri.  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.   He  also  prayed  for  

production of Kausarbi, his sister-in-law.  After going through  

various  reports,  arguments  of  the  counsel  for  the  writ  

petitioner and the State of Gujarat as well as Solicitor General  

for India, who appeared as Amicus Curiae, this Court disposed  

28

of the writ petition by entrusting the investigation to the CBI.  

Even before the said Bench, such move was strongly resisted  

by the State through their senior counsel Mr. Mukul Rohtagi.   

18) Mr.  Ram Jethmalani,  learned senior counsel  appearing  

for  the  respondent  No.  2  in  the  present  writ  petition  

vehemently  submitted  that  the  entire  discussion  and  the  

ultimate  conclusion  in  Rubabbuddin  Sheikh’s  case  is  

unacceptable and no reliance needs to be placed on it.  He also  

submitted that respondent No. 2 and other police officials were  

not  heard  by  the  said  Bench  before  ordering  fresh  

investigation  by  the  CBI.   It  is  true  that  in  the  said  writ  

petition, on behalf of the respondents, the Bench heard only  

the counsel for the State of Gujarat, however, it is not the case  

of any one that the State was not given adequate opportunity  

before the said Bench.  As said earlier, in fact, the State was  

represented by Mr. Mukul Rohtagi, reputed senior counsel and  

he put forth all relevant materials highlighting the stand of the  

State.   Inasmuch  as  all  the  police  officials  of  the  State  of  

Gujarat  including the  respondent  No.  2  in  the  present  writ  

petition were part of the State in Rubabuddin Sheikh’s case,  

29

we are of the view that it cannot be said that the same is not  

applicable to the case on hand.  The following conclusion in  

Rubabbuddin Sheikh’s case are relevant:

“53. It is an admitted position in the present case that the  accusations are directed against the local police personnel in  which the high police officials of the State of Gujarat have  been made the accused. Therefore, it would be proper for the  writ petitioner or even the public to come forward to say that  if the investigation carried out by the police personnel of the  State of Gujarat is done, the writ petitioner and their family  members would be highly prejudiced and the investigation  would also not come to an end with proper finding and if  investigation is allowed to be carried out by the local police  authorities, we feel that all concerned including the relatives  of the deceased may feel that investigation was not proper  and in that circumstances it would be fit and proper that the  writ petitioner and the relatives of the deceased should be  assured that  an independent  agency  should look into  the  matter  and  that  would  lend  the  final  outcome  of  the  investigation  credibility  however  faithfully  the  local  police  may carry out the investigation, particularly when the gross  allegations have been made against the high police officials  of  the  State  of  Gujarat  and  for  which  some  high  police  officials have already been taken into custody.

54. It  is  also well  known that when police officials of  the  State  were  involved  in  the  crime  and  in  fact  they  are  investigating  the  case,  it  would  be  proper  and  interest  of  justice would be better served if the investigation is directed  to be carried out by the CBI Authorities, in that case CBI  Authorities would be an appropriate authority to investigate  the case.

60. Therefore, in view of our discussions made hereinabove,  it is difficult to accept the contentions of Mr Rohatgi, learned  Senior Counsel appearing for the State of Gujarat that after  the charge-sheet is submitted in the court in the criminal  proceeding it  was not open for this Court  or  even for  the  High Court to direct investigation of the case to be handed  over to CBI or to any independent agency. Therefore, it can  

30

safely be concluded that in an appropriate case when the  court feels that the investigation by the police authorities is  not  in  the  proper  direction  and  in  order  to  do  complete  justice  in  the  case  and  as  the  high  police  officials  are  involved in the said crime, it was always open to the court to  hand over the investigation to the independent agency like  CBI.  It  cannot  be  said  that  after  the  charge-sheet  is  submitted,  the court  is  not  empowered,  in an appropriate  case,  to  hand  over  the  investigation  to  an  independent  agency like CBI.

61. Keeping this discussion in mind, that is to say, in an  appropriate case, the court is empowered to hand over the  investigation to an independent agency like CBI even when  the charge-sheet has been submitted, we now deal with the  facts  of  this  case  whether  such  investigation  should  be  transferred to the CBI Authorities or any other independent  agency in spite of the fact that the charge-sheet has been  submitted in court…………………………………  

62. From a careful examination of the materials on record  including  the  eight  action taken reports  submitted  by the  State  police  authorities  and  considering  the  respective  submissions of the learned Senior Counsel for the parties,  we  are  of  the  view  that  there  are  large  and  various  discrepancies  in  such  reports  and  the  investigation  conducted by the Police Authorities of the State of Gujarat  and  also  the  charge-sheet  filed  by  the  State  investigating  agency cannot be said to have run in a proper direction. It  appears from the charge-sheet itself that it does not reveal  the identity of police personnel of Andhra Pradesh even when  it states that Sohrabuddin and two others were picked up by  Gujarat Police personnel, accompanied by seven personnel of  Hyderabad Police. It also appears from the charge-sheet that  Kausarbi was taken into one of the two Tata Sumo Jeeps in  which these police personnel accompanied the accused. They  were not even among the people who were listed as accused.  Mr  Gopal  Subramanium,  Additional  Solicitor  General  for  India (as he then was) was justified in making the comment  that  an  honest  investigating  agency  cannot  plead  their  inability to identify seven personnel of the police force of the  State.

31

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.

68. From the above factual discrepancies appearing in the  eight  action taken reports  and from the charge-sheet,  we,  therefore,  feel  that  the  Police  Authorities  of  the  State  of  Gujarat  had  failed  to  carry  out  a  fair  and  impartial  investigation as we initially wanted them to do. It cannot be  questioned that  the  offences  the  high police  officials  have  committed were of grave nature which needs to be strictly  dealt with.”

After arriving at such conclusion, the Bench directed the CBI  

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”.         

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  

32

the  CBI  to  unearth  “larger  conspiracy”  regarding  the  

Sohrabuddin’s murder.  In such circumstances, we are of the  

view that those observations 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 this Court.   

20) Countering the stand of the petitioner, CBI and Union of  

India,  the  State  and  other  respondents  projected  the  case  

relating to Navrangpura which took place on 08.12.2004.  The  

scene  of  offence  was  the  office  premises  of  a  firm  called  

Popular Builders owned by two Patel brothers – Raman Patel  

and Dashrath Patel.  Some unknown persons entered into the  

premises  and they  did  not  kill  anyone but  they  fired  shots  

which  damaged  the  computer  installed  in  the  office.   An  

employee  of  the  firm,  who was  sitting  on the  ground floor,  

where  the  incident  took  place,  lodged  an  FIR  with  the  

Navrangpura  Police  Station  on  08.12.2004  in  the  city  of  

Ahmedabad.  The FIR did not name any one of the assailant,  

however, it was then discovered that the FIR was substantially  

a false one and the suspects were known and yet had not been  

named.  As a result of fresh discovery made during the course  

33

of  investigation,  it  was  Patel  Brothers  who  were  ultimately  

charge-sheeted  for  filing  a  false  case.   The  second  case  is  

Hamid Lala murder case in which one Hamid Lala, a protector  

of marble dealers of Rajasthan against criminal extortion by  

Sohrabuddin  gang  was  shot  dead  at  a  place  within  the  

jurisdiction of Ambaji Police Station, Udaipur in the State of  

Rajasthan.  This incident took place on 31.12.2004.  It is a  

fact that Sohrabuddin after committing Hamid Lala’s murder  

absconded  and  was  not  available  to  the  Rajasthan  Police.  

Later, it came to the knowledge of the investigating authorities  

that he had been hiding in a village of Madhya Pradesh.  In the  

Hamid  Lala  murder  case,  Sohrabuddin’s  co-accused  were  

Tulsiram  Prajapati,  Sylvester  and  one  Azamkhan.   It  was  

further pointed out that one Kalimuddin @ Naimuddin another  

notorious criminal wanted in many serious cases was residing  

in the State of Andhra Pradesh along with his sister Saleema  

Begum.  They were acting as informers of the Andhra Pradesh  

Police and they were under their protection.  Saleema Begum  

was  residing  in  Government  Railway  Quarters.   It  was  

Kalimuddin, who seems to have approached by somebody who  

34

invited Sohrabuddin and his wife Kausarbi from their hide out  

in  Madhya  Pradesh  to  Hyderabad.   This  happened  in  the  

middle of November, 2005.  It was further highlighted that on  

or about 22.11.2005, Sohrabuddin and his wife Kausarbi left  

by a luxury bus for Sangli in Maharashtra.  Two tickets for the  

bus journey were purchased by one Sri Hari.   The bus was  

pursued  by  police  vehicle,  two of  them were  in  Tata  Sumo  

vehicles belonging to the Andhra Pradesh Police.  They were  

driven  by  two  drivers  in  the  employment  of  police  being  

ordinary policemen.  The Andhra Pradesh police officers who  

sat  in  these  two  vehicles  have  not  been  identified  despite  

investigation both by the Gujarat Police as well as later by the  

CBI.  Sohrabuddin was done to death in an encounter with the  

police in the early  morning of  26.11.2005.   In the eventual  

charge-sheet filed by the Gujarat Police on 16.07.2007 against  

13 persons it was reported that the encounter was a fake one.  

It  is  the  definite  case  of  the  respondent  No.  2  that  the  

preliminary enquiry was first registered on 27.06.2006.  In the  

charge-sheet filed on 16.07.2007, the Gujarat Police found no  

evidence of any kind to implicate the respondent No. 2-Amit  

35

Shah.  

21) Mr.  Ranjit  Kumar  and  Mr.  Ram  Jethmalani,  learned  

senior  counsel  pointed  out  that  the  Gujarat  Police  while  

investigating  Sohrabuddin’s  murder  case  had  conducted  a  

good part of investigation in the State of Andhra Pradesh.  The  

Andhra Pradesh Police, however, was determined to yield no  

clue  whatsoever  about  the  role  of  the  State  police  in  the  

murder.   Ms.  Geeta  Johri,  the  head  of  the  Gujarat  

Investigating  Chief  had  interrogated  the  potential  witnesses  

but  she  drew  a  blank.   She  was  not  provided  with  more  

materials  such  as  Vehicle  Entry  Register  for  further  

investigation.   The Gujarat  police  headed by Ms.  Johri  had  

come to the conclusion that it was possible that the couple  

was accompanied by a ‘third person’ and in all probability that  

person  was  Kalimuddin,  who  had  succeeded  in  getting  the  

couple  from Madhya Pradesh to  Hyderabad and he  handed  

over  the  couple  to  the  murdering  team  which  certainly  

included the Andhra Pradesh officers.   

22)   According  to  the  learned  senior  counsel,  from  all  the  

details  particularly,  the  charge-sheet  filed  by  the  Gujarat  

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Police which included even senior police officers as accused,  

there is no need for further investigation by the CBI.  Even  

otherwise, according to them, the conduct of the CBI does not  

inspire any confidence in this case.  It has become party to a  

political conspiracy and acting as subordinate police force of  

the  Central  Government  in  sensitive  cases  having  political  

implications.

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  

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Tulsiram Prajapati was that he was a witness to abduction of  

Sohrabuddin  and  Kausarbi.   Both  oral  and  documentary  

evidence raise strong suspicion that the encounter was fake  

and stage managed as predicted by Tulsiram Prajapati prior to  

his death in a number of communications.  We have already  

adverted to his complaint to the District Collector, Udaipur,  

Rajasthan and representation to  the  NHRC,  New Delhi.   In  

both the representations Tulsiram Prajapati highlighted about  

the  danger  to  his  life.   In  fact,  the  NHRC  forwarded  his  

representation to the Director General of  Police,  Gujarat for  

necessary action.   

24) It is relevant to point out the letter of Shri V.L. Solanki  

dated 18.12.2006 seeking permission to interrogate Tulsiram  

Prajapati and Sylvester lodged in Udaipur Jail.  With regard to  

the  letter,  Ms.  Geeta Johri,  Head of  SIT,  is  alleged to  have  

recorded that even she may be given permission to accompany  

the I.O. for interrogation.  It was pointed out by the CBI that  

the letter of Shri V.L. Solanki containing the signature of Ms.  

Geeta Johri was not found in the official file.  In its place, it  

was pointed out that a fabricated note dated 05.01.2007 along  

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with a noting of Shri G.C.Raigar dated 06.01/08.01.2007 was  

found in the file in which it was recorded as under:

“To  go  to  Udaipur  to  interrogate  accused  Sylvester  and  

Tulsiram Prajapati (both being allegedly primary witnesses in  

the case) of whom Tulsi was recently encountered at BK by  

border range.”

If we compare the note and the above record of statement, it  

shows that each one is self contradictory, more particularly,  

the note seeks to interrogate the dead man.  It also cannot be  

ruled out that the stand taken by the CBI that as soon as the  

State police learnt about the direction of investigation by Ms.  

Geeta Johri, immediate pre-emptive steps have been taken to  

eliminate Tulsiram Prajapati.  The CBI has pointed out that  

the  critical  document  is  the  note  dated  22.05.2007  in  the  

handwriting of Ms. Geeta Johri which records as under:

“There  is  a  systematic  effort  on  the  part  of  the  State  

Government supporting the police to tamper with witnesses  

and evidences…..”  

It  was  pointed  out  that  the  words  “State  Government  

supporting” are sought to be struck off and are substituted by  

“certain  agencies  including”  in  place  of  “State  Government  

39

supporting”.   This  was  pointed  out  as  a  direct  evidence  of  

systematic  effort  of  the  State  Government  attempting  to  

tamper with the witnesses and evidences.  The CBI has also  

pointed out that Ms.Geeta Johri in her note dated 22.05.2007  

recorded that

“…the  Government  may  please  therefore  be  moved  to  

handover the case to the CBI for the purpose of meting out  

justice  to  the  petitioners  and  maintaining  the  image  of  

Gujarat Police…”

It is relevant to point out that the FIR recorded by the Gujarat  

Police  in Sohrabuddin’s  case  claimed it  to  be an encounter  

death and it was only on the intervention and issuance of rule  

nisi by this Court and filing of eight Action Taken Reports, the  

SIT  informed  this  Court  that  it  was  a  fake  encounter  and  

identified the police officials.  

25) Apart  from the  above  vital  information,  it  is  useful  to  

refer that even after the transfer of Sohrabuddin’s case to the  

CBI on 12.01.2010, the Gujarat Police did not move till May,  

2010.  The first arrest in the Tulsiram Prajapti was made in  

May,  2010.   Further,  when  the  CBI  laid  charge-sheet  on  

23.07.2010  in  Sohrabuddin’s  case,  the  State  promptly  

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concluded its investigation and filed charge-sheet in Tulsiram  

Prajapati’s case on 30.07.2010.  It was also pointed out that  

this  was  done  only  because  after  repeated  requests  the  

Gujarat  Police  handed  over  the  copies  of  notes,  diaries  in  

Tulsiram Prajapati’s  case  to  the  CBI  in  the  month  of  May,  

2010.  

26) Another  important  aspect  is  that  on earlier  occasions,  

Tulsiram  Prajapti  was  produced  before  the  Court  in  

Ahmedabad through video conferencing and he was removed  

from jail  on 27.12.2006 and produced before a Court, when  

ultimately, on 28.12.2006 i.e. the next day, he was killed.  

27) According to the CBI, the investigation has revealed that  

Tulsiram  Prajapati  was  the  ‘third  person’  accompanying  

Sohrabuddin  and  Kausarbi  on  the  fateful  night  of  their  

abduction and subsequent murders in the year 2005.   The  

investigation  further  revealed  that  after  the  abduction  of  

Sohrabuddin and Kausarbi, police personnel of Rajasthan had  

taken away  Tulsiram Prajapati  from Valsad  on 23.11.2005.  

However, it was pointed out by the CBI that he was shown to  

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have  been  arrested  on  29.11.2005  at  Bhilwara  by  the  

Rajasthan Police.                   

28) Nayamuddin Shaikh, in his statement dated 19.02.2010,  

before the CBI has mentioned that they had gone to see off his  

brother Sohrabuddin, Kausarbi and Tulsiram Prajapati  from  

Indore bus stand for Hyderabad and that Sohrabuddin had  

told  him  that  they  would  be  staying  with  Kalimuddin  in  

Hyderabad.  The above statement of Nayamuddin Shaikh is  

corroborated by the statement of  Rubabuddin Shaikh dated  

18.02.2010 wherein he had stated that Nayamuddin told him  

that  from Indore,  Tulsiram Prajapati,  friend of  Sohrabuddin  

had also joined them for  going to Hyderabad.   Rubabuddin  

had further stated that when Tulsiram Prajapati was brought  

from Udaipur to Ujjain for court hearing, Tulsiram Prajapati  

had told him that he along with Sohrabuddin and Kausarbi  

had gone to Hyderabad and had stayed with Kalimuddin in  

Hyderabad.  

29) The statement of Azam Khan dated 26.03.2010 indicates  

the  manner  in  which  the  abduction  of  Sohrabuddin  and  

Kausarbi  was  planned  and  executed.   Azam  Khan,  in  his  

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statement  had  stated  that  he  and  Tulsiram  Prajapati  were  

lodged in Udaipur prison at which time Tulsiram Prajapati told  

him  that  on  information  given  by  Tulsiram  Prajapati,  

Sohrabuddin,  Kausarbi  and  Tulsiram  were  abducted  from  

Hyderabad.  Among the entire statement of Azam Khan, the  

relevant  part  is  that  Tulsiram  Prajapati  helped  in  tracking  

down Sohrabuddin.  

30) Learned senior counsel for the CBI, Mr. K.T.S. Tulsi has  

pointed out that since the CBI had primarily conducted the  

investigation in the case of encounter of Sohrabuddin and the  

murder of Kausarbi, it has so far not launched a full fledged  

investigation  into  the  circumstances  in  which  Tulsiram  

Prajapati  was  killed.   According  to  him,  certain  facts  have  

come  to  the  notice  of  the  CBI  only  as  part  of  “larger  

conspiracy” with regard to which investigation was ordered by  

this  Court  and  it  was  pointed  out  that  full-fledged  

investigation by the CBI alone reveal further facts and lead to  

more direct evidence.  Mr. K.T.S. Tulsi is right in claiming that  

the investigation in every criminal case is conducted on the  

basis  of  suspicion  and  reason  to  believe  and  to  apply  the  

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standard of proof beyond doubt at a stage when a full fledged  

investigation is yet to be launched.  

31) It  is  not  in  dispute  that  it  is  the  age-old  maxim that  

justice must not only be done but must be seen to be done.  

The fact that in the case of murder of an associate of Tulsiram  

Prajapati,  Senior police officials and a senior politician were  

accused  which  may  shake  the  confidence  of  public  in  

investigation conducted by the State Police.  If the majesty of  

rule of law is to be upheld and if it is to be ensured that the  

guilty are punished in accordance with law notwithstanding  

their status and authority which they might have enjoyed, it is  

desirable to entrust the investigation to the CBI.   

32)  As stated earlier, it is the specific claim of the State of  

Gujarat  that  they  have  conducted  a  fair  and  impartial  

investigation into the killing of  Tulsiram Prajapati,  however,  

analysis  of  the  materials  which  we  have  already  discussed  

show several  lacuna on the part  of  the investigation by the  

State Government.  It is relevant to point out that much before  

the  incident  dated  28.12.2006  which  happened  in  village  

Chappri  in  Banaskantha District  of  the  State  of  Gujarat  in  

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which Tulsiram Prajapati was allegedly shot in an encounter  

while he had opened fire on the police party, who was on the  

look  out  for  him to  apprehend  him,  after  he  had  allegedly  

escaped  from  a  running  train  while  being  taken  back  to  

Rajasthan from Gujarat where he was stated to be produced in  

a court proceeding, Tulsiram Prajapati lodged two complaints  

in  written,  one  to  the  Collector,  Udaipur  and  another  

addressed to the Chairman, NHRC, New Delhi expressing the  

apprehension  that  he  is  likely  and  going  to  be  killed  by  

Gujarat  and  Rajasthan  police.   In  fact,  on  28.12.2006,  

Tulsiram Prajapati has been killed in the fake encounter which  

has now being admitted to be a fake counter after a gap of 3 ½  

years.   

33)  In Md. Anis vs. Union of India and Ors. 1994 Supp (1)  

SCC 145, it has been observed by this Court that:

“5……Fair  and  impartial  investigation  by  an  independent  agency,  not  involved  in  the  controversy  is  the  demand of  public interest.  If the investigation is by an agency, which is  allegedly  privy  to  the  dispute,  the  credibility  of  the  investigation will be doubted and that will be contrary to the  public interest as well as the interest of justice…….”

“2…..Doubts  were  expressed  regarding  fairness  of  investigation  as  it  was  feard  that  as  the  local  police  was  

45

alleged to be involved in the encounter, the investigation by  an officer of the UP Cadre may not be impartial….”

34) In another decision of this Court in R.S. Sodhi vs. State  

of  U.P.  &  Ors.  1994  Supp  (1)  SCC  143,  the  following  

conclusion is relevant:

“2……We  have  perused  the  events  that  have  taken  place  since the incidents but we are refraining from entering upon  the details  thereof  lest  it  may prejudice  any party  but we  think  that  since  the  accusations  are  directed  against  the  local police personnel  it  would be desirable to entrust the  investigation  to  an  independent  agency  like  the  Central  Bureau of Investigation so that all concerned including the  relatives  of  the  deceased  may  feel  assured  that  an  independent  agency  is  looking  into  the  matter  and  that  would lend the final outcome of the investigation credibility.  However  faithfully  the  local  police  may  carry  out  the  investigation,  the  same  will  lack  credibility  since  the  allegations are against them. It is only with that in mind that  we having thought it both advisable and desirable as well as  in the interest of justice to entrust the investigation to the  Central  Bureau of  Investigation forthwith and we do hope  that it would complete the investigation at an early date so  that those involved in the occurrences, one way or the other,  may be brought to book. We direct accordingly……”  

35)  In  both  these  decisions,  this  Court  refrained  from  

expressing any opinion on the allegations made by either side  

but thought it  wise  to have the incident investigated by an  

independent  agency  like  the  CBI  so  that  it  may  bear  

credibility.  This Court felt that no matter how faithfully and  

honestly the local police may carry out the investigation, the  

46

same will lack credibility as allegations were directed against  

them.   This  Court,  therefore,  thought  it  both desirable  and  

advisable  and  in  the  interest  of  justice  to  entrust  the  

investigation  to  the  CBI  so  that  it  may  complete  the  

investigation at an early date.  It was clearly stated that in so  

ordering no reflection either on the local police of the State  

Government was intended.  This Court merely acted in public  

interest.  

36)  The above decisions and the principles stated therein have  

been referred to and followed by this Court in  Rubbabuddin  

Sheikh (supra) wherealso it was held that considering the fact  

that  the  allegations  have  been  leveled  against  higher  level  

police  officers,  despite  the  investigation  made  by  the  police  

authorities of the State of Gujarat, ordered investigation by the  

CBI.  Without entering into the allegations leveled by either of  

the parties, we are of the view that it would be prudent and  

advisable  to  transfer  the  investigation  to  an  independent  

agency.  It is trite law that accused persons do not have a say  

in the matter of appointment of an investigation agency.  The  

accused  persons  cannot  choose  as  to  which  investigation  

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agency  must  investigate  the  alleged  offence  committed  by  

them.

37)  In  view  of  our  discussions  and  submission  of  learned  

counsel  on  either  side  and  keeping  in  mind  the  earlier  

directions  given  by  this  Court,  although,  charge-sheet  has  

been filed by the State of Gujarat after a gap of 3 ½ years after  

the  incident,  that  too  after  pronouncement  of  judgment  in  

Rubbabudin’s case and considering the nature of crime that  

has been allegedly committed not by any third party but by  

the police personnel of the State of Gujarat, we are satisfied  

that the investigation conducted and concluded in the present  

case by the State police cannot be accepted.  In view of various  

circumstances highlighted and in the light of the involvement  

of 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.  

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Submission  of  Report  by  the  CBI  to  this  Court  and  subsequent monitoring.

38) The other question relates to submission of a report by  

the  CBI  to  this  Court  and  further  monitoring  in  the  case.  

Though  in  Rubabbudin  Sheikh’s  case  (supra),  this Court  

directed the CBI that after investigation submits a report to  

this  Court  and  thereafter,  further  necessary  orders  will  be  

passed  in  accordance  with  the  said  report,  in  view  of  the  

principles laid down in series of decisions by this Court, we  

are not persuaded to accept the course relating to submission  

of report to this court and monitoring thereafter.   

a)  In Vineet Narain (supra), this Court held as under:

“In case of persons against whom a prima facie case is made  out and a charge-sheet is filed in the competent court, it is  that court which will then deal with that case on merits, in  accordance with law.”

b)  In  Sushil Kumar Modi (supra), this Court observed that  

the  monitoring  process in  the  High Court  in respect  of  the  

particular matter had come to an end with the filing of the  

charge-sheet in the Special Court and the matter relating to  

execution of the warrant issued by the Special Court against  

Shri  Laloo  Prasad  Yadav  was  a  matter  only  within  the  

49

competence of the Special Court so that there was no occasion  

for  the  High  Court  to  be  involved  in  any  manner  with  the  

execution of the warrant.   By relying on decision in  Vineet  

Narain’s  case  (supra),  this  Court  reiterated  that  once  a  

charge-sheet is filed in the competent court after completion of  

the investigation, the process of monitoring by this Court for  

the  purpose  of  making  the  CBI  and  other  investigating  

agencies concerned perform their function of investigating into  

the offences concerned comes to an end; and thereafter it is  

only the court in which the charge-sheet is filed which is to  

deal  with  all  matters  relating  to  the  trial  of  the  accused,  

including matters falling within the scope of Section 173(8) of  

the Code.         

c)  In  M.C. Mehta (Taj Corridor Scam) vs.  Union of India  

and Others, (2007) 1 SCC 110, this Court again reiterated the  

same principle.  The following conclusion is relevant:  

“30.  At  the outset,  we may state  that this  Court  has  repeatedly emphasized in the above judgments that in  Supreme Court monitored cases this Court is concerned  with  ensuring  proper  and  honest  performance  of  its  duty by CBI and that this Court is not concerned with  the merits of the accusations in investigation, which are  to be determined at the trial on the filing of the charge-

50

sheet in the competent court, according to the ordinary  procedure prescribed by law… …..”  

After saying so, this Court concluded:

“34. We,  accordingly,  direct  CBI  to  place  the  evidence/material  collected  by  the  investigating  team  along  with  the  report  of  the  SP  as  required  under  Section  173(2)  CrPC  before  the  court/Special  Judge  concerned  who  will  decide  the  matter  in  accordance  with law.”  

The above decisions make it clear that though this Court is  

competent  to  entrust  the  investigation  to  any  independent  

agency, once the investigating agency complete their function  

of investigating into the offences, it is the Court in which the  

charge-sheet is filed which is to deal with all matters relating  

to the trial of the accused including matters falling within the  

scope  of  Section  173(8)  of  the  Code.  Thus,  generally,  this  

Court  may  not  require  further  monitoring  of  the  

case/investigation.  However, we make it clear that if any of  

the  parties  including  the  CBI  require  any further  direction,  

they are free to approach this Court by way of an application.

Conclusion:

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39) In view of the above discussion, the Police Authorities of  

the Gujarat State are directed to handover all the records of  

the present case to the CBI within two weeks from this date  

and the CBI shall investigate all aspects of the case relating to  

the  killing  of  Tulsiram  Prajapati  and  file  a  report  to  the  

concerned  court/special  court  having  jurisdiction  within  a  

period  of  six  months  from  the  date  of  taking  over  of  the  

investigation from the State Police Authorities.  We also direct  

the Police Authorities of the State of Gujarat, Rajasthan and  

Andhra  Pradesh  to  cooperate  with  the  CBI  Authorities  in  

conducting the investigation.        

40)  It is made clear that any observation made in this order is  

only  for  the  limited  purpose  of  deciding  the  issue  whether  

investigation is to be handed over to the CBI or not and shall  

not be construed as expression of opinion on the merits of the  

case.  Though the petitioner has prayed for compensation for  

the  killing  of  her  son,  inasmuch  as  we  direct  the  CBI  to  

investigate  and  submit  a  report  before  the  court  

concerned/special court within six months, depending on the  

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outcome of the investigation, petitioner is permitted to move  

the said court for necessary direction for compensation and it  

is for the said court to pass appropriate orders in accordance  

with law.  The writ petition is allowed on the above terms.         

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

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

NEW DELHI; APRIL 08, 2011.     

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