JAKIA NASIM AHESAN & ANR.versusSTATE OF GUJARAT & ORS.

                      [2011] 11 S.C.R. 365


               JAKIA NASIM AHESAN & ANR.                           A
                                v.
                STATE OF GUJARAT & ORS.
             (Criminal Appeal No. 1765 of 2011)
                    SEPTEMBER 12, 2011
                                                                   B
   [D.K. JAIN, P. SATHASIVAM AND AFTAB ALAM, JJ.]

      CODE OF CRIMINAL PROCEDURE, 1973:

        Chapter XII, s. 173(8) read withs. 482 Cr.P.C. and Article c
  226 read with Article 136 of the Constitution - Monitoring of
  investigation by Court - Gu/berg Society case in State of
  Gujarat - Charge-sheet filed and case committed to Court of
  Session - Subsequently, petition by wife of the deceased MP
  before High Court seeking direction for registration of her 0
  complaint as an FIR against the persons named therein for
. offences punishable u/ss 302, 120-B /PC etc. and for
  entrusting investigation to an independent agency - Petition
  dismissed by High Court - Supreme Court directing the
  Special Investigation Team (SIT), which had been constituted E
  to carry out further investigation in 9 cases, to look into the
  complaint of the appellant - SIT conducted further
  {~vestigation and submitted. its report to the Court - Amicus
  ~uriae who was directed to examine the report of SIT a/so
  submitted his report - Held: In the instant case, a stage has
  been reached where the process of monitoring of the case F
  must come to an end - It would neither be desirable nor
  advisable to retain further seisin over the case - 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 pas~ed by the Court from time to time, G
  there is no course available in law, save and except to forward
  the final report u/s 173 (2) of the Code to the court empowered
  to take cognizance of the offence alleged - The Chairman,
  SIT is directed to forward a final report, a/orig with the entire
                                   365                              H
    366      SUPREME COURT REPORTS·              [2011) 11 S.C.R.


A material collected by the SIT, to the court which had taken
  cognizance of Crime Report No. 67 of 2002, as required uls
  173(2) - However, if for any stated reason the SIT opines in
  its report that there is no sufficient evidence or reasonable
  grounds for proceeding ag.ainst any person named in the
B complaint, dated 8-6-2006, before taking a final decision on
  such 'closure' report, the court shall issue notice to the
  complainant in accordance with law as enunciated in
  Bhagwant Singh's case.

C         M. C. Mehta (Taj Corridor Scam) Vs. Union of India & Ors.
  2006 (9) Suppl. SCR 683        =
                                2007 (1) SCC 110; Bhagwant
  Singh Vs. Commissioner of Police & Anr. 1985
                     =
  (3) SCR 942 1985 (2) SCC 537; Union of India & Ors. Vs.
  Sushi/ Kumar Modi & Ors 1998 (8) SCC 661; Vineet Narain
  & Ors. Vs. Union of India & Anr. 1996 (1) SCR 1053 = 1996
D (2) SCC 199; M.C. Mehta Vs. Union of India & Ors. 2007 (10)
   SCR 1060 = 2008 (1) SCC 407; and Narmada Bai Vs. State
  of Gujarat & Ors. 2011 (5) SCC 79 - relied on.
                          Case Law Reference:
E     2006 (9) Suppl. SCR 683 relied on                  para 8
      1985 ( 3 ) SCR 942           relied on             para 9
      1998 ( 8 ) sec 661           relied on             para 10_

F      1996 ( 1 ) SCR 1053         relied on             para 10
                .'
      2007 (10 ) SCR 1060          relied on             para 11
      2011 (5 > sec 79             relied on             para 12

G       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1765 of 2011.

         From the Judgment & Order dated 02.11.2007 of the High
    Court of Gujarat at Ahmedabad in Special Crl. Application No.
    421' of 2007.
H
      JAKIA NASIM AHESAN & ANR. v. STATE OF                      367
                 GUJARAT & ORS.
     Raju Ramachandran, Mukul Rohtagi, Ranjit Kumar, Gaurav             A
 Agrawal, P. Ramesh Kumar, Aparna Bhat, Hemantika Wahi,
 Jesal, Suveni Banerjee, E.C. Agrawala, A. Venayagam Balan,
 N. Ganpathy for the appering parties.

      The following order of the Court was delivered                    B
                               ORDER
      1. Leave granted.

       2. This appeal by special leave, arises out of the judgment      c
  dated 2nd November, 2007, delivered by the High Court of
  Gujarat at Ahmadabad 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
                                                                        0
  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         E
  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 tenabl~. The    F
  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   G
  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
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    368     SUPREME COURT REPORTS                 [2011) 11 S.C.R. ·


A 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 case wa;; committed to
B 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
c 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 1206 as also under Section 193 read with
  Sections 114, 186 & 153A, 186, 187 of the Indian Penal Code,
0
  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 jy an independent agency,
E 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
F Special Investigation Team (for short "the Sir), which had been
  constituted vide order dated 26th March, 2008 to carry out
  further investigations in nine cases, subject 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
G Director General of Police, Gujarat. Pursuant to the said
  direction Shri A.K. Malhotra, former 0.1.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
H
     JAKIA NASIM AHESAN & ANR. v. STATE OF                  36~
                GUJARAT & ORS.
Court by the Chairman, SIT, concurring with the findings of Shri   A
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
                                                                   8
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, ShrJ Raju.
Ramachandran, Senior Advocate and Shri Gaurav Agarwal,
Advocate, replaced the previous Amicus Curiae, who had. C
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 D
further investigation in light of the observations made in the said
note. The SIT conducted further investigation under 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, E
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   F
    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
    Ramac.handran, the learned Amicus Curiae.
                                                                   G
    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       H
    370      SUPREME COURT REPORTS                 [2011] 11 S.C.R.


A         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
B         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
c   determination is the future course of action in the matter.
         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
D   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
E   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.
F         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.
 · ·sefore submission of its report, it will be open to the SIT to
G obtain from the Amicus Curiae copies of his reports submitted
    to this Court. The said Court will deal with the matter in
    accordance with l~w relating t9 the trial of the accused, named
    in the report/charge-sheet, including matters falling within the
    ambit and scope of Section 173(8) of the Code. However, at
H 1. (2001i 1 sec 110.
     JAKIA NASIM AHESAN & ANR. v. STATE OF                   371
                GUJARAT & ORS.
this juncture, we deem it necessary to emphasise that if for any    A
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     B
to the complainant and make available to her copies of the
statements of the witnesses, other related documents and the
investigation report strictly in accordancewith 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      c
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
                                                                    0
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 furtl:ler. The legal E
position on the point is made clear by this Court in Union of
India & Ors. Vs. Sushi/ 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 F
      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 . G
      charge-sheet is filed which is    ro     deal with all matters
      relating to the trial of the accused, including matters falling
2.   (1985) 2 sec 537.
3.   (1Jl9B) a sec 661.
4. · (1996) 2 sec 199.                                              H
    372       SUPREME COURT REPORTS                 (2011] 11 S.C.R.


A         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
B   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 CBl's action in seeking a sanction under Section 197 of the
    Code for the prosecution of some of the persons named in the
C   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:
          "The jurisdiction of the Court to issue a writ of continuous
D
          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.
E         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
F         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
G         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."
H   5.    (2008) 1   sec 407.
       JAKIA NASIM AHESAN & ANR. v. STATE OF                     373
                  GUJARAT & ORS.
     12. Recently, similar views have been echoed by this               A
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), Sushi/ Kumar Modi (supra) and M.C.            B
Mehta (Taj Corridor Scam) (supra), 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                C
       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         D
       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         E
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.                            F

       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 Ahmadabad and back. We also
place on record our deep appreciation for the able assistance           G
rendered to us by Shri Raju Ramachandran and Shri Gaurav
Agarwal, the learned Amicus Curiae.

R.P.                                          Appeal disposed of.

e.   c2011) s sec 79.                                                   H