Supreme Court of India
AMITBHAI ANILCHANDRA SHAHversusTHE CENTRAL BUREAU OF INVESTIGATION & ANR.
- Citation
- 2013 INSC 224
- Decided
- 8 April 2013
- Disposal
- Appeal(s) allowed
- Bench
- P SATHASIVAM
Holding
A second FIR cannot be registered for the same cognizable offence or the same transaction; any further investigation must be pursued through supplementary reports under Section 173(8) of the CrPC, and the charge‑sheet filed under the second FIR is to be treated as a supplementary charge‑sheet to the first FIR.
Summary
The petitioners, including Amit Shah, challenged the registration of a second FIR (dated 29‑04‑2011) and a fresh charge‑sheet (dated 04‑09‑2012) filed by the CBI in connection with the alleged fake encounter of Tulsiram Prajapati, arguing that it violated their fundamental rights under Articles 14, 20 and 21 and contravened earlier Supreme Court directions. The Court examined whether a second FIR can be filed for the same cognizable offence or the same transaction when further information is obtained after the first FIR. It held that under Sections 154, 155, 156, 157, 162, 169, 170 and 173(8) of the CrPC, only the first FIR is required and any further investigation must be pursued through supplementary reports, not a fresh FIR. The Court found that the CBI itself had treated the Prajapati encounter as part of the same conspiracy investigated in the first FIR and had sought “further investigation” rather than a new case. Consequently, the second FIR and its charge‑sheet were quashed and the latter was directed to be treated as a supplementary charge‑sheet to the first FIR. The petition was allowed, preserving the accused’s constitutional rights and ensuring a unified trial of the connected offences.
Issues considered
- The permissibility of registering a second FIR for the same cognizable offence or the same transaction under the CrPC.
- Whether the charge‑sheet filed under the second FIR should be treated as a fresh charge‑sheet or as a supplementary charge‑sheet to the first FIR.
- Whether the filing of a second FIR violates the fundamental rights of the accused under Articles 14, 20 and 21 of the Constitution.
Legislation cited
- Code of Criminal Procedure, 1973s. 154, s. 155, s. 156, s. 157, s. 162, s. 169, s. 170, s. 173(2), s. 173(8), s. 220, s. 226, s. 227, s. 234(1), s. 239, s. 482
- Constitution of Indias. Article 14, s. Article 20, s. Article 21
Subjects
second FIRsupplementary charge‑sheetCode of Criminal ProcedureSection 173(8)fundamental rightsArticle 14Article 20Article 21fake encounterconspiracyjoint trialSection 220 CrPCinvestigation powers
Judgment
[2013] 6 S.C.R. 623
AMITBHAI ANILCHANDRA SHAH A
v.
THE CENTRAL BUREAU OF INVESTIGATION & ANR.
(Writ Petition (Criminal) No. 149 of 2012)
APRIL 8, 2013
B
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
Code of Criminal Procedure, 1973 - ss.154, 155, 156,
157, 162, 169, 170 and 173(8) - Second FIR - Registration
of - Permissibility - Held: - There can be no second FIR and C
consequently, there can be no fresh investigation on receipt
of every subsequent information in respect of same
cognizable offence or the same occurrence, giving rise to one
or more cognizable offences - Sub-s. (8) of s. 173 empowers
the police to make further investigation, in such cases - In D
the facts and circumstances of the present case, second FIR
and fresh charge--sheet is unwarranted and violative of
fundamental right u/Arts. 14, 20 and 21 of the Constitution -
Hence, the same is quashed and charge-sheet filed in
pursuance of the second FIR, directed to be regarded as a E
supplementary charge-sheet in the first FIR - Constitution of
India, 1950 - Arts. 14, 20 and 21.
Administration of Criminal Justice - Court needs to strike
balance between fundamental rights of accused and power of
police to investigate a cognizable offence - Sweeping power F
of investigation does not warrant subjecting a citizen each
time, to fresh investigation in respect of the same incident,
giving rise to one or more cognizable offences - Code of
Criminal Procedure, 1973 - s.154 - Constitution of India,
1950 - Fundamental Rights. G
In the writ petition [Rubabuddin sheikh vs. State of
Gujarat and Ors. (2010) 2 SCC 200], Supreme Court
entrusted the investigation regarding fake encounter of
623 H
624 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 'S' and abduction of 'K' (wife of 'S') by the Gujarat police
authorities (including the petitioners in the present case)
to CBI from State police. The Court also expressed a
suspicion that the killing of 'TP' -(a close associate of 'S')
could be the part of the conspiracy of killing of 'S' and
B abduction of 'K'. CBI, pursuant thereto lodged first FIR
against the present writ petitioners.
In another writ petition by mother of 'TP' (Narmada
Bai vs. State of Gujarat and Ors. (2011) 5 SCC 79),
Supreme Court rejected the investigation conducted by
C the State Police and entrusted the investigation regarding
disappearance and death of 'TP' to CBI. CBI lodged
second FIR in respect of death of 'TP' against the writ
petitioners in the present case.
D The accused Nos.1 and 3 in the second FIR, filed the
present writ petitions on the ground that the second FIR
was violative of their fundamental rights under Articles 14,
20 and 21 of the Constitution and contrary to the
directions given in Narmada Bai's case and prayed for
E quashing the second FIR and to treat the charge-sheet
in respect of the second FIR as supplementary charge-
sheet in the first FIR.
Allowing the petitions, the Court
F HELD: 1.1. The various provisions of the Cr.P.C.
clearly show that an officer-in-charge of a police station
has to commence investigation as provided in Section
156 or 157 Cr.P.C. on the basis of entry of the First
Information Report, on coming to know of the
G commission of cognizable offence. On completion of
investigation and on the basis of evidence collected,
Investigating Officer has to form an opinion under Section
169 or 170 Cr.P.C. and forward his report to the
concerned Magistrate under Section 173(2) Cr.P.C .. Even
H after filing of such a report, if he comes into possession
AMITBHAI ANILCHANDRA SHAH v. CENTRAL 625
BUREAU OF INVESTIGATION
of further information or material, there is no need to A
register a fresh FIR, he is empowered to make further·
investigation normally with the leave of the Court and
where during further investigation, he collects further
evidence, oral or documentary, he is obliged to forward
the same with one or more further reports which is B
evident from sub-section (8) of s.173 Cr.P.C .. Under the
scheme of the provisions of ss.154, 155, 156, 157, 162,
169, 170 and 173 Cr.P.C., ·only the earliest or the first
information in regard to the commission of a cognizable
offence satisfies the requirements of s.154 Cr.P.C .. Thus, c
there can be no second FIR and, consequently, there can
be no fresh investigation oh receipt of every subsequent
information in respect of the same cognizable offence or
· the same occurrence or incident giving rise to one or
more cognizable offences. [Paras 52(b) and (c)] [671-E-
0
H; 672-A-C]
1.2. On receipt of information about a cognizable
offence or an incident giving rise to a cognizable offence
or offences and on entering FIR in the Station House
Diary, the officer-in-charge of the police station has to E
investigate not merely the cognizable offence reported in
the FIR but also other connected offences found to have
been committed in the course of the same transaction or
the same occurrence and file one or more reports as
provided in s. 173 Cr.P.C .. Sub-s. (8) of s.173 Cr.P.C. F
empowers the police to make further investigation, obtain
further evidence (both oral and documentary) and
forward a further report (s) to the Magistrate. A case of
fresh investigation based on the second or successive
FIRs not being a counter case, filed in connection with G
the same or connected cognizable offence alleged to
have been committed in the course of the same
transaction and in respect of which pursuant to the first
FIR either investigation is underway or final report u/s.
173(2) has been forwarded to the Magistrate, is liable to H
626 SUPREME COURT REPORTS (2013] 6 S.C.R.
A be interfered with by the High Court by exercise of power
u/s.482 Cr.P .C. or u/Arts. 226/227 of the Constitution. [Para
52(d)] [672-C-G]
1.3. First Information Report is a report which gives
first information with regard to any offence. There cannot
8
be second FIR in respect of the same offence/event
because whenever any further information is received by
the investigating agency, it is always in furtherance of the
first FIR. [Para 52(e)] [672-G-H; 673-A]
C Upkar Singh vs. Ved Prakash (2004) 13 SCC 292;
Babubhai vs. State of Gujarat and Ors. (2010) 12 SCC
254: 2010 (10) SCR 651; Chirra Shivraj vs. State of A.P. AIR
2011 SC 604: 2010 (15) SCR 673; C. Muniappan vs. State
of Tamil Na du (2010) 9 SCC 567: 2010 (10) SCR 262;
D Babula/ vs. Emperor AIR 1938 PC 130; S. Swamirathnam vs.
State of Madras AIR 1957 SC 340; State of A.P. vs.
Kandimalla Subbaiah and Anr. AIR 1961 SC 1241; State of
A.P. vs. Cheema/apati Ganeswara Rao and Anr. AIR 1963 SC
1850: 1964 SCR 297 - relied on.
E
Anju Chaudhary vs. State of U.P. and Anr. 2012(12)
Scale 619;Babubhai vs. State of Gujarat (2010) 12 SCC 254:
2010 (10) SCR 651; Surender Kaushik and Ors. vs. State of
U.P. and Ors. JT 2013 (3) SC 472; Nirmal Singh Kah/on vs.
State of Punjab (2009) 1 SCC 441: 2008 (14) SCR 1049;
F Ram Lal Narang vs. State (Delhi Admn.) (1979) 2 SCC 322;
Upkar Singh vs. Ved Prakash and Ors. (2004) 13 SCC 292;
Karl Choudhary vs. Mst. Sita Devi and Ors. (2002) 1 SCC 714:
2001 (5) Suppl. SCR 588 - distinguished.
G 2.1. In the present case according to the CBI itself, it
is the case where the larger conspiracy allegedly
commenced in November, 2005 and culminated into the
murder of 'TP' in December, 2006 in a fake encounter; the
alleged fake encounter of 'TP' was a consequence of
H earlier false encounter of 'S' and 'K' since 'TP' was an eye-
AMITBHAI ANILCHANDRA SHAH v. CENTRA.L 627
BUREAU OF INVESTIGATION
•
witness to the abduction and consequent murders of 'S' A
and 'K'; and 'TP' was allegedly kept under the control of
accused police officers, as a part of the same conspiracy,
till the time he was allegedly killed in a fake encounter.
[Para 33] [662-G-H; 663-A-B]
2.2. The charge-sheet dated 23.07.2010 filed by the 8
CBI in the first FIR clearly show that CBI was very
categorical that killing of 'TP' was also a part of the very
same conspiracy as alleged in the first FIR. Apart from the
above specific stand, CBI filed supplementary charge-
sheet dated 22.10.2010 in the first FIR which clearly show C
that killing of 'TP' was a fake encounter and was part of
the same series of acts so connected together that they
form part of the same conspiracy as alleged in the first
FIR. In view of the same, there cannot be a second FIR
dated 29.04.2011 and fresh charge-sheet dated 04.09.2012 D
for killing of 'TP'. [Paras 21-22] [641-D-E; 642-H; 643-A, DJ
2.3. During pendency of Writ Petition (Narmada Bai
case), the CBI, in its affidavit prayed for "further
investigation" in the first FIR. Thus, it leaves no room for E
doubt that the CBI itself prayed for "further investigation"
so as to enable it to "complete the investigation in first
FIR" filed by the CBI, i.e., FIR dated 01.02.2010 by
investigating encounter of 'TP'. [Paras 23 and 24] [643-
E; 644-E-F]
F
2.4. Petitioner No. 1 was arrested in the first FIR and
charge-sheet dated 23.07 .2010, and was further
interrogated even on the question of alleged killing of
'TP'. When petitioner No.1 filed regular bail application,
the CBI had opposed the same contending that the G
alleged killing of 'TP' as a part of the same series of acts,
viz., killing of 'S' and 'K'. [Para 27] [S51-F-G]
2.5. The findings rendered in Narmada Bai case
clearly show the acceptance of the contentions raised by
the CBI that killing of two individuals and killing of third H
628 SUPREME COURT REPORTS [2013] 6 S.C.R.
A person, viz., 'TP' were part of the very same conspiracy
and in the same series of acts so connected together that
they will have to be tried in one trial u/s. 220 Cr.P.C ..
After the investigation of the second FIR, the CBI filed
charge-sheet dated 04.09.2012 wherein, among others,
B the petitioner was also arrayed as one of the accused. The
details mentioned in the charge-sheet dated 04.09.2012
clearly show that what the CBI has conducted is mere
'further investigation' and the alleged killing of 'TP' was
in continuance of and an inseparable part of the
c conspiracy which commenced in November, 2005 by
abduction of 'S', 'K' and 'TP' and which culminated into
the final stage of alleged killing of 'TP' who was kept
under the control of accused police officers since he was
a material eye-witness like 'K'. Thus, the charge-sheet
0 dated 04.09.2012 itself is conclusive to show that the said
charge-sheet, in law and on facts, deserves to be treated
as 'supplementary charge-sheet in the first FIR'. [Paras
28 and 30) [655-F-H; 658-G-H; 659-A-B]
2.6. In view of the factual situation as projected by
-E the CBI itself, merely because two separate complaints
had been lodged, did not mean that they could not be
clubbed together and one charge-sheet could not be
filed. In view of the consistent stand taken by the CBI, at
this juncture, CBI may not be permitted to adopt a
F contradictory stand. [Paras 33 and 34) [663-C-D]
T. T. Anthony vs. State of Kera/a (2001) 6 SCC 181: 2001
(3) SCR 942; C. Muniappan and Ors. vs. State of Tamil Nadu
(2010) 9 SCC: 2010 (10) SCR 262 - relied on.
G 2. 7. The factual details show that right from the
inception of entrustment of investigation to the CBI by
order dated 12.01.201 O till filing of the charge-sheet dated
04.09.2012, this Court has also treated the alleged fake
encounter of 'TP' to be an outcome of one single
H conspiracy alleged to have been hatched in November,
AMITBHAI ANILCHANDRA SHAH v. CENTRAL 629
BUREAU OF INVESTIGATION
2005 which ultimately culminated in 2006. In such A
circumstances, the filing of the second FIR and a fresh
charge-sheet foi"the same is contrary to the provisions
of Cr.P.C. suggesting that the petitioner was not being
investigated, prosecuted and tried 'in accordance with
law' . [Para 31] [659-C-E] B
2.8. The observations, findings and directions in
Rubabbuddin Sheikh case clearly show that the alleged
killing of 'TP' was thus perceived even by this Court to
be an act forming part of the very same transaction and C
same conspiracy in which the offence of killing of 'S' and
'K' took place. The CBI also, upon investigation held that
"strong suspicion expressed by this Court in the above
judgment was true and filed charge sheet/s". [Para 19]
·, [641-A-B]
D
2.9. This Court accepting the plea of the CBI in
Narmada Bai case that killing of 'TP' was part of .the same
series of cognizable offence forming part of the first FIR
directed the CBI to "take over" the investigation and did
not grant the relief prayed for i.e., registration of a fresh E
FIR. Accordingly, filing of a fresh FIR by the CBI is
contrary to various decisions of this Court. [Para 52(a)]
[671-D]
2.10. A second FIR in respect of an offence or
F
different offences committed in the course of the same
transaction is not only impermissible but it violates Article
21 of the Constitution. Thus, in the light of the specific
stand taken by the CBI before this Court in the earlier
proceedings by way of assertion in the form of counter
affidavit, status reports, etc., filing of the second FIR and G
fresh charge-sheet is violative of fundamental rights
under Article 14, 20 and 21 of the Constitution since the
same relate to alleged offence in respect of which an FIR
had already been filed and the court has taken
cognizance. [Paras 32 and 53] [659-F; 674-E-F] H
630 SUPREME COURT REPORTS (2013] 6 S.C.R.
A T. T. Anthony vs. State of Kera/a (2001) 6 SCC 181: 2001
(3) SCR 942 - relied on.
2.11. Thus, the second FIR dated 29.04.2011 filed by
the CBI is contrary to the directions issued in judgment
B and order dated 08.04.2011 by this Court in Writ Petition
(Narmada Bai case) and accordingly the same is
quashed. As a consequence, the charge-sheet filed on
04.09.2012, in pursuance of the second FIR, be treated as
a supplementary charge sheet in the first FIR. [Para 54]
C [675-A-B]
Narmada Bai vs. State of Gujarat and Ors. (2011) 5 SCC
79: 2011 (5) SCR 729; Rubabbuddin Sheikh vs. State of
Gujarat and Ors. (2010) 2 SCC 200: 2010 (1) SCR 991 -
referred to.
D
3. Administering criminal justice is a two-end
process, where guarding the ensured rights of the
accused under Constitution is as imperative as ensuring
justice to the victim. Thus, a just balance between the
E fundamental rights of the accused guaranteed under the
Constitution and the expansive power of the police to
investigate a cognizable offence has to be struck by the -
court. Accordingly, the sweeping power of investigation
does not warrant subjecting a citizen each time to fresh
F investigation by the police in respect of the same incident,
giving rise to one or more cognizable offences. As a
consequence, this is a fit case for quashing the second
FIR to meet the ends of justice. [Para 52(i)] [673-H; 674-
A-C]
G Case Law Reference
2011 (5) SCR 729 referred to Para 1
2010 (10) SCR 262 relied on Para 7
2010 (1) SCR 991 referred to Para 17
H
AMITBHAI ANILCHANDRA SHAH v. CENTRAL 631
BUREAU OF INVESTIGATION
2001 (3) SCR 942 relied on Para 32 A
(2004) 13 sec 292 relied on Para 33
2010 (10) SCR 651 relied on Para 33
2010 (15) SCR 673 relied on Para 33
B
2010 (10 ) SCR 262 relied on Para 33
AIR 1938 PC 130 relied on Para 36
AIR 1957 SC 340 relied on Para 37
AIR 1961 SC 1241 relied on Para 38 c
1964 SCR 297 relied on Para 39
2012(12) Scale 619 distinguished Para 41
2010 (10) SCR 651 distinguished Para 42 D
JT 2013 (3) SC 472 distinguished Para 43
2008 (14) SCR 1049 distinguished Para 44
(1979) 2 sec 322 distinguished Para 45
E
(2004) 13 sec 292 distinguished Para 48
2001 (5) Suppl. SCR 588 distinguished Para 49
CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.)
No. 149 of 2012.
F
Under Article 32 of the Constitution of India.
WITH
W.P.(Crl.} No. 5 of 2013
H.P. Raval, ASG, Mahesh Jethmalani, K.V. Viswanathan, G
Mukul Gupta, Adish C Aggarwala, Tushar Mehta, AAG, Pranav
Badheka, Devang Vyas, Shally Bhasin Maheshwari, S.S.
Shamshery, Shubhashis R. Soren, V.M. Vishnu, Bharat Sood,
Ruchi Kohli, Ritin Rai, Siddhartha Dave, Anando Mukherjee,
H
632 SUPREME COURT REPORTS [2013] 6 S.C.R.
A Maheen N. Pradhan, B.V. Bairam Das, Subramonium Prasad,
Ejaz Khan, Hemantika Wahi, S.S. Nehra, Sandeep Garg,
Sudhir Aggrawal, Nirnimesh Dube for the Appearing Parties.
The Judgment of the Court was delivered by
B P. SATHASIVAM, J. 1. Amitbhai Anilchandra Shah has
filed the present Writ Petition being No. 149 of 2012 under
Article 32 of the Constitution of India owing to the filing of fresh
FIR being No. RC-3(S)/2011/Mumbai dated 29.04.2011 by the
Central Bureau of Investigation (CBI) and charge sheet dated
C 04.09.2012 arraying him as an accused in view of the directions
given by this Court to the Police Authorities of the Gujarat State
to handover the case relating to the death of Tulsiram Prajapati
- a material witness to the killings of Sohrabuddin and his wife
Kausarbi to the CBI in Narmada Bai vs. State of Gujarat &
D ors., (2011) s sec 79.
2. In Narmada Bai (supra), this Court, taking note of the
fact that the charge sheet has been filed by the State of Gujarat
after a gap of 3Y:z years and also considering the nature and
E gravity of the crime, rejected the investigation conducted/
concluded by the State Police and directed the State police
authorities to handover the case to the CBI. After investigation,
the CBI filed a fresh FIR dated 29.04.2011 against various
police officials of the States of Gujarat and Rajasthan and others
for acting in furtherance of a criminal conspiracy to screen
F themselves from legal consequences of their crime by causing
the disappearance of human witness, i.e., Tulsiram Prajapati,
by murdering him on 28.12.2006 and showing it off as a fake
encounter. Though the said FIR did not specifically name any
person, in the charge sheet dated 04.09.2012 filed in the said
G FIR before the Court of Judicial Magistrate First Class, Danta
District, Banaskantha, Gujarat, the petitioner herein was
arrayed as A-1. Further, due to lack of jurisdiction, the charge
sheet was presented before the 2nd Additional Chief Judicial
Magistrate, (First Class), (CBI Court No. 1), Ahmedabad,
H Gujarat.
AMITBHAI ANILCHANDRA SHAH v. CENTRAL 633
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.]
3. Being aggrieved by the fresh FIR dated 29.94.2011 and A
charge sheet dated 04.09.2012, the petitioner herein has filed
the above said writ petition on the ground of it being violative
of his fundamental rights under Articles 14, 20 and 21 of the
Constitution and contrary to the directions given in Narmada
Bai (supra). B
Writ Petition (Criminal) No. 5 of 2013:
4. Sangiah Pandiyan Rajkumar IPS-who was arrayed as
A-3 in the charge sheet dated 04.09.2012 has filed the above
said writ petition praying for similar relief as sought for in Writ C
Petition (Crl.) No. 149 of 2012. Since the grievance of the
above-said petitioner is similar to that of the petitioner in W.P.
(Crl.) No. 149 of 2012, there is no need to traverse those details
once again.
D
5. Heard Mr. Mahesh Jethmalani, learned senior counsel
for the petitioner in W.P. (Crl.) No. 149 of 2012, Mr. K.V.
Viswanathan, learned senior counsel for the petitioner in W.P.
(Crl.) No. 5 of 2013, Mr. H.P. Rawal, learned Additional Solicitor
General for the CBI and Mr. Tushar Mehta, learned Additional E
Advocate General for the State of Gujarat.
Discussion:
6. A perusal of the prayer in the writ petition clearly stiows
that the petitioner is not seeking quashing of investigation, F
however, praying for quashing of second FIR being No. RC-
3(S)/2011/Mumbai dated 29.04.2011 and also praying that the
charge sheet dated 04.09.2012 in respect of the said FIR be
treated as supplementary chargesheet in first FIR being No. RC
No. 4S of 2010 so that his fundamental right under Article 21 G
is not infringed.
7. Mr. Mahesh Jethmalani, learned senior counsel for the
petitioner pointed out that the reliefs sought for are in
consonance with the law laid down by this Court in· C.
Muniappan & Ors. vs. State of Tamil Nadu (2010) 9 SCC 567. H
634 SUPREME COURT REPORTS [2013] 6 S.C.R.
A He very much relied on para 37 of the said judgment which
holds as under:
"..... Merely because two separate complaints had been
lodged, did not mean that they could not be clubbed
together and one charge sheet could not be filed"
B
8. It is also pointed out by learned senior counsel for the
petitioner-Amit Shah that the above said prayer is based upon
CBl's own finding that the offence covered by the Second FIR
is part of the same conspiracy and culminated into the same
C series of acts forming part of the same transaction in which the
offence alleged in the first FIR was committed. It is also pointed
out that it is the case of the CBI itself before this Court that even
the charges will have to be framed jointly and one trial will have
to be held as contemplated under Section 220 of the Code of
D Criminal Procedure, 1973 (in short 'the Code'). It is further
pointed out that as per the CBI, the alleged criminal conspiracy
commenced when Sohrabuddin and Kausarbi (whose deaths
were in question in the first FIR) and Tulsiram Prajapati (whose
death was in question in the second FIR) were abducted from
E Hyderabad after which Sohrabuddin was allegedly killed on 25/
26.11.2005 and Kausarbi and Tulsiram Prajapati were killed
thereafter since they were, as per CBI, the eye-witnesses.
Finally, it is highlighted that the competent jurisdictional court
has already taken cognizance of all the three alleged killings
F in the chargesheeVchallan filed by the CBI in the first FIR itself.
9. Before going into the factual matrix as projected by
learned senior counsel for the petitioner, it is desirable to refer
to the stand taken by the CBI.
G 10. It is the definite case of the CBI that the abduction of
Sohrabuddin and Kausarbi and their subsequent murders as
well as the murder of Tulsiram Prajapati are distinct offences
arising out of separate conspiracies though inter-connected with
each other as the motive behind the murder of Tulsiram
H Prajapati was to destroy the evidence in respect of the
AMITBHAI ANILCHANDRA SHAH v. CENTRAL 635
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.)
abduction of Sohrabuddin and Kausarbi, as he was a prime A
witness to the said incident. It is not in dispute that as per the
scheme prescribed in the Code, once a complaint is received
with respect to a cognizable offence, the investigating authority
is duty bound to register an FIR and, thereafter, initiate
investigation. B
11. Mr. Rawal, learned Additional Solicitor General·
appearing for the CBI, by drawing our attention to Section 218
of the Code submitted that a distinct charge is to be framed
for a distinct offence, i.e., there has to be a separate charge C
for separate offence and each distinct charge has to be tried
separately. He further pointed out that the concept of joint trial,
which is an exception and not the rule cannot be made
applicable to the stage either of investigation or the filing of
charge sheet of a report under Section 173(2) of the Code. He
also highlighted that in the Code, there is no concept of joint D
investigation. The only exception is under Sections 219 and 220
of the Code that a person can be tried at one trial for more
offences than one committed within a period of one year. He
also pointed out that there is no bar in law to file separate FIR/
complaint in respect of two distinct offences and similarly there E
is no bar to file two separate charge-sheets for seeking
prosecution of accused in two distinct offences. He further
highlighted that in T. T. Anthony vs. State of Kera/a (2001) 6
sec 181, the principle that was laid down with regard to the
bar of filing of the second FIR was only in respect of the same F
incident or occurrence. According to him, whether the offences
are distinct or same would necessarily have to be examined in
the facts and circumstances of each case. He also submitted
that the facts urged in the affidavit were on the basis of mere
suspicion, hence, CBI cannot be held to be bound by its initial G
response in the status report or the affidavit since on a
complete investigation, it is revealed that not only both the
offences are distinct and separate but both the conspiracies
were also hatched at different points of time. It is also pointed
out by the CBI that the abduction and subsequent murder of H
636 SUPREME COURT REPORTS [2013] 6 S.C.R.
A Sohrabuddin and the murder of Tulsiram Prajapati after a
period of more than one year are separate and distinct
offences. According to him, the material available with the CBI
would show distinct and separate conspiracy to eliminate
Sohrabuddin and, thereafter, another conspiracy was hatched
B in order to eliminate Tulsiram Prajapati as soon as the accused
persons apprehended that Tulsiram Prajapati would spill the
beans with respect to elimination of Sohrabuddin in a fake
encounter.
12. It is the definite case of the CBI that the investigation
C has revealed that subsequent to the murder of Hamid Lala,
Sohrabuddin and Tulsiram Prajapati continued their criminal
activities in the States of Maharashtra, Rajasthan and Gujarat.
However, Sohrabuddin remained elusive and beyond the reach
of the Gujarat Police. It was, therefore, that the accused Amit
D Shah (petitioner herein), D.G. Vanzara, S. Pandiyan Rajkumar,
Dinesh Man and others entered into a consp.iracy to abduct and
murder Sohrabuddin. Accordingly, D.G. Vanzara, with the aid
of Abhay Chudasma, S.P. Valsad had Tulsiram Prajapati, an
associate of Sohrabuddin, in order to trace Sohrabuddin. Whilst
E giving such directions, D.G. Vanzara also assured Tulsiram ·
Prajapati that he would ensure safe passage for him as he
would be implicated in some petty cases. It was after this
assurance from D.G. Vanzara and Abhay Chudasma that
Tulsiram Prajapati agreed to help them in tracing and locating
F Sohrabuddin. Accordingly, Tulsiram Prajapati, in accordance
with his clandestine agreement with the Gujarat Police,
informed them in advance about the plan of Sohrabuddin to
travel to Sangli from Hyderabad and, thereafter, Sohrabuddin
was abducted and murdered. By pointing out the above factual
G details, it is the stand of the CBI that the first conspiracy took
place to eliminate Sohrabuddin with the help of Tulsiram
Prajapati who agreed to trace and locate him after the
assurances given by the Gujarat Police. Thus, in the aforesaid
conspiracy, Tulsiram Prajapati can be said to be a part of the
H said conspiracy though not knowing the motive about the same.
AMITBHAI ANILCHANDRA SHAH v. CENTRAL· 637
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.]
13. It is further pointed out that in pursuance of the A
aforesaid criminal conspiracy, Sohrabuddin, Kausarbi and
Tulsiram Prajapati were brought to Valsad, Gujarat in vehicles
by Gujarat Police. From Valsad, Tulsiram Prajapati was allowed
to return to Bhilwara, Rajasthan by the police party.
Subsequently, Sohrabuddin was murdered and shown as if he B
was a Lashkar-e-Taiba terrorist killed in an encounter with a
police party on 26.11.2005 at Ahmedabad while his wife
Kausarbi was murdered on 29/30.11.2005 and her body was
disposed off. Tulsiram Prajapati was shown to be arrested on
29.11.2005. Since then, he had been lodged in Udaipur Jail c.
till he met his fate.
14. The most vital evidence that seems to have triggered
Tulsiram Prajapati's death is a letter of Shri V.L Solanki dated
18.12.2006 seeking permission to interrogate Tulsiram
Prajapati and Sylvester lodged in Udaipur Jail. On the very D
same letter, Ms. Geetha Johri, head of the SIT is alleged to
have recorded that even she may be given permission to
accompany the 10 for interrogation. Thereafter, the said letter
is alleged to have been endorsed by Ms. Geetha Johri to Shri
G.C. Raiger, Additional DGP, CID. It is further pointed out that E
the said letter of Shri V.L Solanki containing the note of Ms.
Geetha Johri was not found in the official file. In its place, a
fabricated note dated 05.01.2007 along with a noting of Shri
G.C. Raiger dated 06/08.01.2007 was found in the file in which
it was recorded as under:- F
"13(d) To go to Udaipur to interrogate accused Sylvester
and Tulsi Prajapati (both being allegedly primary witnesses
in the case) of whom Tulsi was recently encountered at BK
by border range." G
15. It is also pointed out by the CBI that at the time of the
· murder of Sohrabuddin, there was no conspiracy to murder
Tulsiram Prajapati and it is only subsequent to his murder when
the accused persons feared of Tulsiram Prajapati being a threat
to them and would spill the beans as he was a material witness H
638 SUPREME COURT REPORTS [2013] 6 S.C.R.
A in the first conspiracy inasmuch as tracing and locating of
Sohrabuddin on the assurances of the accused, another
conspiracy was hatched to murder a potential witness to the
murder of Sohrabuddin. By highlighting these factual details, it
is pointed out by the CBI that there were two distinct and
B separate conspiracies.
16. With these factual aspects, as projected by the CBI,
let us analyze further details highlighted by learned senior
counsel for the petitioner as well as the specific stand of the
C CBI in the earlier proceedings asserted before this Court in the
form of affidaviVcounter affidavit and status reports.
Entrustment of investigation to the CBI in respect of 1st
FIR:
0 17. Initially, Gujarat police conducted investigation into the
killing of two individuals and filed charge sheet in the FIR being
Crime Register No. 5/2006. This Court, in the writ petition filed
in Rubabbuddin Sheikh vs. State of Gujarat and Others (2010)
2 SCC 200 did not accept the investigation of the Gujarat
E Police and consequently directed the CBI to conduct
investigation. This order was passed by this Court on
12.01.2010. In the said decision, this Court expressed a
suspicion that the alleged killing of Tulsiram Prajapati could be
the part of the same conspiracy. It is useful to refer the relevant
excerpts from the above decision which are as under:
F
"(i) The writ petitioner also seeks the registration of an
offence and investigation by CBI into the alleged encounter
of one Tulsiram, a close associate of Sohrabuddin, who
was allegedly used to locate and abduct Sohrabuddin and
G his wife Kausarbi, and was thus a material witness against
the police personnel.
(ii) The report expressly states that no link of Tulsiram
Prajapati had been established in this case. The third
person who was abducted was not to be the said Tulsiram
H Prajapati.
AMITBHAI ANILCHANDRA SHAH v. CENTRAL 639
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.]
(iii) On 02.08.2007, the seventh action taken report was A
filed, which stated that the third person who was picked
up was one Kalimuddin, who was suspected to be an
informer of the Police.
(iv) From the charge-sheet, it also appears that the third B
person was "sent somewhere". However, it appears that
the literal translation of the charge-sheet in Gujarati would
mean that he was "anyhow made to disappear''.
(v) It also appears from the charge-sheet that it identifies
the third person who was taken to Disha farm as C
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. D
(vi) Similarly, it was submitted that non-identification of the
third person who was abducted along with Sohrabuddin
and Kausarbi would also not affect the prosecution case."
18. After expressing and arriving at such a conclusion, this E
Court concluded that "the possibility of the third person being
Tulsiram Prajapati cannot be ruled out and that his killing could
be an attempt to destroy a human witness" and after saying so,
transferred the investigation to the CBI. Ultimately, this Court
directed the CBI "to unearth the larger conspiracy". The F
following categorical observations and directions in paras 65,
66 and 82 are relevant which are noted hereunder:-
"65. It also appears from the charge-sheet that it identifies
the third person who was taken to Disha farm as G
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. H
640 SUPREME COURT REPORTS [2013] 6 S.C.R.
A In our view, the facts surrounding his death evokes strong
suspicion that a deliberate attempt was made to destroy
a human witness.
66. So far as the call records are concerned, it would
be evident from the same that they had not been analysed
B
properly, particularly the call data relating to three senior
police officers either in relation to Sohrabuddin's case or
in Prajapati's case. It also appears from the charge-sheet
as well as from the eight action taken reports that the
motive, which is very important in the investigation reports
c was not properly investigated into as to the reasons of their
killing. The motive of conspiracy cannot be merely fame
and name. No justification can be found for the Investigating
Officer Ms Johri walking out of the investigation with
respect to Tulsiram Prajapati's death without even
D informing this Court.
82. Accordingly, in the facts and circumstances even
at this stage the police authorities of the State are directed
to hand over the records of the present case to the CBI
E Authorities within a fortnight from this date and thereafter
the CBI Authorities shall take up the investigation and
complete the same within six months from the date of
taking over the investigation from the State police
authorities. The CBI Authorities shall investigate all
F aspects of the case relating to the killing of Sohrabuddin
and his wife Kausarbi including the alleged possibility of
a larger conspiracy. The report of the CBI Authorities shall
be filed in this Court when this Court will pass further
necessary orders in accordance with the said report, if
necessary. We expect that the Police Authorities of Gujarat,
G
Andhra Pradesh and Rajasthan shall cooperate with the
CBI Authorities in conducting the investigation properly and
in an appropriate manner."
19. The observations, findings and directions in
H Rubabbuddin Sheikh (supra) clearly show that the alleged
AMITBHAI ANILCHANDRA SHAH v. CENTRAL 641
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.]"
killing of Tulsiram Prajapati was thus perceived even by this A
Court to be an act forming part of the very same transaction
and same conspiracy in which the offence of killing of
Sohrabuddin and Kausarbi took place. The CBI also, upon
investigation held that "strong suspicion expressed by this Court
in the above judgment was true and filed charge sheet/s". B
20. Pursuant to the decision in Rubabbuddin Sheikh
(supra) dated 12.01.2010, the CBI filed a fresh FIR, viz., first
FIR. It is also clear that during the investigation, the CBI came
to the conclusion that this first FIR was a part of the series of C
acts concerning with the alleged offence of abduction and killing
of two individuals, viz., Sohrabuddin on 25/26.11.2005 and
· Kausarbi on 29.11.2005 culminating with the killing of one more
. person, viz., Tulsiram Prajapati as part of the very same
conspiracy.
D
21. Now, let us discuss the charge sheet dated 23.07.2010
filed by the CBI in the first FIR . .A§ rightly pointed out by Mr.
Mahesh Jethmalani, learned senior counsel for the petitioner·
Amit Shah, in this chargesheet itself, the CBI categorically
mentioned that the killing of Tulsiram Prajapati is also a part of E
· the very same conspiracy which is mentioned in the first FIR
above. Though, before us, a different stand was taken by the
CBI, the following excerpts of the charge sheet clearly show that
CBI was very categorical that killing of Tulsiram Prajapati is
also a part of the very same conspiracy, which are as under:- F
"11 ...... Shri Naymuddin, brother of Shri Sohrabuddin had
gone to see off Shri Sohrabuddin, sister-in-law Smt.
Kausarbi and Tulsiram Prajapati at Indore Bus Stand.
19. Investigation further revealed that the Police Party also G
followed the luxury bus. About 15 to 20 kilometers from the
hotel, on the instructions of Shri Rajkumar Pandiyan (A-2)
their vehicles overtook the luxury bus and stopped the bus.
Two police persons entered into the bus and asked the
driver to switch on the light. While the third police P.erson H
642 SUPREME COURT REPORTS [2013] 6 S.C.R.
A was having torch in his hand remained near the door of
the bus. The police persons told there is police checking.
All the three police personnel were in civil dress. They
picked up Tulsiram Prajapati who was sitting in the bus.
After sometime, they again came into bus and picked up
B Sohrabuddin. When Sohrabuddin was made to get down
from the bus, Kausarbi also got down .....
20. Investigation further disclosed that Shri Sohrabuddin
and Tulsiram Prajapati abducted by police party were
made to sit in the Qualis while Kausarbi was made to sit
c in one of the Tata Sumo vehicles along with Santram
Sharma (A-11 ) ..... All of them reached Valsad where at
one big hotel, both the Tata Sumo Vehicles were stopped
and they took lunch. Tulsiram Prajapati was shifted to
another vehicle which was brought by Rajasthan Police
D personnel. They took him straight to Udaipur where he was
kept in illegal custody for five days. Thereafter, he was
shown arrested by a team lead by Shri Bhanwar Singh
Hada, lnspector/SHO P.S. Hathipole, Udaipur Rajasthan
from Bhilwara.
E
32. Investigation further disclosed that in the early part of
November, 2005, Shri Tulsiram Prajapati was contacted
by accused Abhay Chudasama (A-15) and brought to
Ahmedabad where he was produced before accused D.G.
F Vanzara (A-1). They asked him to make Sohrabuddin
available before them as there was lot of political pressure.
Tulsiram Prajapati was assured that Sohrabuddin would
get a safe passage and at the most Sohrabuddin would
be put in jail so as to keep him away from glare for 3-4
months. No physical harm would be done to Sohrabuddin.
G
Having got the assurance from accused D.G. Vanzara (A-
1), Tulsiram Prajapati helped accused Abhay Chudasama
(A-15) in tracking down Sohrabuddin."
22. Apart from the above specific stand, it is also relevant
H
AMITBHAI ANILCHANDRA SHAH v. CENTRAL 643
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.]
to point out that the CBI filed supplementary chargesheet dated A
22.10.201 o in the first FIR which made the following charges:-
" Investigation has also revealed that after the Gujarat
Police Officers had eliminated Shri Tulsiram Prajapati on
28.12.2006 in a fake encounter, Sm!. Geeta Johri, the then B
IGP prepared a note sheet on 05.01.2006 mentioning
therein inter alia the permission to go to Udaipur to
interrogate the aforesaid two associates of Sohrabuddin
viz., Sylvester and Tulsiram Prajapati, of whom, she
mentioned that Tulsriram Prajapati was encountered by the C
Police .... "
The above extracts culled out from the chargesheet and
supplementary chargesheet filed in the first FIR by the CBI would
clearly show that killing of Tulsiram Prajapati was a fake
encounter and was part of the same series of acts so D
connected together that they form part of the same conspiracy
as alleged in the first FIR. In view of the same, there cannot be
a second FIR dated 29.04.2011 and fresh chargesheet dated
04.09.2012 for killing of Tulsiram Prajapati.
E
23. It is also relevant to point out that when Writ Petition
(Crl.) No. 115 of 2007 was pending, the CBI, by way of an
affidavit dated 19.08.2010, furnished the following information:-
(i) Tulsiram Prajapati's killing is a part of the same series
of acts in which killing of Sohrabuddin and Kausarbi took F
place.
(ii) All the three killings are part of the same conspiracy.
(iii) Trial of all the three offences shall have to be one trial G
under Section 220 of the Code.
(iv) CBI be given formal permission to investigate Tulsiram
Prajapati killing as "further investigation" in the first FIR
filed by CBI which inve~,tigation was going on.
y H
644 SUPREME COURT REPORTS [2013) 6 S.C.R.
A (v) If CBI is not formally given investigation of Tulsiram
Prajapati, prosecution would face questions of "issue
estoppel" & "Res-judica!a".
In the said affidavit, the CBI even prayed for "further
B investigation" in the first FIR which becomes evident from the
prayer made by the CBI in the last paragraph of the affidavit
which reads as under:-
"12. That on 12.08.2010, the Hon'ble Supreme Court (Mr.
Justice Aftab Alam and Mr. Justice R.M. Lodha) has
C granted three more months to complete the investigation.
Hence, it is prayed that orders for transferring Tulsiram
Prajapati case to the CBI may be issued for expeditious
completion of investigation."
o 24. As rightly pointed out by Mr. Mahesh Jethmalani, the
above prayer of the CBI makes it clear that the CBI had also
prayed for entrustment of Tulsiram Prajapati's encounter "to
complete the investigation" for which three months time was
granted in W.P. (Crl.) No. 6 of 2007 to complete the
E investigation in the first FIR. On reading the abovesaid affidavit
as a whole and the paragraphs quoted above in particular, it
leaves no room for doubt that the CBI itself prayed for "further
investigation" so as to enable it to "complete the investigation
in first FIR" filed by the CBI, i.e., FIR dated 01.02.2010 by
F investigating Tulsiram Prajapati encounter. In this regard, the
order of this Court dated 12.08.2010 relied upon by the CBI is
relevant and the same is quoted hereunder:-
"Order
G "In pursuance of the order passed by this Court on January
12, 2010, the CBI has submitted a status report. In the
status report, it is stated that they have been carrying on
investigations as directed by this Court, but on certain
aspects of the matter the investigation remain incomplete.
H A prayer is, therefore, made to grant them. six months
AMITBHAI ANILCHANDRA SHAH v. CENTRAL 645
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.]
further time to complete the investigation. It is further A
prayed that three other cases that were registered in
connection with the alleged escape of Tulsiram Prajapati
from police escort and his death in a police encounter may
also be transferred for investigation to the CBI because
the death of Tulsiram Prajapati in the alleged encounter B
formed an inseparable part of the investigation which is
entrusted to the CBI by this Court.
Today, Mr. Jethmalani, senior advocate, appeared
on behalf of one of the accused-Amit Shah. Mr. Jethmalani
strongly criticized the manner of investigation by the CBI c
and alluded to some larger political conspiracy. He
submitted that he proposed to take steps of recall/
modification of the order dated January 12, 201 O passed
by this Court by which the investigation of the case was
taken away from the Gujarat Police and was handed over D
to the CBI.
Today, we can proceed only on the basis of the
previous order passed on January 12, 2010 by which the
CBI was directed to investigate all aspects of the case, E
relating to the killing of Sohrabuddin and his wife Kausarbi
including the alleged possibility of a larger conspiracy. By
that order, the CBI was asked to complete the investigation
within six months from the date it took over the case from
the State police and to file its report to this Court when this F
in
Court would pass further necessary orders accordance
with the said report, if necessary.
As on date, the investigation ordered to be made
remains incomplete. In continuation of the previous order,
therefore, the time allowed to the CBI to complete the G
investigation is extended by three months from today, at
the end of which they would file a status report before this
Court.
Put up on receipt of the status report." H
646 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 25. It is clear that in both the status report(s) as well as in
the affidavit filed in W.P. (Crl.) No. 115/2007, the CBI prayed
for entrusting the investigation relating to Tulsiram Prajapati on
the ground that his encounter was a part of the very same
offence in the first FIR which CBI was investigating. It is not in
B dispute that this Court, after entrusting the investigation to the
CBI by order dated 12.01.2010 was monitoring the said
investigation in W.P. (Crl.) No. 6 of 2007. Even in the said writ
petition, the CBI filed status report(s) contending that Tulsiram
Prajapati's killing was a part of the very same conspiracy and
c series of the very same transactions in which Sohrabuddin and
Kausarbi were abducted and killed. The following averments
in the affidavit dated 19.08.2010 in W.P. (Crl.) No. 115 of 2007
made by the CBI are relevant which are as under:-
"47. During the investigation of Sohrabuddin and Kausarbi
D matter it has emerged that there are clear circumstances
indicating that the encounter of Tulsiram Prajapati on
28.12.2006 was done in order to eliminate him as he was
the key witness in the criminal conspiracy of the abduction
and killing of Sohrabuddin and Kausarbi by the powerful
E and influential accused persons. The CBI investigation has
been conducted into this aspect in view of the following
observations of the Hon'ble Supreme Court in its order
dated 12.01.2010.
F 48. The investigation has disclosed that Tulsiram Prajapati
@ Praful @ Sameer @ Babloo s/o Gangaram Prajapati,
r/o Shantinagar PS Neel Ganga District Ujjain, M.P. was
a close associate of Sohrabuddin. Both hailed from same
Uliain district of MP and knew each other since the days
Sohrabuddin was lodged in Sabarmati Jail in the Arms
G
recovery case. Tulsiram was working with him as his sharp
shooter ....
51. The investigation has further revealed that Tulsiram
was picked up by the Police of Gujarat and Rajasthan to
H trace Sohrabuddin about 20 days prior to the encounter
AMITBHAI ANILCHANDRA SHAH v. CENTRAL 647
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.]
of Sohrabuddin. Both Sohrabuddin and his wife Kausarbi A
were abducted on the information of Tulsiram. He was
promised by accused Shri D.G. Vanzara (A-1) and
accused Shri Abhay Chudasama (A-15) that no physical
harm would be caused to Sohrabuddin because
Sohrabuddin was their old associate. Further, Tulsiram B
was shown to have been arrested on 29.11.2005 at
Bhilwada (Rajasthan) by the Rajasthan police i.e., after the
fake encounter of Sohrabuddin on 26.11.2005.
52. The investigation has further revealed that after the fake C
encounter of Sohrabuddin and murder of Kausarbi said
deceased Tulsiram Prajapati knew that his death was
imminent at the hands of the Gujarat Police in connivance
with the Rajasthan Police as he was the only surviving
prime witness to the abduction and killing of Kausarbi and
Sohrabuddin. The grave apprehensions of Tulsiram 0
Prajapati were expressed by him in his applications filed
in the court of ACJM City (North) No. 1, Udaipur, on
27 .01.2006 and 02.02.2006 and his letters addressed to
the National Human Rights Commission (NHRC) dated
18.05.2006 and to the Collector, Udaipur dated E
11.05.2006. In addition, he made verbal/oral prayer before
the Hon'ble Principal Judge, Ahmedabad on 28.11.2006.
Out of sheer desperation, he made the fervent appeal
before the Hon'ble Judge that he would be alleged to have
shown as escaped from the police escort party custody F
and subsequently killed in a fake encounter. True to his
apprehension, the premonition came true as the events
such as his alleged escape from the escape custody on
26.12.2006 registered with Ahmedabad Railway PS vide
CR No. 294/2006 on 27.12.2006 and alleged fake G
encounter on 28.12.2006 registered with Ambaji Police
Station vide CR No. 115/2006 dated 28.12.2006.
54. Shri V.K. Goda, who had demitted the office of IG of
Police, Udaipur on 31.10.2005 on superannuation has H
648 SUPREME COURT REPORTS [2013] 6 S.C.R.
A stated during his examination by the CBI that he had
received a letter in the month of November 2005
addressed to him in his named cover by the family
members of Tulsiram Prajapati which was duly forwarded
by the then MLA. The letter could not be made available
B to the CBI. As per the statement of Shri Godila, the
contents of the letter revealed that the family members of
Tulsiram Prajapati apprehended that Shri Tulsiram
Prajapali was illegally detained by Police and was in their
illegal custody. The letter also revealed that the state of
c despair of family members of Shri Tulsiram Prajapali as
they apprehended death for which they immediately
wanted action by the then IG of Police, Udaipur through the
people representative. This is an additional corroboration
that Tulsiram Prajapati was in the Police Custody just prior
to the encounter of Sohrabuddin. This seen in conjunction
D
with other evidence indicates that Tulsiram Prajapati was
the person who revealed the location of Sohrabuddin to
the accused police officers of Rajasthan and Gujarat.
55. The investigation has further disclosed that while
E lodged in Udaipur Jail, in addition to the above mentioned
prayers made by Tulsiram to the Human Rights
Commission, different courts, he explained the true fact
behind the fake encounter of Sohrabuddin to his jail inmate
friends. The police kept the telephone number being used
F by some of the criminals inside the jail and outside the jail
under interception and allegedly had received the
information that Tulsiram was trying to run away from the
custody. Both accused Shri. Dinesh MN (A-3) and IG,
Udaipur Shri Rajeev Daso! sent letters for permission to
G intercept the telephone numbers alleged having such
information. Thereafter, when Tulsiram Prajapati was
brought to Ahmedabad on 28.11.2006 along with co-
accused Mohd. Azam in connection with Case No. 1124/
2004 (Popular Builders Firing Case) in JM Court No. 13,
Ahmedabad, around 50 police commandoes were
H
AMITBHAI ANILCHANDRA SHAH v. CENTRAL 649
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.)
detailed for the escort party. On both these occasions, the A
mother, wife and daughter of Azam Khan accompanied
them from Udaipur to Ahmedabad and back. Later on the
police decided to kill Tulsiram and whereas on
subsequent hearing fixed for 26.12.2006, Shri Tulsiram
Prajapati was deliberately sent alone on 25.12.2006. His B
usual companion/co-accused Azam Khan was detained
in a scooter theft case. Interestingly, the above scooter
theft case registered in Ambamata PS of Udaipur
(Rajasthan) vide Case No. 95/2004 was already detected,
vehicle recovered and handed over to the complainant in c
2004 itself. Thus, foisting a case against Mohd. Azam and
sending Tulsiram Prajapati alone were to facilitate the
murder of Tulsiram Prajapati. It has also come into
evidence that this time before leaving Udaipur Jail on
25.12.2006, Tulsiram had expressed apprehension of his
0
being killed in an encounter. Contrary to the earlier two
occasions, this time only four police personnel were sent
from the jail as his escort. On the way back from
Ahmednagar to Udaipur, he was shown having run away
from the custody on the night intervening 26/27.12.2006.
Next day, he was killed in an alleged encounter. E
56. The investigation disclosed that the Udaipur Police
had sent letter No. 1120 dated 27.12.2006 to SP
Banaskantha, alleging that the call details of Tulsiram
show that he is hiding somewhere in Banaskantha. As per F
the documents received by the CBI from the office of IG,
Udaipur, this letter was sent through fax at around 2332
hours on 27.12.2006. As per the telephone call details
available, the phone was not used after the evening of
26.12.2006 so there was no reason for Udaipur Police to G
have information that Tulsiram was hiding somewhere in
Banaskantha. This letter was nothing but an attempt to
provide the Banaskantha police an opportunity to stage-
manage the encounter of Tulsiram Prajapati in their
district. Further, the available call details show that on H
650 SUPREME COURT REPORTS (2013] 6 S.C.R.
A 27.12.2006 accused Shri Dinesh M.N. (A-3) was constantly
in touch with other accused Rajkumar over telephone till
confirmation of this fax.
57. In the investigation conducted by the CBI, it has clearly
emerged that killing of Tulsiram Prajapati was an integral
B
part of the criminal conspiracy hatched by the accused
arising out the same transaction. After the abduction and
fake encounter of Sohrabuddin and Kausarbi, the
Supreme Court was seized of the matter, which had
directed the State of Gujarat to investigate in detail the
c above episode. During such inquiry ordered by Gujarat
Government in obedience to the Hon'ble Supreme Court,
it emerged that police officials of ATS, Ahmedabad were
involved in the abduction and killing of Sohrabuddin and
Kausarbi .....
D
59. When it became clear and evident that.. ...
(i) That Tulsiram Prajapati was the sole surviving witness
to the abduction of Sohrabuddin and his wife Kausarbi.
E (ii) That the Mobile Call Detail Records pertaining to the
case contained important piece of evidence not only
against accused Shri Amit Shah (A-16), Minister of State
(MoS), Government of Gujarat, but other police officers of
Gujarat and Rajasthan, who worked at his behest to cover
F up the fake encounter that killed Tulsiram Prajapati on
28.12.2006.
60. The analysis of Mobile Call Details for the week in
which the planning and execution of Tulsiram Prajapati's
G encounter took place, reflects furry of call exchanged by
accused Shri Amit Shah (A-16), MoS, accused Shri D.G.
Vanzara (A-1), DIG Border Range, accused Shri Rajkumar
Pandian (A-2), SP, ATS, Shri Vipul Agarwal, SP,
Banaskantha and accused Shri Dinesh MN (A-3), SP,
Udaipur, Rajasthan, suggesting a sinister plari to eliminate
H
AMITBHAI ANILCHANDRA SHAH v. CENTRAL 651
BUREAU OF INVESTIGATION [P. SATHASIVAM, J)
the sole witness in the state-executed Sohrabuddin A
encounter.
67. Thus, in view of the aforesaid provision, it is eminently
required in the interest of justice that the Tulsiram Prajapati
fake encounter case be investigated and tried along with
B
Sohrabuddin fake encounter case as the evidence
procured so far shows that Tulsiram Prajapati's encounter
took place as he was the prime witness to the
Sohrabuddin's abduction. As such both these cold
blooded murders are inter-connected, they ought not to be
tried separately as it may give rise to conflicting findings, C
raise issues of issue estoppels and/or res judicata and
end up derailing or frustrating the interest of justice."
26. As rightly pointed out, this was the stand of the CBI
prior to passing of the order in the decision dated 08.04.2011 D
in W.P. (Crl.) No. 115 of 2007. As a matter of fact, based on
the above assertion of the CBI, this Court, in the above matter,
entrusted the investigation of Tulsiram Prajapati's killing also
to the CBI. It is also not in dispute that the above extracted
status reports were part of record of proceedings in W.P. (Crl.) E
No. 115 of 2007.
27. Mr. Mahesh Jethamalani, learned senior coµnsel for
the petitioner-Amit Shah also brought to our notice that he was
arrested in the first FIR and chargesheet dated 23.07.2010 and
was further interrogated even on the question of alleged killing F
of Tulsiram Prajapati. It is also brought to our notice that when
the petitioner-Amit Shah filed regular bail application, the CBI
opposed the same contending that the alleged killing of
Tulsiram Prajapati as a part of the same series of acts, viz.,
. killing of Sohrabuddin and Kausarbi. The following objections G
were taken by the CBI while considering the bail application
which are as under:-
"The applicant took several steps by systematically
eliminating evidence of the murder of Sohrabuddin. One H
652 SUPREME COURT REPORTS [2013] 6 S, R.
A witness after the other were killed either surreptitiously
(Kausarbi) or another stage managed encounter (Tulsiram
Prajapati)
38. Learned senior counsel Mr. Tulsi submitted that the
ca:.t~ of the prosecution is that the applicant is part and
B
parcel of the larger conspiracy in the killing of Sohrabuddin,
his wife and Tulsiram Prajapati and also the conspiracy
with regard to extortion of money."
/:,11 tne above assertions by the CBI support the stand of
C the patitioner. !t is also relevant to note the stand taken by the
CBI and reliance placed on the same by this Court in the order
dated 08.04.2011 in W.P. (Crl.) No. 115 of 2007, i.e., Narmada
Bai (supra). The relevant excerpts are quoted verbatim
hereunder:-
D
"2(g) It is the further case of the petitioner that the deceased
being a key eye witness to the murder of Sohrabuddin and
his wife Kausarbi, the team of Mr. D.G. Vanzara and others
planned to do away with him to avoid his interrogation by
Ms. Geeta Johri, Inspector General of Police. Hence, the
E
petitioner has preferred this petition before this Court
praying for direction to CBI to register an FIR and
investigate the case.
(5) Stand of the CBI - respondent No.21:
F
(a) The investigation conducted in R.C. No. 4(8)/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
G
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 .....
H (c) The murder of Tulsiram Prajapati took place on
AMITBHAI ANILCHANDRA SHAH v. CENTRAL 653
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.]
28.12.2006, case was registered on 28.12.2006 and A
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 B
and tasks assigned by this Court to the CBI would be
accomplished both in letter and spirit towards the goal of
a fair trial, upholding the rule of law. If Tulsiram Prajapati's
fake encounter case is not transferred to the CBI for
investigation, it may lead to issue-estoppel or res judicata c
against prosecution.
13. As pointed out by the learned counsel for the petitioner
and the CBI, the said judgment records that there is strong
suspicion that the 'third person' picked up with Sohrabuddin
was Tulsiram Prajapati. D
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 E
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 F
conspiracy" regarding the Sohrabuddin's case which
despite being sought were not given by the State of
Gujarat.
15 vi) The CBI submitted two reports- Status Report No.1
on 30.07 .201 O and a week thereafter, they filed the G
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 H
654 SUPREME COURT REPORTS (2013) 6 S.C.R.
A Status Report No.1, filed by the CBI before the Bench on
30.07.2010 informed the Court that Tulsiram Prajapati was
abducted along with Sohrabuddin and Kausarbi and he
was handed over to the Rajasthan Police.
17. Inasmuch as the present writ petition is having a
B
bearing on the decision of the writ petiton filed by
Rubabbuddin Sheikh and also the claim of the petitioner,
the observations made therein, particularly, strong
suspicion about the 'third person' accompanied
Sohrabuddin, it is but proper to advert factual details,
c discussion and ultimate conclusion of this Court in
Rubabbuddin Sheikh's case.
In Writ Petition No. 6 of 2007, Rubabbuddin Sheikh prayed
for direction for investigation by the CBI into the alleged
D 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
E locate and abduct Sohrabuddin and his wife Kasurbi, and
was thus a material witness against the police personnel.
19. It is clear that the above judgment records that there
was a strong suspicion that the 'third person' picked up
with Sohrabuddin was Tulsiram Prajapati. It was also
F observed that the call records of Tulsiram were not
properly analyzed and there was no justification for the then
Investigation Officer - Ms. Geeta Johri to have walked out
of the investigation pertaining to Tulsiram Prajapati. The
Court had also directed the CBI to unearth "larger
G 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 the
Court.
H
AMITBHAI ANILCHANDRA SHAH v. CENTRAL 655
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.]
23. If we analyze the allegations of the State and other A
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 B
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 c
in one case but in other trial as well. It is further seen that
there is substantial material already on record which
makes it probable that the prime motive of elimination of
Tulsiram Prajapati was that he was a witness to abduction
of Sohrabuddin and Kausarbi.
D
37) .... .ln 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 E
investigation, accordingly, to meet the ends of justice and
in the public interest, we feel that the CBI should be
directed to take the investigation.
28. The findings rendered by us in Narmada Bai {supra) F
clearly show the acceptance of the contentions raised by the
CBI that killing of two individuals and killing of third person, viz.,
Tulsiram Prajapati were part of the very same conspiracy and
in the same series of acts so connected together that they will
have to be tried in one trial under Section 220 of the Code.
G
29. After the investigation of the second FIR, the CBI filed
chargesheet dated 04.09.2012 wherein, among others,
petitioner-Amit Shah was also arrayed as one of the accused.
By pointing out various averments/assertions in the
chargesheet dated 04.09.2012, learned senior counsel for the H
656 SUPREME COURT REPORTS [2013] 6 S.C.R.
A petitioner pointed out that the CBI has merely conducted further
investigation and it should be considered "supplementary
chargesheet in the first FIR." The following stand of the CBI in
the chargesheet dated 04.09.2012 are also relevant which are
as under:-
B
"2 ....The investigation established that it was in furtherance
of a criminal conspiracy by the principal accused persons
that Sohrabuddin was abducted and then murdered by
showing it off as an encounter and further for the purpose
of screening themselves from the legal consequences of
c their crime, the accused caused the disappearance of
material witnesses to the pivotal fact of abduction of
Sohrabuddin by murdering them, first his wife, Kauserbi
and then Tulsiram Prajapati who was accompanying
Sohrabuddin and his wife Kausarbi at the time they were
D abducted, and, who had in fact facilitated his abduction at
the behest of accused D.G. Vanzara (A-2) .....
4. Investigation of RC 4(S)/2010/SCB/Mumbai disclosed
that the third person who was abducted along with
E Sohrabuddin and Kausarbi was Tulsiram Prajapati. The
investigation further disclosed that he was a material
witness/eye-witness to the abduction of Sohrabuddin and
his wife and the same was within the knowledge of
accused Amit Shah (A~1), D.G. Vanzara (A-2), S. Pandian
Rajkumar (A-3) and Dinesh M.N. (A-4) and others.
F
6.4 ... .In the meantime, in accordance with his clandestine
agreement with Gujarat Police, Tulsiram Prajapati
informed them in advance about the plan of Sohrabuddin
to travel to Sangli from Hyderabad.
G
6.8 In pursuance of the criminal conspiracy to screen
themselves from the legal consequences of the crime, the
accused acted in concert with each other to keep Tulsiram
Prajapati, a significant material eye witness to the
H abduction of Sohrabuddin and Kausarbi by the accused
AMITBHAI ANILCHANDRA SHAH v. CENTRAL 657
BUREAU OF INVESTIGATION [P. SATHAS1VAM, J.]
policemen of Gujarat police under their continuing control A
and beyond the reach of others. Accordingly, Dinesh M.N.
(A-4), the then SP Udaipur, who had also participated in
the murder of Sohrabuddin on 26.11.2005, ensured by
directing Rajasthan Police to detain Tulsiram Prajapati on
the very same day i.e., 26.11.2005 for achieving the B
common object of keeping Tulsiram Prajapati under their
control.
6.13 On 08.02.2006, Tulsiram Prajapati was brought from
Central Jail, Udaipur to Ujjain, Madhya Pradesh. When he
met Narmada Bai and Pawan Kumar Prajapati, he told · C
them that he was under severe stress because he
apprehended that the Gujarat and Rajasthan Police would
kill him in a false encounter. He also confessed to them
that Gujarat Police had used him for tracing and abducting
Sohrabuddin and his wife. He had also expressed his · D
apprehension that the police would kill him because he
was a witness to the abduction of Sohrabuddin and his wife
Kausarbi.
6.26 ..... With the object of shielding themselves from the E
grave implications of abduction and murder of
Sohrabuddin and his wife Kausarbi, the accused
expedited the pace of their criminal conspiracy as
aforesaid to abduct and murder Tulsiram Prajapati as
soon as possible. F
6.34 ..... during the relevant period to show that they were
acting in concert with each other in furtherance of the
criminal conspiracy as aforesaid to murder Tulsiram
Prajapati who was no longer under their control and further
with the efforts being made by Inspector V.L. Solanki to G
examine him and record his statement with regard to the
abduction of Sohrabuddin were anxious to expedite the
criminal conspiracy towards its culmination point." -' ": -
l
6.51 ....This establishes the fact that the country made H
658 SUPREME COURT REPORTS [2013] 6 S.C.R.
A weapon was planted to cover up the murder of Tulsiram
Prajapati in pursuance of a criminal conspiracy spanning
more than a year and to show it as the result of a shootouV
an encounter.
6.54 .... .for participating in the criminal conspiracy as
B
aforesaid and taking it towards its culmination point by
murdering Tulsiram Prajapati. ....
6.62 ..... by so doing had intentionally provided the requisite
time needed by the co-accused to take the necessary
c efforts to cause disappearance of human witness Tulsiram
Prajapati to their crime of abduction of Sohrabuddin and
his wife precedent to their murders by murdering him as
well and thereby had facilitated the criminal conspiracy
towards its culmination point.. ...
D
6.69 ..... Besides this, accused Geetha Johri (A-18), in
furtherance of a criminal conspiracy as aforesaid made all
attempts to delink Tulsiram Prajapati case from the
~ohrabuddin fake encounter case to establish that the third
person who traveled with Sohrabuddin and Kausarbi in the
E
bus in the night of 22/23.11.2005 and was abducted was
somebody else and not Tulsiram Prajapati himself. She
projected that the third person who was abducted along
with Sohrabuddin and his wife Kauserbi was one
Kalimuddin of Hyderabad in spite of the fact that she had
F knowledge that the third person was Tulsiram Prajapati as
made know to her by her Investigating Officer V.L.
Solanki. ... ."
30. The above details mentioned in the chargesheet dated
G 04.09.2012 clearly show that what the CBI has conducted is
mere 'further investigation' and the alleged killing of Tulsiram
Prajapati was in continuance of and an inseparable part of the
conspiracy which commenced in November, 2005 by abduction
of Sohrabuddin, Kausarbi and Tulsiram Prajapati and which
H culminated into the final stage of alleged killing of Tulsiram
AMITBHAI ANILCHANDRA SHAH v. CENTRAL 659
BUREAU OF INVESTIGATION [P. SATHASIVAM, Ji
'
Prajapati who was kept under ttie control of accused police A
officers since he was a material eye-witness like Kausarbi. To
put it straight, apart from the consistent stand of the CBI, the
chargesheet dated 04.09.2012 itself is conclusive to show that
the said chargesheet, in law and on facts, deserves to be
treated as 'supplementary chargesheet in the first FIR'. B
Legal aspects as to permissibility/impermissibility of
second FIR:
31. Now, let us consider the legal aspects raised by the
petitioner-Amit Shah as well as the CBI. The factual details C
which we have discussed in the earlier paragraphs show that
right from the inception of entrustment of investigation to the CBI
by order dated 12.01.2010 till filing of the charge sheet dated
04.09.2012, this Court has also treated the alleged fake
encounter of Tulsiram Prajapati to be an outcome of one single D
conspiracy alleged to have been hatched in November, 2005
which ultimately culminated in 2006. In such circumstances, the
filing of the second FIR and a fresh charge sheet for the same
is contrary to the provisions of the Code suggesting that the
petitioner was not being investigated, prosecuted and tried 'in E
accordance with law' .
32. This Court has consistently laid down the law on the
issue interpreting the Code, that a second FIR in respect of an
offence or different offences committed in the course of the
F
same transaction is not only impermissible but it violates Article
21 of the Constitution. In T. T. Anthony (supra), this Court has
categorically held that registration of second FIR (which is not
a cross case) is violative of Article 21 of the Constitution. The
following conclusion in paragraph Nos. 19, 20 and 27 of that
judgment are relevant which read as under: G
"19. The scheme of CrPC is that an officer in charge of a
police station has to commence investigation as provided
in Section 156 or 157 CrPC on the basis of entry of the
first information report, on coming to know of the H
660 SUPREME COURT REPORTS [2013] 6 S.C.R.
A commission of a cognizable offence. On completion of
investigation and on the basis of the evidence collected,
he has to form an opinion under Section 169 or 170 CrPC,
as the case may be, and forward his report to the
Magistrate concerned under Section 173(2) CrPC.
B However. even after filing such a report, if he comes into
possession of further information or material, he need not
register a fresh FIR; he is empowered to make further
investigation, normally with the leave of the court, and
where during further investigation he collects further
c evidence, oral or documentary, he is obliged to forward the
same with one or more further reports; this is the import
of sub-section (8) of Section 173 CrPC.
20. From the above discussion it follows that under the
scheme of the provisions of Sections 154, 155, 156, 157,
D 162, 169, 170 and 173 CrPC only the earliest or the first
information in regard to the commission of a cognizable
offence satisfies the requirements of Section 154 CrPC.
Thus there can be no second FIR and consequently there
can be no fresh investigation on receipt of every
E subsequent information in respect of the same cognizable
offence or the same occurrence or incident giving rise to
one or more cognizable offences. On receipt of information
about a cognizable offence or an incident giving rise to a
cognizable offence or offences and on entering the FIR in
F the station house diary, the officer in charge of a police
station has to investigate not merely the cognizable
offence reported in the FIR but also other connected
offences found to have been committed in the course of
the same transaction or the same occurrence and file one
G or more reports as provided in Section 173 CrPC.
27. A just balance between the fundamental rights of the
citizens under Articles 19 and 21 of the Constitution and
the expansive power of the police to investigate a
cognizable offence has to be struck by the court. There
H
AMITBHAI ANILCHANDRA SHAH v. CENTRAL 661
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.]
cannot be any controversy that sub-section (8) of Section A
173 CrPC empowers the police to make further
investigation, obtain further evidence (both oral and
documentary) and forward a further report or reports to the
Magistrate. In Narang case it was, however, observed that
it would be appropriate to conduct further investigation with B
the permission of the court. However, the sweeping power
of investigation does not warrant subjecting a citizen each
time to fresh investigation by the police in respect of the
same incident, giving rise to one or more cognizable
offences, consequent upon filing of successive FIRs c
whether before or after filing the final report under Section
173(2) CrPC. It would clearly be beyond the purview of
Sections 154 and 156 CrPC, nay, a case of abuse of the
statutory power of investigation in a given case. In our view
a ca~e of fresh investigation based on the second or
0
successive FIRs, not being a counter-case, filed in
connection with the same or connected cognizable offence
alleged to have been committed in the course of the same
transaction and in respect of which pursuant to the first FIR
either investigation is under way or final report under
Section 173(2) has been forwarded to the Magistrate, may E
be a fit case for exercise of power under Section 482
CrPC or under Articles 226/227 of the Constitution."
The above referred declaration of law by this Court has never
been diluted in any subsequent judicial pronouncements even F
while carving out exceptions.
33. Mr. Rawal, learned ASG, by referring T. T. Anthony
(supra) submitted that the said principles are not applicable
and relevant to the facts and circumstances of this case as the G
said judgment laid down the ratio that there cannot be two Fl Rs
relating to the same offence or occurrence. Learned ASG further
pointed out that in the present case, there are two distinct
incidents/occurrences, inasmuch as one being the conspiracy
relating to the murder of Sohrabuddin with the help of Tulsiram
H
662 SUPREME COURT REPORTS [2013] 6 S.C.R.
A Prajapati and the other being the conspiracy to murder Tulsiram
Prajapati - a potential witness to the earlier conspiracy to
murder Sohrabuddin. We are unable to accept the claim of the
learned ASG. As a matter of fact, the aforesaid proposition of
law making registration of fresh FIR impermissible and violative
B of Article 21 of the Constitution is reiterated, re-affirmed in the
following subsequent decisions of this Court:
1. Upkar Singh vs. Ved Prakash (2004) 13 SCC 292
2. Babubhai vs. State of Gujarat & Ors. (2010) 12
c sec 254
3. Chirra Shivraj vs. State of A.P. AIR 2011 SC 604
4. C. Muniappan vs. State of Tamil Nadu (2010) 9
sec 567.
D
In C. Muniappan (supra), this Court explained
"consequence test", i.e .. if an offence forming part of the second
FIR arises as a consequence of the offence alleged in the first
FIR then offences covered by both the FIRs are the same and,
E accordingly, the second FIR will be impermissible in law. In
other words, the offences covered in both the Fl Rs shall have
to be treated as a part of the first FIR. In the case on hand, in
view of the principles laid down in the above referred
decisions, in particular, C. Muniappan (supra) as well as in
F Chirra Shivraj (supra), apply with full force since according to
the CBI itself it is the case where:-
(i) The larger conspiracy allegedly commenced in
November, 2005 and culminated into the murder of
Tulsiram Prajapati in December, 2006 in a fake
G encounter;
(ii) The alleged fake encounter of Tulsiram Prajapati
was a consequence of earlier false encounter of
Sohrabuddin and Kausarbi since Tulsiram
H
AMITBHAI ANILCHANDRA SHAH v. CENTRAL 663
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.]
Prajapati was an eye witness to the abduction and A
consequent murders of Sohrabuddin and Kausarbi;
and
(iii) Tulsiram Prajapati was allegedly kept under the
control of accused police officers, as a part of the B
same conspiracy, till the time he was allegedly
killed in a fake encounter.
In view of the factual situation as projected by the CBI itself,
the ratio laid down by this Court in C. Muniappan (supra), viz.,
merely because two separate complaints had been lodged did C
not mean that they could not be clubbed together and one
chargesheet could not be filed [See T.T. Anthony (supra)].
34. In view of the consistent stand taken by the CBI, at this
juncture, CBI may not be permitted to adopt a contradictory 0
stand.
35. Learned counsel for the petitioner has placed reliance
on the following decisions of this Court which explained "same
transaction":
E
(i) Babula/ vs. Emperor, AIR 1938 PC 130
(ii) S. Swamirathnam vs. State of Madras, AIR 1957
SC 340
(iii) State of A.P. vs. Kandimalla Subbaiah & Anr., AIR F
1961 SC 1241
(iv) State of A.P. vs. Cheemalapati Ganeswara Rao
& Anr., AIR 1963 SC 1850
G
36. In Babula/ (supra), the Privy Council has held that if
several persons conspire to commit offences, and commit overt
acts in pursuance of the conspiracy (a circumstance which
makes the act of one the act of each and all the conspirators),
these acts are committed in the course of the same transaction,
which embraces the conspiracy and the acts done under ii. The H
664 SUPREME COURT REPORTS (2013] 6 S.C.R.
A common concert and agreement which constitute the
conspiracy, serve to unify the acts done in pursuance of it.
37. In Swamirathnam (supra), the following conclusion in
para 7 is relevant:
B "7. On behalf of the appellant Abu Bucker it was contended
that there has been misjoinder of charges on the ground
that several conspiracies, distinct from each other, had
been lumped together and tried at one trial. The Advocate
for Swamirathnam, however, did not put forward this
c submission. We have examined the charge carefully and
find no ground for accepting th~ contention raised. The
charge as framed, discloses one single conspiracy,
although spread over several years. There was only one
object of the conspiracy and that was to cheat members
D of the public. The fact that in the course of years others
joined the conspiracy or that several incidents of cheating
took place in pursuance of the conspiracy did not change
the conspiracy and did not split up a single conspiracy into
several conspiracies. It was suggested that although the
E modus operandi may have been the same, the several
instances of cheating were not part of the same
transaction. Reliance was placed on the cast of Sharpurji
Sorabji v. Emperor, AIR 1936 Born 154 (A) and on the
cast of Choragudi Venkatadari, In re. ILR 33 Mad 502 (B).
F These cases are not in point. In the Bombay case, no
charge of conspiracy had been framed and the decision
in the Madras case was given before Section 120-B was
introduced into the Indian Penal Code. In the present case,
the instances of cheating were in pursuance of the
conspiracy and were therefore parts of the same
G
transaction."
38. In Kandima/Ja Subbaiah (supra), this Court held where
the alleged offence have been committed in the course of the
same transaction, the limitation placed by Section 234(1)
H cannot operate.
AMITBHAI ANILCHANDRA SHAH v. CENTRAL 665
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.]
39. In Cheemalapati Ganeswara Rao (supra), while A
considering the scope of Section 239 of the old Code (Section
220 in the new Code), this Court held:
"28. The decision of the Allahabad High Court in T.B.
Mukherji case directly in point and is clearly to the effect that B
the different clauses of Section 239 are mutually exclusive in
the sense that it is not possible to combine the provisions of
two or more clauses in any one case and to try jointly several
persons partly by applying the provisions of one clause and
partly by applying those of another or other clauses. A large C
number of decisions of the different High Courts and one of the
Privy Council have been considered in this case. No doubt, as
has been rightly pointed out in this case, separate trial is the
normal rule and joint trial is an exception. But while this principle
is easy to appreciate and follow where one person alone is the
accused and the interaction or intervention of the acts of more D
persons than one does not come in, it would where the same
act is committed by several persons, be not only inconvenient
but injudicious to try all the several parsons separately. This
would lead to unnecessary multiplicity of trials involving
avoidable inconvenience to the witnesses and avoidable E
expenditure of public time and money. No corresponding
advantage can be gained by the accused persons by following
the procedure of separte trials. Where, however, several
offences are alleged to have been committed by several
accused persons it may be more reasonable to follow the F
normal rule of separate trials. But here, again, if those offences
are alleged not to be wholly unconnected but as forming part
of the same transaction the only consideration that will justify
separate trials would be the embarrassment or difficulty caused
to the accused persons in defending themselves. We entirely G
agree with the High Court that joint trial should be founded on
some "principle". ... . ,
- ·- ''
40. Learned ASG .placed reliance <?." the following
decisions: ..
'. !··
H
666 SUPREME COURT REPORTS (2013] 6 S.C.R.
A (i) Anju Chaudhary vs. State of U.P. & Anr., 2012(12)
Scale 619
(ii) Babubhai vs. State of Gujarat (2010) 12 SCC 254
(iii) Surender Kaushik & Ors. vs. State of U.P. & Ors.,
B JT 2013 (3) SC 472
(iv) Nirmal Singh Kah/on vs. State of Punjab (2009)
1 sec 441
(v) Ram Lal Narang vs. State (Delhi Admn.), (1979)
c 2 sec 322
(vi) Upkar Singh vs. Ved Prakash & Ors. (2004) 13
sec 292
o (vii) Kari Choudhary vs. Mst. Sita Devi & Ors. (2002)
1 sec 714.
41. In Anju Chaudhary (supra) this Court was concerned
with a case in which the second FIR was not connected with
E the offence alleged in the first FIR. After carefully analyzing the
same, we are of the view that it has no relevance to the facts
of the present case.
42. In the case of Babubhai (supra), the very same Bench
considered the permissibility of more than one FIR and the test
F of sameness. After explaining FIR under Section 154 of the
Code, commencement of the investigation. formation of opinion
under Sections 169 or 170 of the Code, police report under
Section 173 of the Code and statements under Section 162
of the Code, this Court, has held that the Court has to examine
G the facts and circumstances giving rise to both the FIRs and
the test of sameness is to applied to find out whether both the
FIRs relate to the same incident in respect of the same
occurrence or are in regard to the incidents having two or more
parts of the same transaction. This Court further held that if the
H answer is in affirmative, the second FIR is liable to be quashed.
I
AMITBHAI ANILCHANDRA SHAH v. CENTRAL 667
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.]
It was further held that in case the contrary is proved, where the A
version in the second FIR is different and is in respect of the
two different incidents/crimes, the second FIR is permissible.
This Court further explained that in case in respect of the same
incident the accused in the first FIR comes forward with a
different version or counterclaim, investigation on both the Fl Rs B
has to be conducted. It is clear from the decision that if two Fl Rs
pertain to two different incidents/crimes, second FIR is
permissible. In the light of the factual position in the case on
hand, the ratio in that decision is not helpful to the case of the
CBI. C
43. The CBI has also placed reliance on a recent decision
of this Court in Surender Kaushik (supra). A careful perusal of
the facts which arose in the said case would disclose that three
FIRs which formed the subject matter of the said case were
registered by three different complainants. Two of the FIRs D
consisted of cross cases inasmuch as the complainant of the
first FIR was accused in the other while the accused in the first
FIR was the complainant in the second FIR. The third FIR was
filed by a third person citing both the complainants of first two
FIRs as .accused persons. In view of the above peculiar facts E
situation arising in the said case that the second and third Fl Rs
were not quashed by the High Court, which decision was upheld
by this Court, we are satisfied that the said decision has no
relevance to the facts of the present case.
F
44. In the case of Nirmal Singh Kah/on (supra), this Court
has carved out an exception for filing a second FIR. As per the
exception carved out in the said case, the second FIR lies in a
case where the first FIR does not contain any allegations of
criminal conspiracy. On the other hand, in the case on hand, G
the first FIR itself discloses an offence of alleged criminal
conspiracy and it was this conspiracy which the CBI was
directed to unearth in the judgment dated 12.01.2010 based
on which the CBI filed its first FIR, hence, the CBI cannot place
relfance on this judgment to justify the filing of the second FIR
and a fresh charge sheet. H
668 SUPREME COURT REPORTS [2013] 6 S.C.R ..
A 45. Ram Lal Narang (supra) was cited to be an authority
carving out an exception to the general rule that there cannot
be a second FIR in respect of the same offence. This Court, in
the said decision, held that a second FIR would lie in an event
when pursuant to the investigation in the first FIR, a larger
B conspiracy is disclosed, which was not part of the first FIR. In
the case on hand, while entrusting the investigation of the case
relating to the killing of Sohrabuddin and Kausarbi to the CBI,
this Court, by order dated 12.01.2010, expressed a suspicion
that Tulsiram Prajapati could have been killed because he was
C an eye witness to the killings of Sohrabuddin and Kausarbi.
46. The CBI also filed an FIR on 01.02.2010 based upon
the aforesaid judgment dated 12.01.201 O and conducted the
investigation reaching to a conclusion that conspiracy to kill
Sohrabuddin and Kausarbi and conspiracy to kill Tulsiram
D Prajapati were part of the same transaction inasmuch as both
these conspiracies were entered into from the very outset in
November, 2005. Based upon its investigation, the CBI filed a
status report (s) before this Court and an affidavit in Writ
Petition (Crl.) No. 115 of 2007 bringing to the notice of this
E Court that killing of Tulsiram Prajapati was also a part of the
same transaction and very same conspiracy in which killings
of Sohrabuddin and Kausarbi took place and unless the CBI
is entrusted with the investigation of Tulsiram case, it will not
be able to unearth the larger conspiracy covered in the first FIR.
F The fact that even as per the CBI, the scope of conspiracy
included alleged killing of Sohrabuddin and Kausarbi and
alleged offence of killing of Tulsiram Prajapati and the same
is unequivocally established by the order passed by this Court
on 12.08.2010 in Writ Petition (Crl.) No. 6 of 2007 which is
G fortified by the status report dated 11.11.2011 filed by the CBI
has already been extracted in paragraphs supra.
47. In the light of the factual details, since the entire larger
conspiracy is covered in the first FIR dated 01.02.2010 and in
the investigation of the said FIR, the CBI, after investigating
H
r
AMITBHAI ANILCHANDRA SHAH v. CENTRAL 669
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.]
Tulsiram Prajapati's encounter recorded a finding in A
supplementary charge sheet dated 22.10.201 O filed in the
killings of Sohrabuddin and Kausarbi case that the said
encounter was a fake one·, we are satisfied that the decision
in Ram/al Narang (supra) would not apply to the facts of the
case on hand. Even otherwise, as pointed out by learned senior B
counsel for the petitioner, in Ram/al Narang (supra), the
chargesheet filed pursuant to the first FIR was withdrawn which
was a fact which weighed with this Court while delivering the
judgment in the second case.
48. Upkar Singh {supra) also carves out a second C
exception to the rule prohibiting lodging of second FIR for the
same offence or different offences committed in the course of
the transaction disclosed in the first FIR The only exception to
the law declared in T. T. Anthony (supra), which is carved out
in Upkar Singh (supra) is to the effect that when the second D
FIR consists of alleged offences which are in the nature of the
cross case/cross complaint or a counter complaint, such cross
complaint would not be permitted as second FIR In the case
on hand, it is not the case of the CBI that the FIR in Tulsiram
Prajapati's case is a cross FIR or a counter complaint to the E
FIR filed in Sohrabuddin and Kausarbi's case being FIR dated
01.02.2010.
49. The ratio laid down in Kari Choudhary's case (supra)
is heavily relied on by learned ASG appearing for the CBI. In
F
· that decision, it was held that when there are two rival versions
in respect of the same episode, they would normally take the
shape of two different FIRs and investigation can be carried
on under both of them by the same investigating agency. While
there is no quarrel as to the above proposition, after carefully
considering the factual position, we are of the view that the said G
decision is not helpful to the case on hand.
Maintainability of writ petition under Article 32:
50. Regarding the maintainability, namely, filing a writ H
670 SUPREME COURT REPORTS (2013) 6 S.C.R.
A petition under Article 32 of the Constitution of India, learned
ASG submitted that it is only on complete examination and
appreciation of facts, materials and evidence that it can be
decided as to whether these distinct conspiracies form part of
the same transaction in view of the law laid down by this Court.
B He further pointed out that the CBI which is the investigating
agency, after a full fledged investigation, came to a conclusion
that the conspiracy to eliminate Tulsiram Prajapati was a
distinct and separate offence, accordingly, such disputed
questions of fact are not and ought not to be decided in a writ
C petition under Article 32. He also pointed out that apart from
the fact that there are sufficient remedies to raise such a plea
under the Code before a court of competent jurisdiction, such
disputed questions of fact can only be adjudicated after carefully
examining and appreciating the evidence led in. It is also
pointed out that there is no question of any prejudice suffered
D on account of prayer of the petitioner since if the offences are
distinct and separate which is so emerging from the present
case, there can neither be joint trial nor could the charge sheet
filed in the present case be treated as supplementary charge
sheet. As a concluding argument, Mr. Rawal, learned ASG
E submitted that this Court in exercise of its jurisdiction under
Article 32 may not like to adjudicate such disputed questions
of fact which require evidence to be led and its appreciation.
51. As against this, Mr. Mahesh Jethmalani, learned senior
F counsel for the petitioner submitted that the CBI is not faced
with any prejudice which is to be caused to it, if the relief as
prayed for by the petitioner is granted. Admittedly, the petitioner
is not praying for quashing of the charge sheet dated
04.09.2012. During the course of argument, when this Court
G specifically put a question to learned ASG appearing for the
CBI as to what prejudice would be caused to the CBI if instead
of treating the charge sheet dated 04.09.2012 to be fresh and
independent charge sheet, the same will be treated as a
supplementary charge sheet in the first charge sheet, there was
H no definite answer as to what prejudice would be caused to the
' AMITBHAI ANILCHANDRA SHAH v. CENTRAL
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.]
671
CBI. For the sake of repetition, it is relevant to mention that in A
our order dated 08.04.2011 in Narmada Bai (supra), while
disposing of the said writ petition, this Court directed the CBI
to take up the investigation as prayed accepting their contention
that killing of Tulsiram Prajapati is a part of the same series of
acts in which Sohrabuddin and Kausarbi were killed and, B
therefore, Tulsiram Prajapati encounter should also be
investigated by the CBI. Accepting the above assertion of the
CBI, this Court directed to complete the investigation within six
months.
Summary:
c
52. a) This Court accepting the plea of the CBI in
Narmada Bai (supra) that killing of Tulsiram Prajapati is part
of the same series of cognizable offence forming part of the
first FIR directed the CBI to "take over" the investigation and D
did not grant the relief prayed-for i.e., registration of a fresh FIR.
Accordingly, filing of a fresh FIR by the CBI is contrary to
various decisions of this Court.
(b) The various provisions of the Code of Criminal E
Procedure clearly show that an officer-in-charge of a police
station has to commence investigation as provided in Section
156 or 157 of the Code on the basis of entry of the First
Information Report, on coming to know of the commission of
cognizable offence. On completion of investigation and on the F
basis of evidence collected, Investigating Officer has to form
an opinion under Section 169 or 170 of the Code and forward
his report to the concerned Magistrate under Section 173(2)
of the Code.
(c) Even after filing of such a report, if he comes into G
possession of further information or material, there is no need
to register a fresh FIR, he is empowered to make further
investigation normally with the leave of the Court and where
during further investigation, he collects further evidence, oral or
documentar,Y. he is obliged to forward the same with one or H
672 SUPREME COURT REPORTS [2013] 6 S.C.R.
A more further reports which is evident from sub-section (8) of
Section 173 of the Code. Under the scheme of the provisions
of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of the
Code, only the earliest or the first information in regard to the
commission of a cognizable offence satisfies the requirements
B of Section 154 of the Code. Thus, there can be no second FIR
and, consequently, there can be no fresh investigation on
receipt of every subsequent information in respect of the same
cognizable offence or the same occurrence or incident giving
rise to one or more cognizable offences.
c
(d) Further, on receipt of information about a cognizable
offence or an incident giving rise to a cognizable offence or
offences and on entering FIR in the Station House Diary, the
officer-in-charge of the police station has to investigate not
merely the cognizable offence reported in the FIR but also other
0
connected offences found to have been committed in the
course of the same transaction or the same occurrence and
file one or more reports as provided in Section 173 of the
Code. Sub-section (8) of Section 173 of the Code empowers
the police to make further investigation, obtain further evidence
E (both oral and documentary) and forward a further report (s) to
the Magistrate. A case of fresh investigation based on the
second or successive FIRs not being a counter case, filed in
connection with the same or connected cognizable offence
alleged to have been committed in the course of the same
F transaction and in respect of which pursuant to the first FIR
either investigation is underway or final report under Section
173(2) has been forwarded to the Magistrate, is liable to be
interfered with by the High Court by exercise of power under
Section 482 of the Code or under Articles 226/227 of the
G Constitution.
(e) First Information Report is a report which gives first
information with regard to any offence. There cannot be second
l=IR in respect of the same offence/event because whenever
H
' AMITBHAI ANILCHANDRA SHAH v. CENTRAL
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.)
673
any further information is received by the investigating agency, A
it is always in furtherance of the first FIR
(f) In the case on hand, as explained in the earlier paras,
in our opinion, the second FIR was nothing but a consequence
of the event which had taken place on 25/26.11.2005. We have B
already concluded that this Court having reposed faith in the
CBI accepted their contention that Tulsiram Prajapati encounter
is a part of the same chain of events in which Sohrabuddin and
Kausarbi were killed and directed the CBI to "take up" the
investigation.
c
(g) For vivid understanding, let us consider a situation in
which, Mr. 'A' hci.ving killed 'B' with the aid of 'C', informs the
police that unknown persons killed 'B'. During investigation, it
revealed that 'A' was the real culprit and 'D' abetted 'A' to
commit the murder. As a result, the police officer files the D
charge sheet under Section 173(2) of the Code with the
Magistrate. Although, in due course, it was discovered through
further investigation that the person who abetted Mr. 'A' was
'C' and not 'D' as mentioned in the charge sheet filed under
Section 173 of the Code. In such a scenario, uncovering of the E
later fact that 'C' is the real abettor will not demand a second
FIR rather a supplementary charge sheet under section 173(8)
of the Code will serve the purpose.
(h) Likewise, in the case on hand, initially the CBI took a
F
stand that the third person accompanying Sohrabbuddin and
Kausarbi was Kalimuddin. However, with the aid of further
investigation, it unveiled that the third person was Tulsiram
Prajapati. Therefore, only as a result of further investigation, the
CBI has gathered the information that the third person was
Tulsiram Prajapati. Thus a second FIR in the given facts and G
circumstances is unwarranted; instead filing of a supplementary
charge sheet in this regard will suffice the issue.
(i) Administering criminal justice is a two-end process,
where guarding the ensured rights of the accused under H
674 SUPREME COURT REPORTS [2013] 6 S.C.R.
A Constitution is as imperative as ensuring justice to the victim.
It is definitely a daunting task but equally a compelling
responsibility vested on the court of law to protect and shield
the rights of both. Thus, a just balance between the fundamental
rights of the accused guaranteed under the Constitution and the
B expansive power of the police to investigate a cognizable
offence has to be struck by the court Accordingly, the sweeping
power of investigation does not warrant subjecting a citizen
each time to fresh investigation by the police in respect of the
same incident, giving rise to one or more cognizable offences.
c As a consequence, in our view this is a fit case for quashing
the second F.l.R to meet the ends of justice.
Q) The investigating officers are the kingpins in the criminal
justice system. Their reliable investigation is the leading step
towards affirming complete justice to the victims of the case.
D Hence they are bestowed with dual duties i.e. to investigate the
matter exhaustively and subsequently collect reliable evidences
to establish the same.
Conclusion:
E
53. In the light of the specific stand taken by the CBI before
this Court in the earlier proceedings by way of assertion in the
form of counter affidavit, status reports, etc. we are of the view
that filing of the second FIR and fresh charge sheet is violative
F of fundamental rights under Article 14, 20 and 21 of the
Constitution since the same relate to alleged offence in respect
of which an FIR had already been filed and the court has taken
cognizance. This Court categorically accepted the CBl's plea
that killing of Tulsiram Prajapati is a part of the same series of
cognizable offence forming part of the first FIR and in spite of
G the fact that this Court directed the CBI to •take over" the.
investigation and did not grant the relief as prayed, namely,
registration of fresh FIR, the present action of CBI filing fresh
FIR is contrary to various judicial pronouncements which is
demonstrated in the earlier part of our judgment.
H
AMITBHAI ANILCHANDRA SHAH v. CENTRAL 675
BUREAU OF INVESTIGATION [P. SATHASIVAM, J.]
54. In view of the above discussion and conclusion, the A
second FIR dated 29.04.2011 being RC No. 3(8)/2011/
Mumbai filed by the CBI is contrary to the directions issued in
judgment and order dated 08.04.2011 by this Court in Writ
Petition (Criminal) No. 115 of 2009 and accordingly the same
is quashed. As a consequence, the charge sheet filed on B
04.09.2012, in pursuance of the second FIR, be treated as a
supplementary charge sheet in the first FIR. It is made clear that
iNe have not gone into the merits of the claim of both the parties
and it is for the trial Court to decide the same in accordance
with law. Consequently, Writ Petition (Criminal) No. 149 of 2012 c
is allowed. Since the said relief is applicable to all the persons
arrayed as accused in the second FIR, no further direction is
required in Writ Petition (Criminal) No. 5 of 2013.
KKT. Writ Petition allowed.
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