Supreme Court of India
HIMANSHU KUMAR AND OTHERSversusSTATE OF CHHATTISGARH AND OTHERS
- Citation
- 2022 INSC 720
- Decided
- 14 July 2022
- Disposal
- Dismissed
- Bench
- A M KHANWILKAR
Holding
No case was made out for further investigation or transfer to the CBI, and the writ petition was dismissed with exemplary costs.
Summary
The petitioners, led by Himanshu Kumar, alleged that police, Special Police Officers, Salwa Judum activists and paramilitary forces carried out brutal massacres of tribals in three Chhattisgarh villages in September and October 2009 and sought a mandamus directing the CBI to investigate and compensation for the victims. The State of Chhattisgarh countered that the incidents were Naxalite attacks, that the FIRs had already been investigated, charge‑sheets filed and the accused were absconding, and that there was no basis for a CBI probe. The Supreme Court examined whether the extraordinary power under Articles 32 and 226 to order a CBI investigation could be exercised, applying the settled principle that such power is to be used only in rare, exceptional circumstances where the existing investigation is demonstrably defective. Finding that the investigations were completed, charge‑sheets filed, and no material pointed to police or paramilitary culpability, the Court held that no case existed for further or independent investigation. Consequently, the writ petition was dismissed with exemplary costs, and the Union of India’s interlocutory application for perjury proceedings against the petitioners was allowed.
Issues considered
- The petitioners' claim that the existing investigations were inadequate and that a CBI investigation was necessary.
- Whether the Supreme Court can, under Articles 32/226, direct the CBI to take over an investigation in the absence of a demonstrable failure of the state investigating agency.
- The applicability of perjury provisions (Sections 191, 192, 193 IPC) to the petitioners' allegations.
Legislation cited
- Arms Act, 1959s. 25, s. 27
- Code of Criminal Procedure, 1973s. 195, s. 340
- Constitution of Indias. Article 226, s. Article 32
- Indian Penal Code, 1860s. 191, s. 192, s. 193, s. 211
Subjects
CBI investigationmandamusperjuryNaxalismSalwa JudumArticle 32Article 226Criminal Procedure Codefalse chargetransfer of investigation
Judgment
724 [2022]REPORTS
SUPREME COURT 11 S.C.R. 724 [2022] 11 S.C.R.
A HIMANSHU KUMAR AND OTHERS
v.
STATE OF CHHATTISGARH AND OTHERS
(Writ Petition (Criminal) No.103 of 2009)
B JULY 14, 2022
[A. M. KHANWILKAR AND J. B. PARDIWALA, JJ.]
Criminal Law – Constitution of India – Article 32 – Petition
seeking mandamus for re-investigation / further investigation – Two
incidents of alleged brutal massacre of tribals in three villages in
C
the State of Chhattisgarh – Case of the writ petitioners that the
Chhattisgarh Police, Special Police Officers (SPOs), the activists
of Salwa Judum (group of vigilantes sponsored by the Chhattisgarh
Government) and the Paramilitary Forces consisting of the CRPF
and the CoBRA Battalions were responsible for the alleged massacre
D – Whether any case was made out by the writ petitioners for
investigation of the two incidents through the Central Bureau of
Investigation (CBI) – Held: The extraordinary power of the
Constitutional Courts under Articles 32 and 226 respectively of the
Constitution qua the issuance of directions to the CBI to conduct
investigation must be exercised with great caution – The contextual
E
facts and the attendant circumstances have to be singularly evaluated
and analyzed to decide the needfulness of further investigation or
re-investigation – No one can insist that an offence be investigated
by a particular agency – An aggrieved person can only claim that
the offence he alleges be investigated properly, but he has no right
F to claim that it be investigated by any particular agency of his choice
– The power to transfer an investigation must be used “sparingly”
and only “in exceptional circumstances” – On facts, the writ petition
gives an impression that proper investigation was not being done
and, therefore, the same should be handed over to the CBI –
However, the fact is that the investigation had been already carried
G
out and charge sheets had been filed – In the overall view of the
matter, it was clear that no case, worth the name, has been made
out by the writ petitioners for any further investigation much less
through an independent agency to be appointed by the Supreme
Court.
H
724
HIMANSHU KUMAR AND OTHERS v. STATE OF 725
CHHATTISGARH AND OTHERS
Criminal Law – Investigation – The power to transfer an A
investigation must be used “sparingly” and only “in exceptional
circumstances”.
Criminal Law – CrPC does not define what constitutes the
making of a “charge” of an offence or what amounts to the
“institution of criminal proceedings” – The statement in order to B
constitute the “charges” should be made with the intention and object
of setting criminal law in motion.
Code of Criminal Procedure, 1973 – s.340 r/w s.195 – Penal
Code, 1860 – ss.191 and 193 – Perjury – Offence of making false
affidavit and giving false evidence – Held: There are two conditions, C
on fulfilment of which, a complaint can be filed against a person
who has given a false affidavit or evidence in a proceeding before
a court – The first condition being that a person has given a false
affidavit in a proceeding before the court and, secondly, in the
opinion of the court it is expedient in the interest of justice to make
an inquiry against such a person in relation to the offence committed D
by him – There should be something deliberate - a statement should
be made deliberately and consciously which is found to be false as
a result of comparing it with unimpeachable evidence, documentary
or otherwise – Before initiating proceedings for perjury, the court
concerned has to consider whether it would be expedient in the E
interest of justice to sanction such prosecution – Before sanctioning
prosecution there must be a prima facie case of a falsehood on a
matter of substance and the court should be satisfied that there is
reasonable foundation for the charge.
Penal Code, 1860 – s. 211 – Essential ingredients for invoking
s.211 – Discussed. F
Dismissing the writ petition and disposing of the
Interlocutory application, the Court
HELD:1.1 In an appropriate case when the Court feels that
the investigation by the police authorities is not in a proper
G
direction, and in order to do complete justice in the case and if
high police officials are involved in the alleged crime, the Court
may be justified in such circumstances to handover the
investigation to an independent agency like the CBI. Even after
the filing of the charge sheet the court is empowered in an
appropriate case to handover the investigation to an independent H
726 SUPREME COURT REPORTS [2022] 11 S.C.R.
A agency like the CBI. The extraordinary power of the
Constitutional Courts under Articles 32 and 226 respectively of
the Constitution of India qua the issuance of directions to the
CBI to conduct investigation must be exercised with great caution.
Though a satisfaction of want of proper, fair, impartial and effective
investigation eroding its credence and reliability is the
B
precondition for a direction for further investigation or
reinvestigation, submission of the charge sheet ipso facto or the
pendency of the trial can, by no means, be a prohibitive
impediment. The contextual facts and the attendant circumstances
have to be singularly evaluated and analyzed to decide the
C needfulness of further investigation or re-investigation to unravel
the truth and mete out justice to the parties. The prime concern
and the endeavour of the court of law should be to secure justice
on the basis of true facts which ought to be unearthed through a
committed, resolved and a competent investigating agency. [Paras
46, 47][774-B-D, F-H]
D
1.2. No one can insist that an offence be investigated by a
particular agency. An aggrieved person can only claim that the
offence he alleges be investigated properly, but he has no right
to claim that it be investigated by any particular agency of his
choice. [Para 52][776-B-C]
E
1.3. The power to transfer an investigation must be used
“sparingly” and only “in exceptional circumstances”. [Para
53][776-D]
2.1 In the instant case, all the FIRs were investigated by
F the concerned investigating agencies and, at the end of the
investigation, charge sheets came to be filed in different courts
of the State of Chhattisgarh for the offences under the IPC like
murder, dacoity,etc. [Para 55][776-F-G]
2.2. Having regard to the materials on record, no case, worth
G the name for further investigation or re-investigation, could also
be said to have been made out.The filing of the charge sheets at
the conclusion of the investigation into the various FIRs referred
to above would indicate that the alleged massacre was at the end
of the Naxalites (Maoists). The materials collected in the form of
the charge sheets substantiate the case put up by the respondents
H
HIMANSHU KUMAR AND OTHERS v. STATE OF 727
CHHATTISGARH AND OTHERS
that the villagers were attacked and killed by the Naxalites. There A
is not an iota of material figuring in the investigation on the basis
of which even a finger can be pointed towards the members of
the police force. [Paras 56 and 57][776-G-H; 777-A-B]
2.3. The writ petition gives an impression that proper
investigation is not being done and, therefore, the same should B
be handed over to the CBI. However, the fact is that the
investigation has already been carried out and charge sheets have
been filed. [Para 58][777-B-C]
2.4. It appears from the materials on record that all those
persons who have been arraigned as accused and against whom C
charge sheets have been filed are absconding. It is now for the
concerned trial court to take appropriate steps in this regard. If
the persons named as accused in the charge sheets are
absconding, then it is expected of the investigating agency to
take necessary steps for their arrest. In any view of the matter, it
is now for the trial court to do the needful in accordance with law. D
[Para 64][781-F-H]
2.5. In the overall view of the matter, it is clear that no
case, worth the name, has been made out by the writ petitioners
for any further investigation much less through an independent
agency to be appointed by this Court. In the facts of the above E
case, the conditions laid down by this Court in the case of
Committee for Protection of Democratic Rights, West Bengal
are not fulfilled. [Para 65][781-H; 782-A-B]
3.1. The essential ingredients for invoking Section 211,
I.P.C. are that the complaint must have falsely charged a person F
with having committed an offence. The complainant, at the time
of giving the complaint must have known that there is no just or
lawful ground for making a charge against the person. This
complaint must have been given with an intention to cause injury
to a person. [Para 90][802-D-E] G
3.2. The CrPC does not define what constitutes the making
of a “charge” of an offence or what amounts to the “institution of
criminal proceedings”. But, a false “charge” must not be
understood in any restricted or technical sense, but in its ordinary
H
728 SUPREME COURT REPORTS [2022] 11 S.C.R.
A meaning, of a false accusation made to any authority bound by law
to investigate it or to take any steps in regard to it, such as giving
information of it to the superior authorities with a view to
investigation or other proceedings, and the institution of criminal
proceedings includes the setting of the criminal law in motion.
[Para 91][802-E-F]
B
3.3. The essential ingredient of an offence under Section
211 IPC is to institute or cause, to be instituted any criminal
proceeding against a person with intent to cause him injury or
with similar intent to falsely charge any person with having
committed an offence, knowing that there is no just or lawful
C ground for such proceeding or charge. Instituting or causing to
institute false criminal proceedings assume false charge but false
charge may be preferred even when no criminal proceedings
result. Now, the expression “falsely charges” in this section
cannot mean giving false evidence as a prosecution witness against
D an accused person during the course of a criminal trial. “To falsely
charge” must refer to the original or initial accusation putting or
seeking to put in motion the machinery of criminal investigation
and not when seeking to prove the false charge by making
deposition in support of the charge framed in that trial. The words
“falsely charges” have to be, read along with the expression
E “institution of criminal proceeding”. Both these expressions,
being susceptible of analogous meaning should be understood to
have been used in their cognate sense. They get as it were their
colour and content from each other. They seem to have been
used in a technical sense as commonly understood in our criminal
F law. The false charge must, therefore, be made initially to a person
in authority or to someone who is in a position to get the offender
punished by appropriate proceedings. In other words, it must
be’ embodied either in a complaint or in a report of a cognizable
offence to the police officer or to an officer having authority over
the person against whom the allegations are made. The statement
G in order to constitute the “charges” should be made with the
intention and object of setting criminal law in motion. [Para
94][804-D-H; 805-A]
State of West Bengal and others v. Committee for
Protection of Democratic Rights, West Bengal (2010) 3
H SCC 571 : [2010] 2 SCR 979 – followed.
HIMANSHU KUMAR AND OTHERS v. STATE OF 729
CHHATTISGARH AND OTHERS
K.V. Rajendran v. Superintendent of Police, CBCID A
South Zone, Chennai, (2013) 12 SCC 480 : [2013]
9 SCR 199 – relied on.
Secretary, Minor Irrigation, Rural Engineering Services,
U.P. v. Sahngoo Ram Arya and Anr. (2002) 5 SCC 521;
Romila Thapar v. Union of India (2018) 10 SCC 753 : B
[2013] 9 SCR 199; Narmada Bai v. State of Gujarat
(2011) 5 SCC 79 : [2011] 5 SCR 729; Sanjiv Rajendra
Bhatt v. Union of India (2016) 1 SCC 1 :
[ 2015]12 SCR 498; E. Sivakumar v. Union of India
(2018) 7 SCC 365; [2018] 6 SCR 522; Divine Retreat
Centre v. State of Kerala (2008) 3 SCC 542 : [2008] C
4 SCR 701; K.Karunakaran v. T.V. Eachara Warrier
and another AIR 1978 SC 290 : [1978] 2 SCR 209;
Baban Singh and another v. Jagdish Singh and others
AIR 1967 SC 68 : [1966] 3 SCR 552; Chajoo Ram v.
Radhey Shyam (1971) 1 SCC 774 : [1971] Suppl. D
SCR172; Chandrapal Singh and Others v. Maharaj
Singh and Another (1982) 1 SCC 466; R.S. Sujatha v.
State of Karnataka and Others (2011) 5 SCC 689 :
[2010] 14 SCR 227; S.P. Kohli v. High Court of Punjab
& Haryana AIR 1978 SC 1753 : [1979] 1 SCR 722;
Muthu Karuppan, Commissioner of Police, Chennai v. E
ParithiIlamvazhuthi and another (2011) 5 SCC 496 :
[2011] 5 SCR 329; M.S. Sheriff and Another v. State
of Madras and Others AIR 1954 SC 397 : [1954]
SCR 1144; Aarish Asgar Qureshi v. Fareed Ahmed
Qureshi and another (2019) SCC 172 : [2019] F
3 SCR 400; Sharad Pawar v. Jagmohan Dalmiya
(2010) 15 SCC 290; State of Punjab v. Jasbir Singh
(2020) 12 SCC 96; Santokh Singh & Ors. v. Izhar
Hussan and Anr. (1973) 2 SCC 406 : [1974] 1 SCR 78
and M.L. Sethi v. R.P. Kapur AIR 1967 SC 528 : [1967]
1 SCR 520 – referred to. G
CBI & Another v. Rajesh Gandhi and another 1997
Cr.L.J 63 – affirmed.
Karim Buksh v. Queen Emp 17 C. 574 – referred to.
H
730 SUPREME COURT REPORTS [2022] 11 S.C.R.
A Case Law Reference
[2010] 2 SCR 979 followed Para 44
(2002) 5 SCC 521 referred to Para 45
[2013] 9 SCR 199 relied on Para 48
B [2011] 5 SCR 729 referred to Para 51
[2015] 12 SCR 498 referred to Para 51
[2018] 6 SCR 522 referred to Para 51
[2008] 4 SCR 701 referred to Para 51
C [1978] 2 SCR 209 referred to Para 73
[1966] 3 SCR 552 referred to Para 74
[1971] Suppl. SCR 172 referred to Para 75
(1982) 1 SCC 466 referred to Para 76
D [2010] 14 SCR 227 referred to Para 77
[1979] 1 SCR 722 referred to Para 79
[2011] 5 SCR 329 referred to Para 80
[1954] SCR 1144 referred to Para 82
E [2019] 3 SCR 400 referred to Para 83
(2010) 15 SCC 290 referred to Para 84
(2020) 12 SCC 96 referred to Para 86
[1974] 1 SCR 78 referred to Para 93
F
[1967] 1 SCR 520 referred to Para 96
CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 103 of 2009.
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
G Colin Gonsalves, Sr. Adv., Ms. Sneha Mukherjee, Satya Mitra,
Advs. for the Petitioners.
Tushar Mehta, SG, K. M. Nataraj, ASG, Rajat Nair, Shailesh
Madiyal, Ms. Neela Kedar Gokhale, Ms. Diksha Rai, Balendu Shekhar,
Arvind Kumar Sharma, B. V. Balaram Das, Sumeer Sodhi, Abhishek
H Lalwani, Advs. for the Respondents.
HIMANSHU KUMAR AND OTHERS v. STATE OF 731
CHHATTISGARH AND OTHERS
The Judgment of the Court was delivered by A
J. B. PARDIWALA, J.
1. This writ petition under Article 32 of the Constitution of India
relates to the alleged massacre that took place on 17 th September 2009
and 1st October 2009 respectively in the villages of Gachhanpalli, Gompad
and Belpocha respectively situated in the district of Dantewada, State B
of Chhattisgarh.
2. It is the case of the writ petitioners that the Chhattisgarh Police,
Special Police Officers (SPOs), the activists of Salwa Judum (group of
vigilantes sponsored by the Chhattisgarh Government) and the
Paramilitary Forces consisting of the CRPF and the CoBRA Battalions C
are responsible for the alleged brutal massacre of the tribals in the
respective villages referred to above.
3. In the aforesaid context, the writ petitioners have prayed for
the following reliefs :
D
“(a) Issue a writ of mandamus or any other appropriate writ,
order or direction to the respondents to have the CBI take
over the investigation and prosecution with respect to the
complaints made by the petitioners and others with respect to
the massacres that took place on 17.9.2009 and 1.10.2009
as set out in this petition; E
(b) Pass an order directing the payment of compensation to
the victims and their families for the extra judicial executions,
for the looting of their properties, for the burning of their
houses and other losses suffered by the victims on account of
the unlawful activities of the respondents and their agents; F
(c) Pass any such further order or orders, as this Hon’ble
Court may deem fit and proper in the facts and circumstances
stated herein above.”
4. By way of the Criminal M.P. No.3173 of 2010, further reliefs G
have been prayed for as under :
“(a) Order directing the State of Chhattisgarh to constitute
and notify a Special Investigation Team (SIT) headed by Shri
Sankar Sen (IPS) Dr.K.S.Subramanian, IPS and Mr.Rajneesh
Rai, DIG and such other officers as the SIT may deem
H
732 SUPREME COURT REPORTS [2022] 11 S.C.R.
A necessary with additional directions for the proper functioning
of the SIT as given by the Supreme Court in the case of NHRC
vs. State of Gujarat (2009) 6 SCC 342, 767).
(b) Order directing the State of Chhattisgarh to produce
Petitioners 2-12 at Delhi and hand them over to
B Dr.MohiniGiri, Chairperson, Guild for Services, ‘Shubham’,
C-25, Qutab Institutional Area, New Delhi;
(c) Order permitting the petitioner no.1 and the advocates
for the petitioner no.1 along with their interpreters to meet
the petitioners 2-12 at the Guild for Services, New Delhi in
C the presence of Dr.MohiniGiri;
(d) Order requesting Dr.MohiniGiri, Chairperson, Guild for
Services, New Delhi, to interview the petitioners and make a
report to this Court.”
5. The facts giving rise to the present writ petition may be
D summarised as under :
6. The writ petitioner no.1, namely Himanshu Kumar, claims
himself to be running an NGO in the name of Vanvasi Chetna Ashram,
Kanwalnar – Dantewada Chhattisgarh. He claims to be running an NGO
for the welfare and development of the tribals residing in the Bastar
E region. He also claims to be rendering help tothe other tribals of the
Dantewada district of Chhattisgarh.
7. The writ petitioners nos.2 to 13 respectively are the kith and
kin of the victims of the alleged massacre.
F 8. It is the case of the petitioner no.1 that after the two horrifying
incidents referred to above, the tribals are in a state of shock. They
constantly remain under the fear of being killed by the Special Forces
referred to above.
9. It is his case that with a view to help the tribals and seek justice
G for them, he took up the cause and thought fit to prefer the present
writpetition seeking an investigation into the alleged massacre through
the Central Bureau of Investigation (CBI) and an appropriate
compensation to be paid to the victims and their families.
10. It is the case of the petitioner no.1 that he helped the tribals to
lodge their respective complaints as regards the alleged mass killings
H
HIMANSHU KUMAR AND OTHERS v. STATE OF 733
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
that took place on 17th September 2009 and 1st October 2009 respectively. A
11. According to the petitioner no.1, the tongue and other parts of
the body, such as, the upper limbs, lower limbs, etc. of the family members
of the petitioners nos.2 to 13 respectively were chopped off by the security
force. It is alleged that the security forces did not spare even the infants.
It is also alleged that the breast of a 70-year-old tribal woman were B
chopped off and was stabbed to death by the members of the police
forces. It is also alleged that a 2-year-old infant was brutally murdered.
The houses of the tribals were burnt. Money and properties were looted.
12. It has been further pointed out that on 8th January 2009, 19
people were killed by the above referred forces at the village Singaram, C
Tehsil Konta, District Dantewada.
13. On 18th March 2008, 3 tribals were killed at Matwada, Salwa
Judum Camp, District Bijapur, by the Chhattisgarh Police and SPOs.
14. It has been pointed out that with respect to the aforesaid two
incidents, the matter was taken up by the National Human Rights D
Commission.
15. It is the case of the petitioner no.1 that as the Special Forces
and the State of Chhattisgarh itself are involved in the alleged brutal
massacre of the tribals, the investigation of all the complaints should be
at the instance of none other than the CBI. E
16. In the memorandum of the writpetition, the information as
regards the relationship between the petitioners nos.2 to 13 respectively
and the deceased has been furnished as under :
F
G
H
734 SUPREME COURT REPORTS [2022] 11 S.C.R.
A
B
C
D
E
F
G
17. The details of the alleged killings on different dates have also
been furnished in the memorandum of the writpetition. However, we
may not verbatim reproduce the same in our order.
H
HIMANSHU KUMAR AND OTHERS v. STATE OF 735
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
18. The details on the First Information Reports are as under : A
B
C
D
E
F
G
H
736 SUPREME COURT REPORTS [2022] 11 S.C.R.
A
B
C
D
E
F
G
H
HIMANSHU KUMAR AND OTHERS v. STATE OF 737
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
A
B
C
D
E
F
G
H
738 SUPREME COURT REPORTS [2022] 11 S.C.R.
A
B
C
D
E
F
G
19. It is the case of the petitioners that after the registration of the
FIRs referred to above, no action has been taken by the police. No one
came to be arrested. No proper investigation has been undertaken. Not
a single statement of any of the eye-witnesses has been recorded. In
H such circumstances referred to above, the writ petitioners are here before
HIMANSHU KUMAR AND OTHERS v. STATE OF 739
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
this Court with the present writpetition seeking relief of investigation of A
all the FIRs through the CBI. The petitioners also seek compensation
from the Government for the alleged atrocities and massacre.
STANCE OF THE STATE OF CHHATTISGARH :
20. The State of Chhattisgarh has refuted all the allegations levelled
in the memorandum of the writ petition by filing counter-affidavit duly B
affirmed through one Shri Vimal Kumar Bais, Deputy Superintendent of
Police, Headquarter – Dantewada, Chhattisgarh, dated 4 th February
2010. The affidavit minutely deals with all the incidents referred to by
the petitioners in the memorandum of the writpetition. We quote the
same as under : C
“5. That the State of Chhattisgarh is facing menace of
Naxalism which has been termed as a number one security
threat to nation’s integrity and sovereignty by the Hon’ble
Prime Minister of India. The State Police with help of
paramilitary forces have to tackle the Naxalism and most of D
the organizations concerning Naxalite movements have also
been banned. The State of Chhattisgarh has lost precious life
of its personnel while defending the State. In last two years,
the security personnel who are killed by Naxalite in the State
of Chhattisgarh would be in the range of 300. In the District
of Dantewada alone, sixty-five police personnel have died. E
The State of Chhattisgarh has also stated in its earlier affidavit
that these writ petitions are filed by Naxal sympathizers. In
fact, the State of Chhattisgarh verily believes that mountains
of complaints are filed so as to detract the police personnel
from tackling the menace of Naxalism. The police personnel F
have lost their lives while combating the menace of Naxalite
activities. A cavalcade of entire police personnel was
ambushed in which even one S.P. died.
PARAWISE REPLY :
1. The contents of paragraph No.1 of the writ petition are G
denied and the attack on the police party by the Naxalites
have been sought to be given the connotation of ‘massacre’.
The State of Chhattisgarh have explained the three incidents
of 17.09.09 and 01.10.09 with Naxalites in detail in the
subsequent paragraphs. The word ‘massacre’ is being used
H
740 SUPREME COURT REPORTS [2022] 11 S.C.R.
A in a cursory manner without revealing the true nature of the
incidents on 17.09.2009 and 01.10.2009.
RE : INCIDENT OF 17.09.09 [GACHANPALLI] :
A team of CoBRA Battalion along with other police officials
started off for village Gachanpalli at around 07:45 PM on
B 16.09.2009, when the police party reached village
Gachanpalli and cordoned off the Naxal camp and at around
5.30 AM, the Naxalite opened fire indiscriminately. The police
had no option but to retaliate in self defence. However even
after ceasefire, 150-200 Naxalites were able to retreat into
C dense forest. Several arms and ammunitions were recovered
from Naxals including Naxal uniforms. At present, it is
registered as Crime No.4/09 under Sec. 147, 148, 149, 307,
I.P.C. and 25/27 Arms Act at P.S. Bhejji of Gachanpalli and
the investigation is carried on by the CID.
D RE : INCIDENT OF 17.09.09 VILLAGE - SINGANPALLI :
The Police Force headed by Devnath Sonkunwar started off
for Singanmadgu and while patrolling on 16.09.2009, they
found a Naxal Camp in the jungle of Singanmadgu in the
early hours of morning. There was incessant firing from 200-
E 300 uniformed Naxalites. The police had to opened fire in his
self defence. It would be relevant to mention that many police
personnel including Kobra AC Manoranjan Singh, AC Shri
Rakesh Chaurasiya, Shri Uday Kumar Yadav were shot dead.
Thus precious lives of police personnel were lost in the cross-
fire and the firing continued till 08:00 PM on 18.09.2009.
F Further enforcement of police personnel were also sought.
An FIR No.10/2009 was also registered by P.S. Chintagupha
on 20.09.2009. The case was later on shifted to C.I.D. for
further investigation in accordance with the recommendations
of the NHRC in Nandini Sunder’s case. One dead body of
G Madavi Deva was identified who died during the cross fire
between the Naxalites and the Police.
It would be relevant to mention that S.P. Office have received
complaints of Madavi Hidma S/o Madavi Kosa, Kawasi Kosa
son of late Kawasi Ganga, Madkam Muke wife of Markam
Chula, Madavi Raza son of Madavi Joga, all belonging to
H
HIMANSHU KUMAR AND OTHERS v. STATE OF 741
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
Gachanpalli. The nature of complaints is full of suspicion A
because all the complaints are in same format and typed in
same manner, giving arise to suspicion that certain
organizations sympathetic to Naxalites or Naxalite-oriented
organizations are behind the lodging of such complaints.
These complaints are being investigated and veracity of those
B
complaints are doubtful as they are in fixed format and typed
in same manner. In any way, on 10.12.2009 even a visit was
made to Gachanpalli to record the statements of
Complainants. However no Complainants were found on
10.12.2009 as the Naxalites persuaded the Complainants to
not to cooperate with the police. Now the Additional S.P. C
Dantewada has been entrusted with the job of completing
the Investigation in a speedy manner.
RE: INCIDENT OF 01.10.2009 [GOMPAD INCIDENT] :
A team of security forces consisting of COBRA, local police D
and SPOs had started off on 30.09.2009 for Gompad village
on the information of a naxal camp being run near village.
When police party was about to reach the village at 06:30
AM on 01.10.2009, it came under heavy fire by Naxalites.
The attack was repulsed and place was searched. Police did
not find anybody. Afterwards the village was also searched E
but everyone fled away. The above incident is being
investigated by Bhejji PS after registration of FIR No.05/09
under Sec.147, 148, 149, 307 IPC and 25, 27 Arms Act. The
case has been transferred to CID for investigation.
F
The SP office received complaints of Soyam Dula son of late
Soyam Dula, Soyam Rama son of late SoyamKanna, Mrs. Sodi
Sambo wife of Sodi Badra, all belonging to Gompad village,
all of them desirous of registration of crime against security
forces for alleged killing of their relatives. The reason for
holding further investigation in the manner is because the G
complaints are filed after much delay of the alleged crime
and secondly, all the complaints are in a fixed format and
typed in same manner giving rise to suspicion that those
compl ai nts have been engi neer ed by Naxal s fr ontal
organizations to derail the investi gation.
H
742 SUPREME COURT REPORTS [2022] 11 S.C.R.
A It is also a moot point to note that during the course of
investigation, S.D.O.P. Konta and his team had visited the
alleged Complainants but those Complainants were
untraceable. The State of Chhattisgarh is of the firm belief
that those Complainants are only working at the behest of
Naxalites and are even under threat of Naxalites. The State
B
of Chhattisgarh thought that since petitioner No. 1 is in active
contact with complainants and has even chosen to file writ
petition before this Hon’ble Court, it would be advisable that
petitioner No. 1 himself comes forth with all the complainants
to expedite the investigations. However this request of police,
C to cooperate in the investigation, is being adversely
commented upon by the petitioner No. 1 before this Hon’ble
Court.
Crime No. 05/2009 under Sec. 147, 148, 149, 307 IPC and
Sec.27/27 of Arms Act has been registered on the report of
D Security Forces whereas Crime No. 01/2010 under Sec. 396,
397 IPC has been registered in this regard as per the enquiry
based on application made by Soyam Rama. The case is now
investigated by C.I.D. in accordance with the recommendation
of NHRC in Nandini Sunder’s case.
E 2. The contents of paragraph No.2 of the writ petition are
vehemently denied. It would be evident that the aforesaid two
incidents of 17.09.2009 and one incident of 01.10.2009 have
also brought untold misery and deprivation of police
personnel and several police personnel have lost their lives.
The contents of paragraph No.2 about alleged massacre is
F completely misleading and truth of the matter is mat petitioner
No.1 after the Naxalite incident has instigated villagers to
lodge complaints. It is denied that a woman had her breast
cut-off and two year old infant was brutally murdered.
Similarly it is also denied that blind man of 70 years old was
G executed.
3. & 4. The contents of paragraphs No.3 & 4 of the writ
petition are denied as long as they pertain to the incidents of
17.09.2009 and 01.10.2009. The FIR relating to the incidents
of 17.09.2009 and that of 01.10.2009 have already been
H transferred to C.I.D. in accordance with the NHRC
HIMANSHU KUMAR AND OTHERS v. STATE OF 743
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
recommendations in Nandini Sunder’s Case. The State of A
Chhattisgarh would follow the NHRC recommendation
regarding the incidents of 17.09.2009 and 01.10.2009 and
transfer of case to the CBI is completely unwarranted. In any
case, whether a matter could be transferred to CBI or not is
pending before the Constitution Bench of this Hon’ble Court
B
and the judgement is still awaited.
5. In response to the contents of paragraph No.5 of the writ
petition, it is stated that writ petitions concerning incidents
dated 18.03.2008 at District Bijapur and 08.01.2009 at
District Dantewada are already pending before the Hon’ble
High Court as Writ Petition Nos.211/2008 & 363/2009 C
respectively. The Hon’ble High Court of Chhattisgarh is in
seisen of the matter and the deponent has already traversed
the pleadings before the Chhattisgarh High Court.
6. The contents of paragraph No.6 of the writ petition are
denied for want of knowledge. D
7. In response to the contents of paragraph No.7 of the writ
petition, it is submitted that incident of 17.01.2009 is already
explained in the preceding paragraphs and therefore it
requires no further reply. The facts have been completely
distorted and are stated in false manner. It has already been E
stated that Madavi Deva was the uniformed Naxalite whose
body found from the site while the incident on 17.09.09 at
Singampali. As regards case of burning in hot oil of Muchaki
Deva, though no complaint has been made to police. It is
only found in a press release dated 30.10.2009 of the fact F
finding team of PUCL (Chhattisgarh), PUDR (Delhi, Vanvasi
Chetna Ashram (Dantewada), Human Rights Law Network
(Chhatisgarh), Action Aid (Orissa), Manna Adhikar
(Malkangiri) and Zilla Adhivasi Ekta Sangh (Malkangiri),
that Muchaki Deva has been taken to Bhadrachalam by
members of the fact finding team. However this entire G
allegation of burning in hot oil is turned out to be a totally
concocted story as evident from the article published in
Hindustan Times in which doctors of Bhadrachalam have
denied to have seen such a burn case at all. As far as the
allegation of certain persons being ‘tied’ and paraded Is H
744 SUPREME COURT REPORTS [2022] 11 S.C.R.
A concerned, it is maintained that when security forces reached
to the village Gachanpalli, after repulsing the attack, no one
was found and everybody had fled to the jungle. It is the
Naxalites who are unleashing terror and the blame is put on
the State. It is reiterated that the entire efforts seems to eulogize
the Naxalite movement and to bring every effort to curtail
B
Naxalism in poor light.
The incident of 01.10.2009 has been explained in detail in
the preceding paragraphs and the facts stated in the
paragraph under Reply are totally distorted and far from truth.
C As regards allegation of 8 arrested and two missing, it could
be said that an FIR No.27/2009 dated 02.10.2009, P.S. Konta,
has been registered which is relatable to attack by Naxalites
on security forces in the jungle of Nulkatong on 01.10.2009.
In above incident, two dead bodies were recovered and eight
people had been arrested. The two dead bodies were brought
D to P.S. Konta and inquest by Executive Magistrate and post-
mortem report was made as per provisions of law.
The alleged killings at Chintagufa (the other one than that of
Siganpalli) came to the knowledge to the State of Chhattisgarh
only after the receipt of this writ petition and same is being
E investigated upon.
The recognition of Panda Soma and Ganga of Asarguda
village are completely misplaced. It is reiterated that no person
by the name of Ganga of Asarguda village have been SPO in
police record of Dantewada. Panda Soma was killed in blast
F by Naxalites on 06.05.2009 and there is also a death
certificate to that effect. Thus the presence of Panda Soma
on 01.10.2009 is completely falsified. The allegations of
looting, burning of houses, harassment & torture by the
security forces are also denied vehemently.
G 8. The contents of paragraph No.8 of the writ petition are
denied. There have been no extra judicial killings and in fact
several police personnel have also lost their lives. The
Petitioners No.2 to 13 may not like go to the police station
but they can certainly go to Magistrate for registration of
FIR under Section 156(3) of the Code of Criminal Procedure.
H
HIMANSHU KUMAR AND OTHERS v. STATE OF 745
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
The judicial system even at the grass-root level is independent A
and would be in position to monitor the investigation in an
effective manner.
9. &Ors. In response to the contents of paragraphs No.9, 11,
12, 13, 14, 15, 17, 18, 19, 20 and 21 of the writ petition, it is
submitted that the complaint are under investigation and the B
stories are more in the nature of ‘make-believe’. The true
incident has already been narrated in the preceding
paragraph. The Complainants have not been found whenever
the places of their residence is visited by the investigating
authorities. The S.P., Dantewada, made a request to the
petitioner No.1 to furnish the details of Complainants or C
produce the Complainants themselves so that further
investigation could take place. However petitioner No.1 has
taken umbrage, which would be evident from the pleadings
before this Hon’ble Court. In fact, the police is not getting
any assistance from the petitioner No.1 who claims to be D
representatives of petitioners No.2 to 13.
10. In response to the complaint filed by Kunjan Hidma as
mentioned in the contents of paragraph No.10 of the writ
petition, an enquiry was instituted and enquiry report has
been submitted by S.D.O.P. Konta. It has been stated that E
nobody was found by the police personnel when they visited
village Belpocha on 07.12.2009. It is relevant to mention that
village Belpocha is situated only 14 kms from P.S. Konta but
the Complainant did not report the matter at P.S. Konta.
It is strange that killing of his son KunjamHurra was not F
reported to the police, even though the village Dhondhara is
situated nearby. The village men of Dhondhara Sarpanch
Markam Krishana, former Sarpanch Markam Sitaram, Punam
Naraiya were interrogated about the alleged incident. They
refused to have any knowledge about the incident. Thus no
evidence was found and the complaint was found to be false G
after discreet enquiry.
16. In response to the contents of paragraph No.16 of the
writ petition, it is submitted that an enquiry report was
submitted by S.D.O.P., Konta in which it is stated that S.D.O.P.
Konta tried to contact the Complainant at village Nulkatong H
746 SUPREME COURT REPORTS [2022] 11 S.C.R.
A on 09.11.2009 but no one was found in the village. It is
relevant to mention that the two dead bodies of unknown
naxals were brought to P.S. Konta and an inquest was also
prepared by the Executive Magistrate. Nobody had turned
up for identification of dead bodies for almost three days. An
FIR No.27/2009 under Sec.147, 148, 149, 307 IPC read with
B
Sec.25 & 27 of Arms Act have been registered at P.S. Konta.
Now the Addl. S.P. Dantewada has been given charge to hold
the enquiry in speedy manner.
22. The contents of paragraph No.22 of the writ petition are
denied. It is respectfully submitted that the villagers are living
C in state of fear from Naxalites and not from the State.
23. The contents of paragraph No.23 of the writ petition are
vehementiy denied. The State of Chhattisgarh believes that
story of hot boil is not seriously believed even by the petitioner
No.1 and is a fiction.
D
24. The contents of paragraph No.24 of the writ petition are
denied. Certain matters are subjudice before Hon’ble High
Court of Chhattisgarh at Bilaspur while in others the
Complainants have not come forward and did not cooperate
in the investigation. The State of Chhattisgarh is committed to
E register an FIR and even hold investigation provided the
Complainants cooperate in the investigation process. In any
case at the F.I.R.s concerning incidents of 17.09.09 and
01.10.09 have been duly registered and investigations are
going on.
F 25. to 27. The contents of paragraphs No.25 & 26 of the writ
petition are denied and this subject matter is already part of
the writ petition filed before Hon’ble High Court of
Chhattisgarh.
28.1 The contents of paragraph No.28.1 of the writ petition
G are denied and incidents of 17.01.2009 and 01.10.2009 have
already been dealt with in the preceding paragraphs.
28.2 & 28.3 The contents of paragraph No.28.2 of the writ
petition are vehemently denied. The FIRs have been registered
and an investigation has been transferred to the C.I.D. in
H accordance with the recommendations of the NHRC in
HIMANSHU KUMAR AND OTHERS v. STATE OF 747
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
Nandani Sunder’s case. It is also settled proposition of law A
that there may not be more than one FIR regarding the same
incident and once an FIR is registered, then the subsequent
complaints about the same incident would be termed as
statements under Sec.161 of the Code of Criminal Procedure.
Even if the second FIR is registered about the same incident,
B
it would have little effect on the overall investigation of the
case. The State of Chhattisgarh is cognizant of the complaints
and has even stated to the petitioner No.1 herein to come
forward with the Complainants so that there statements could
be recorded and investigation is duly completed. The State of
Chhattisgarh reiterates that if the Complainants or the C
Petitioners come forward then the State would readily record
their statements and even register separate FIRs apart from
the FIRs registered by the Police so far.
28.4 The contents of paragraph No.28.4 of the writ petition
are denied because the investigation is done in the proper D
manner and there is no apparent irregularity or omission in
the investigation which would warrant investigation by the
CBI. In any case, whether an investigation could be made by
CBI at the direction of the Hon’ble Court is pending
consideration before the Constitution Bench.
E
28.5 The contents of paragraph No.28.5 of the writ petition
are vehemently denied. The police has duly registered the FIRs
and investigation is conducted in accordance with the NHRC
recommendations in Nandini Sunder’s case. It is the Naxals
who have attacked the posse of policemen and this allegation
of ‘massacre’ is invoked for misleading this Hon’ble Court. F
28.6 The contents of paragraph No.28.6 of the writ petition
are denied. The Complainants are in touch with the petitioner
No.1 and the State of Chhattisgarh reiterates that if the
Complainants come forward then their statements shall be
recorded and investigation shall be done accordingly. G
However the Complainants have played truant. Normally one
FIR is registered for one incident and subsequent complaints
are recorded as statements under Sec.161 of the Code of
Criminal Procedure and investigation takes place accordingly.
Even if a formal separate FIR is registered, the Complainants H
748 SUPREME COURT REPORTS [2022] 11 S.C.R.
A and some of the Petitioners shall have to come forward to
cooperate with the investigation.
28.7 The contents of paragraph No.28.7 of the writ petition
are vague and hence denied.
28.8 The contents of paragraph No.28.8 of the writ petition
B are denied. It is respectfully submitted that word ‘massacre’ is
misnomer. The State has not violated Articles 14, 19 and 21
of the Constitution of India.”
21. We take notice of the fact that an affidavit-in-rejoinder has
been filed, duly affirmed by the petitioner no.1, to the aforesaid reply
C filed by the State of Chhattisgarh. In the rejoinder, the petitioner no.1
has once again reiterated what has been stated in the writpetition.
CoBRA 201 BATTALION :
22. An affidavit-in-reply has also been filed on behalf of the
D respondent no.3, duly affirmed by one Shri Dilip Kumar Kotia (201
CoBRA Bn. - SAF). Few relevant averments made in the reply are as
under :
“7(1) Regarding Gachanpalli murders: No civilian was killed
or injured by the CoBRA/SAF troops. The killing of 02 years
old child and 01 blind man of 70 years are denied. However,
E
it is the known fact that naxalites often use civilians as human
shield. It is further submitted that the CoBRA troops fired on
provocation of naxalites in self defence and to defend
themselves at Gachanpalli on 17/09/09 when they were
ambushed by the naxalites. Hence, the probability of naxalities
F themselves indulging in these acts of terrorizing the locals to
coerce them to join their naxal movement can not be ruled
out.
(2) Regarding the case of Madvi Deva: The troops of CoBRA
201 Bn did not carry out operation in village Singhanaplli
G on 17/09/09. It is submitted that one of the naxalites who was
wearing a black naxal uniform and carrying a muzzle loaded
gun was killed in an encounter with the CoBRA/SAF Bn at
the time of unearthing of naxalite gun factory at
Singhanmadugu. His dead body was later on brought to PS
Chintagufa Distt. Dantewada for post mortem and further
H
HIMANSHU KUMAR AND OTHERS v. STATE OF 749
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
legal action. FIR No. 10/2009 dated 20/9/2009 u/s 307, 395, A
397 of IPC, Sections 25/27 Arms Act and Sections 3,4 of
Explosives Act was also lodged with PS Chintagufa
(Dantewada) about the incident. It is to mention here that if
the said person was Madavi Deva of Singhanpalli village
then he was definitely a naxalite and not an innocent civilian.
B
It is further mentioned here that during the course of
unearthing the Arms factory of naxalites and returning back
our troops were ambushed by the naxalites near village
Singhanmadugu where 06 brave commandos of CoBRA/SAF
have lost their precious lives and body of those martyrs
recovered only on 19/09/09 morning. The troops of CoBRA/ C
SAF had no option except to retaliate which lasted for about
one and a half hour.
(3) Regarding Burnt in hot oil: The troops of CoBRA Bn./
CRPF had neither conducted any operation at village
Ondherpara nor committed any act as alleged. Hence, the D
allegation against this Force is totally false and frivolous.
(4) Regarding Tying and parading: The allegation against
the Force personnel is totally false as no person was
apprehended or arrested during the operation.
(5) Regarding Force displacement and terror: There are E
frequent reports of murder and torture of innocent people by
naxalite cadres to terrorize the masses in the name Maoist
ideology and it has also been informed by intelligence sources
that naxalites are seen in security force uniforms in this region.
Hence, the probability of naxalites themselves having indulged F
in these acts of terrorizing the tribals to coerce to support
and join their naxal movement cannot be ruled out. It seems
to be parts of naxals psychological war fare against the
security forces with intention to stall and jeopardize the
ongoing operations against them in their strong hold areas.
G
(6) Regarding Gompada ‘encounter’ dated 1/10/09: On the
basis of intelligence received from sources regarding presence
of naxalites in the village of Gompad under the jurisdiction
of PS Bheji on dated 30/09/09 special joint operation was
planned involving party of SAF 201 Bn., Civil Police and
SPOs. The party was given task to carry out cordon and search H
750 SUPREME COURT REPORTS [2022] 11 S.C.R.
A at Gompad Village. The troops were carrying man pack (bag
containing various items of troops) and all the other logistic
and administrative support items sufficient for 03 days
duration. Accordingly, CoBRA/SAF troops comprising AC-02,
SOs-04, Other Ranks-66, HC/RO-02 under the command of
Shri Ravindra Singh Shekhawat, Asstt. Comdt. alongwith one
B
ASI of civil police, 08 constable of civil police and 21 SPOs
left from the base camp of PS Bheji on 30/09/09. When CoBRA/
SAF troops were about 01 Km short of village Gompad at
about 0630 hrs on 01/10/09 naxalites ambushed the troops
and opened heavy fire. CoBRA/SAF troops had no other
C option and were forced to retaliate the fire which lasted for
about 20 minutes and naxalites fled away from the ambush
site. When the naxalites were fleeing they were seen carrying
their injured colleagues. After the naxalites fled away, the
area was thoroughly searched by our troops and Hand
D grenade-02, Tiffin bomb-01, Solar panel-01, fired case of 7.62
x 51 mm carts-03, Detonator-02, Cap-01 were recovered from
the ambush site which were left by naxalites in hurry while
fleeing the site. Troops moved further and searched village
Gompad where no villager was found. Then our troops
returned back. However it is submitted that due to strong action
E against the naxalites by the CoBRA/SAF Bn in the joint
operation since 16/09/09 onward in the interior naxal affected
and dominant villages destroying and unearthing the Arms
factory of the naxalites, the naxalites have lost the ground
and baffled. And this strong action of the CoBRA/SAF Bn
F was highly appreciated and published in the local newspapers.
Hence, the petitioners in connivance with the naxalites have
falsely alleged against the local police and SAF 201 to stall
the operations against naxalities with well thought out
nefarious designs.
G (7) Regarding more killings: Neither our Force carried out
any operations at Chintagufa on 01/10/2009 nor killed or
injured any innocent civilians. The allegation is false. Hence,
allegation is vehemently denied.
(8) Regarding travails of a 2 years old: No civilian or child
was bodily harmed/tortured by Force personnel during the
H
HIMANSHU KUMAR AND OTHERS v. STATE OF 751
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
operations. The allegation against CoBRA/SAF Force is totally A
false and fabricated. Hence, vehemently denied.
(9) Regarding 8 arrested and 2 missing: Force of this 201
CoBRA/SAF Unit was neither deployed for operational duty
in Mukundtong and Junitong villages nor they have committed
any such act mentioned in allegation. Hence, vehemently B
denied.
(10) Regarding looting and burning of property and houses:
Force personnel of 201 CoBRA(SAF) Bn. neither looted nor
stolen any property/money from any of the houses during
operation. Rather the naxalites burnt down their own training C
infrastructure and hide outs when Force personnel carried
out operations at their location. The allegations against Force
personnel are fabricated and totally false as they were
carrying sufficient ration and other items required for their
personal use during the operations.
D
(11) Regarding harassment and torture: No civilian was either
harassed or tortured during the operation by 201 CoBRA(SAF)
Bn. as alleged. Hence, this allegation against the Force
personnel is false and denied.
(12) Regarding presence of SPOs and SalwaJudum leader E
with security forces: Personnel of 201 CoBRA (SAF) did not
conduct operation in Mukudtong village and hence no
question of SalwaJudum leader accompanying them. However,
CoBRA personnel carried out operation in Gomapada village
on 1/10/09 alongwith civil police and SPOs. F
(13) Regarding forced displacement and terror: No houses
were damaged/ burnt by the Force personnel and no forcible
displacement of villagers carried out. Hence, this allegation
against Force personnel is totally false and denied.
8. In reply to para-8, it is submitted that no civilian was killed G
or tortured by the SAF 201 personnel and all the allegations
against this Force are false and fabricated. It is the duty of
the Paramilitary Force to step in aid of the people and not to
harass them or to commit any activity derogatory to the human
rights. In fact, the Force is operating at the risk of life of H
752 SUPREME COURT REPORTS [2022] 11 S.C.R.
A their personnel engaged in protecting life and property of
the citizens.
9. In reply to para 9, it is submitted that the allegation is
false, hence denied. In fact the troops were ambushed near
this village Gompad and after an exchange of fire the troops
B seized Hand Grenade-02 Nos, Tiffin Bomb-01,Booby trap-1
Solar Panel-01, fired cases of 7.62x51 mm cart-03, detonator-
02, Cap-01.
10. In reply to para 10, it is submitted that the troops of 201
CoBRA (SAF) Bn. did not carry out any operation at Dhodhra.
C The allegations are totally false, baseless, hence denied.
11. In reply to para 11, it is submitted that no civilian was
either caught or killed by this Unit personnel neither any
money was ever looted. However, on 17/09/2009 our troops
were ambushed by the naxalites in Gachanpalli and the troops
D retaliated in self defence. This allegation against 201 CoBRA
(SAF) Bn. is false and baseless and hence denied.
12. In reply to para 12, it is submitted that the allegation is
false as no such act was committed by 201 CoBRA (SAF) Bn.
and hence denied.
E 13. In reply to para 13, it is submitted that the allegations are
totally false as no such act was committed by 201 CoBRA
(SAF) Bn. and hence denied.
14. In reply to para 14, it is submitted that the allegation is
totally false as no such acts were committed by 201 CoBRA
F (SAF) Bn. No person was beaten, stabbed or killed by the
Force personnel. No property was looted or burnt. However,
the vagueness or truthfulness of the allegations leveled in
the petition is borne out by the fact that the name and number
of the petitioner given in the para does not tally with the list
G of petitioners in the cause title of the Writ Petition.
15. In reply to para 15, it is submitted that the allegation is
totally false as no such act was committed by 201 CoBRA
(SAF) Bn. However, the name and number of the petitioner
given in the para does not tally with the list of petitioners in
the writ petition.
H
HIMANSHU KUMAR AND OTHERS v. STATE OF 753
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
16. In reply to para 16, it is submitted that the Force of 201 A
CoBRA (SAF) Bn. did not carry out any operation in village
Nulkatong on 1/10/09. Hence, the allegation against this Unit
is totally incorrect and baseless. However, the name and
number of the petitioner given in the para does not tally with
the list of petitioners in the writ petition.
B
17. In reply to para 17, it is submitted that 201 CoBRA (SAF)
Bn. personnel did not kill villagers or burnt their houses.
However, on 17/9/09 201 CoBRA (SAF) Bn. personnel carried
out operation in village Gachanpalli during which our
personnel were ambushed by heavily armed naxalites and the
personnel retaliated back in self defence. C
18. In reply to para 18, it is submitted that 201 CoBRA (SAF)
Bn. personnel did not kill villagers nor burnt their houses.
However, on 17/9/09 201 CoBRA (SAF) Bn. personnel carried
out operation in village Gachanpalli during which our
personnel were ambushed by heavily armed naxalites and the D
personnel retaliated back in self defence.
19. In reply to para 19, it is submitted that 201 CoBRA (SAF)
Bn. personnel did not kill villagers or burnt their houses.
However, on 17/9/09 201 CoBRA (SAF) Bn. personnel carried
out operation in village Gachanpalli during which our E
personnel were ambushed by heavily armed naxalites and the
personnel retaliated back in self defence.
20. In reply to para 20, it is submitted that the allegation is
false and denied. Although 201 CoBRA (SAF) had carried
out operation in village Gompada on 1/10/09 but no such act F
was committed by SAF personnel.
21. In reply to para 21, it is submitted that one of the naxalites
who was wearing a black naxal uniform and carrying a
muzzle loading gun was killed in encounter with this Unit
personnel at the time of unearthing of naxalites gun factory G
at Singhanmadugu on 17/09/09. His dead body was later on
brought to PS Chintagufa and handed over to Police Station
for post mortem and further action. A Copy of the photograph
of the said militant is placed at Annexure R 12. In this
connection FIR No.10/2009 dated 20/9/2009 was also lodged
H
754 SUPREME COURT REPORTS [2022] 11 S.C.R.
A with PS Chintagufa (Dantewada). It is also mentioned here
that while returning back after unearthing the arms factory
of naxalities, our troops were ambushed by naxalites in which
six commandos of this unit lost their precious lives.
22. In reply to para 22, it is submitted that naxalite cadres
B have been often wearing security force uniform to terrorize
the masses to defame the security forces and demoralize them
and as such the allegation is false and denied.
23. In reply to para 23, it is submitted that 201 CoBRA (SAF)
troops did not carry out any operation in village Onderpara.
C Hence, the allegation is denied.
24. No comments are offered in reply to para 24.
25. In reply to para 25, it is submitted that CRPF is not involved
in any incident as alleged and hence denied.
26. In reply to para 26, it is submitted that this point does not
D pertain to CRPF/ SAF Unit. Hence, the allegation is denied.
27. In reply to para 27, it is submitted that this point does not
pertain to this CRPF/ SAF Unit. Hence, the allegation is
denied.
REPLY ON GROUNDS :
E
28. 28.1: In reply to para 28.1, it is submitted that the grounds
made by the petitioners are false and fabricated because none
of the act mentioned in the Writ Petition have been committed
by the troops of this SAF/CRPF unit. However, being a
specialized armed force of the union, the troops are deployed
F to enforce the law of the land and to protect the life and
property to common people. There are frequent reports of
civilian killings and torture of innocent by naxalite cadres
wearing security forces’ uniforms to terrorize the masses in
the name of maoist ideology and they might have indulged in
such acts to defame the security forces and demoralize them
G
with the intention to stall and derail operations in their strong
hold areas.
28.2: No comments are offered in reply to para 28.2.
28.3 to 28.9: No comments are offered in reply to para 28.3
to 28.9
H
HIMANSHU KUMAR AND OTHERS v. STATE OF 755
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
PRAYER : A
a) That the petitioner’s request for CBI enquiry appears to be
intended to delay the criminal investigation already being
conducted by the State police against the naxalites. Hence,
the prayer deserves not to be entertained.
B
b) It is most respectfully and humbly submitted that the
consideration and/or granting the petitioners’ prayer for
award of compensation to such naxalite who was in naxalite
uniform as well as having muzzle loaded gun as killed by the
201 CoBRA/SAF Bn in village Singhanmadugu is totally
misplaced and it is bonafide believed that Govt. funds i.e. the C
tax payers’ hard earned money does not deserve to be spent
for awarding compensation to those who have lost lives while
being part of insurgent naxal acts which will in turn demoralize
the Forces fighting naxalites whose duty is to protect the life
and property of the people and to safeguard integrity and
D
security of the country. Hence, this prayer of the petitioners
also deserves to be rejected. Hence, Writ Petition deserves to
be dismissed with heavy cost on the petitioners for having
urged and alleged baseless, false and unsustainable
allegations.”
E
23. We also take notice of one further affidavit-in-reply filed on
behalf of the respondent no.3, duly affirmed by Shri Barun Kumar Sahu,
Director (Personnel), Police-II Division, Ministry of Home Affairs. We
quote the averments made therein as under :
“2. I say that I have read and understood the contents
F
mentioned in the affidavit dated 22.04.2010 filed by the
Petitioner and that the petitioner has filed the affidavit under
reply to prove the existence of No.9 Smt. Madavi Hurre in the
Writ Petition as she could not be produced before the Hon’ble
Court by the petitioner. It is stated that the petitioner has filed
several copies of the pages of the Tehalka magazine on the G
basis of which he is trying to prove the existence of the
petitioner in question. The magazine or newspaper are not
the primary evidence or authentic proof of any material or
fact and have no exclusive evidentiary value. Hence, the
production of copies of the pages of Tehalka magazine are H
756 SUPREME COURT REPORTS [2022] 11 S.C.R.
A inadmissible and same are opposed. Also that the petitioner
no.1 has been trying since the very beginning to blame the
security Forces, fighting with naxalities, with the imaginary
charge of atrocities/ arsons which they have miserably failed
in proving and also trying to unnecessary lengthen the
litigation by putting up various miscellaneous applications
B
without any relevance to the case. The manner in which false
allegations have been made from time to time against the
security forces is a matter of record. The whole attempt is to
demoralize the security forces by tarnishing their image and
shaking their confidence. It is also pertinent to mention here
C that the authenticity of Tehalka magazine, which the petitioner
is relying upon cannot believed as the dates mentioned in
magazine are not correct.
PARAWISE REPLY :
1. The contents of para 1 need no comments.
D
2 The reply to the contents of para 2 it is stated that the name
of Madavi Hurre is only mentioned in the list of petitioners
and there is no mention in the writ petition that she has suffered
any loss or injury at the hands of security forces. The Writ
petition does not make a mention that she is the wife of Madvi
E
Deva. The petitioner has tried to prove her existence on the
basis of her thumb impression on the vakalatnama but the
document is not produced as Annexure. Hence, the fact cannot
be admitted as proved. The petitioner has failed to produce
the witness in the court. If she is available, there should not
F be any objection in her production before the Hon’ble court.
The fact of visit of the Madavi Hurre to Delhi on 20.10.2009
is not proved at all. On the other hand it is also humbly stated
that all the 10 petitioners produced have not blamed the
CRPF/ COBRA (SAF) of any of the killing/ atrocities as alleged
G by the petitioner no.1 in the writ petition.
3. In reply to the contents of para 3 to 8 , I say that the Tehalka
Magazine (7th November, 2009 at P/37) have published the
photograph of a lady with a child in her lap. The magazine
describes her to be resident of village Singanmadgu whereas
H she has been shown as resident of village : Ganchapalli now
HIMANSHU KUMAR AND OTHERS v. STATE OF 757
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
the petitioner has also added that she is resident of Village A
Singanpalli/Singanmadgu. The contradiction in name of
villages is apparent and hence unbelievable. The magazine
has stated in this report that the incident had taken place on
October 17, which is wrong and magazine have published it
without verifying the facts which clearly shows that the main
B
intention of the petitioner is to malign the image of the security
Forces, CRPF/COBRA (SAF) engaged in anti-naxal
operations, it is also pertinent to mention here that the
Petitioner has only mentioned names of persons who
according to him met the lady and interviewed her but still
could not establish her signing the writ petition and hence C
cannot be relied upon.
4. In reply to the contents of para 9, I say that in almost all
the applications/affidavits, the petitioner no.1 is seen to be
initiating or at times one Shri Pushkar Raj of PUCL is seen to
be asking for impleadment on various reasons the same which D
shows that the other petitioners i.e. 2 to 13 have been
unnecessarily included on the behest where as10 petitioners
who were produced before the Hon’ble Court have not blamed
the CRPF/COBRA (SAF) personnel for any of the atrocities
committed as alleged in the writ petition. A copy of the list of
applications made by petitioner no.l& Shri Pushkar Raj is E
enclosed herewith as Annexure-A/1.
It is also pertinent to mention here that on 06.04.2010, in an
incident, the naxalites have killed 75 CRPF personnel. The
death of 75 CRPF personnel and one civil police personnel
on 6/4/2010 clearly indicates the menace of naxalism in State F
of Chattisgarh and the troops are engaged to fight naxalism
to protect the integrity and in fact the very existence of the
democratic system. Now the petitioner with his interviews to
various electronic media channels like NDTV India through
its various discussion forunis has tried to malign the image G
of the CRPF/COBRA (SAF) by blaming them whereas the
matter is subjudice before the Hon’ble Supreme Court, hence,
the petitioner himself had taken up the role of Judge in this
matter, which clearly shows the intentions of the petitioner
no. 1 in the matter.”
H
758 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 24. We may now look into the affidavit duly affirmed by Shri
Rajesh Kukreja, Additional Superintendent of Police, Headquarter
Dantewada, Chhattisgarh. In this affidavit, the information as regards
the compensation paid to the members of the family of the deceased has
been furnished. We quote the same as under :
B “3. It is submitted that in the affidavit dated 23.04.2010 the
petitioner has stated that Madvi Hurre is a resident of
Singanpalli/Singanmadgu which is different from the name
of the village (Gacchanpalli) mentioned in the Writ Petition.
In the same affidavit the petitioner has mentioned Late Madvi
Deva was the husband of petitioner no.9. This is different
C from the name of husband mentioned in the Writ Petition which
is Madvi Hurra.
4. It is submitted that on further investigation regarding
petitioner no. 9 has revealed that there is no such person by
the name of Madvi Hurre in village Singanpalli/ Singanmadgu.
D This is also confirmed by the Tehsildar, Konta Sub Division.
A copy of report and certificate issued by the Tehsildar Konta,
Sarpanch and Secretary of Burkalanka Gram Panchayat and
Secretary Gram Panchayat Pentapar is collectively enclosed
and as marked as Annexure R-1. There is no such person as
E per the voter’s list of village Gacchanpalli and Singanmadgu.
A copy of voters list of Village Ganchapalli and Singanmadgu
are collectively enclosed herewith and the same is marked as
Annexure R-2.
5. It is further submitted that further investigation and
F enquiries have revealed that the petitioner No.6 is Madvi Pojja
is still in Andhra Pradesh.
6. It is submitted that a sum of Rs.4,00,000/- has been
sanctioned to be paid to the petitioner no.2 Soyam Rama vide
Collector Dantewada order no. 752 dated 4.03.2010 as
G compensation for death of four members of his family.
7. It is submitted that a sum of Rs.1,00,000/- has been
sanctioned to be paid to the petitioner no. 4 Madvi Hidma
son of Madvi Podiya vide Collector Dantewada order no.
756 dated 4.03.2010 as compensation for death of his cousin
brother of his family.
H
HIMANSHU KUMAR AND OTHERS v. STATE OF 759
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
8. It is submitted that in the 164 statement recorded on A
11.03.2010, the petitioner no. 5 (Madvi Sukda) has stated
that his son was killed three years ago whereas in the
complaint filed with the writ petition he has stated that his
son was killed on 17.09.2009. Since the two statements are
different hence further investigation is being conducted to
B
arrive at the truth. For the reasons mentioned above no
compensation has been paid to petitioner no. 5.
9. It is submitted that a sum of Rs.One lakh has been sanctioned
to be paid to the family member (Dudhi Bhima) of petitioner
no. 6 vide Collector Dantewada order no. 756 dated
4.03.2010 towards compensation for death of his cousin C
brother of his family.
10. It is submitted that a sum of Rs. Two lakh has been
sanctioned to be paid to the petitioner no. 7 vide Collector
Dantewada order no. 752 dated 4.03.2010 as compensation
for death of two members of his family. D
11. It is submitted that compensation has not been paid to
petitioner no. 3 & 8 since investigation is being carried out.
12. It Is submitted that a sum of Rs.1,00,000/- has been
sanctioned to be paid to the Petitioner no. 10 (Madavi Raja)
E
vide Collector — Dantewada Order No.756 dated 04.03.2010.
13. It is submitted that a sum of Rs.1,00,000/- has been
sanctioned to be paid to the Petitioner No.11 - Smt. Madkam
Muke vide Collector - Dantewada Order No.756 dated
04.03.2010.
F
14. It is submitted that a sum of Rs.1,00,000/- has been
sanctioned to be paid to the Petitioner No.12 — Shri Kowasi
Kosa vide Collector - Dantewada Order No.756 dated
04.03.2010.
15. It is submitted that a sum of Rs.10,000/- has been G
sanctioned to the Petitioner No.13 - Smt. Sodi Sambo for
sustaining injury vide Collector - Dantewada Order No.889
dated 11.03.2010.
16. It is respectfully submitted that further investigation in
the cases registered are being carried out by the State CID.”
H
760 SUPREME COURT REPORTS [2022] 11 S.C.R.
A SUMMATION OF THE STANCE OF THE RESPONDENTS:
25. Thus, if we have to sum up the stance of the respondents,
then the same is that the entire case put up by the writ petitioners
portraying the incidents of 17th September 2009 and 1st October 2009
respectively as a brutal massacre by the members of the different Police
B and Paramilitary Forces is palpably false. All the averments made in the
memorandum of the writpetition are exfacie false and fabricated. An
attempt has been made to mislead thisCourt. False allegations have been
levelled on the police and the paramilitary forces with a malafide intention
to change the narrative of the incidents, i.e. to portray the dreaded Left
Wing Extremists (Naxals), who were waging an armed rebellion against
C the security forces of the country and threatening the sovereignty and
integrity of the country, as innocent tribal victims being massacred by
the security forces.
26. It is the case of the respondents that this false narrative of the
massacre of innocent tribals by the security forces was created to
D somehow achieve immediate cessation of the advancement of the
security forces against the concerned armed Left Wing Extremists. The
purpose and motive of the present writ petitioners was also to derail the
ongoing efforts of the security forces in neutralizing the Left Wing
Extremism movement and the armed Left Wing Extremists; to deprive
E the dignity and credibility of the security forces; to lower the morale of
the security agencies by portraying them as demons and national villains,
i.e. slayers of innocent tribal people; and to foist false cases on them so
that in future such false cases would act as a deterrent. In short, the
case of the respondent is that the entire writ petition is nothing but a
fraud played upon with the Court.
F
27. All the First Information Reports were thoroughly investigated
and charge sheets have been filed in the concerned courts for different
offences under the Indian Penal Code, 1860 (for short, “the IPC”) and
other enactments. All the accused persons named in the charge sheets
have been shown as absconding. It is not that the investigation has not
G been carried out. The filing of the charge sheets is prima facie material
to put the accused persons named therein on trial. The charge sheets
filed against the accused persons named therein bear eloquent testimony
to the fact that the allegations levelled against the police and paramilitary
forces are absolutely false and reckless.
H
HIMANSHU KUMAR AND OTHERS v. STATE OF 761
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
28. The petitioners have miserably failed to point out as to in what A
manner the investigation carried out could be said to be perfunctory.
Without even studying the charge sheets how can it be asserted on their
part that nothing has been done by the investigating agencies. Even for
the purpose of making out a case for further investigation, the infirmities
in the charge sheets must be pointed out to the satisfaction of the Court.
B
Nothing of that sort has been pointed out to this Court.
SUBMISSIONS ON BEHALF OF THE WRIT
PETITIONERS :
29. Mr.Colin Gonsalves, the learned senior counsel appearing for
the petitioners, vehemently submitted that the alleged brutal incidents of
C
killing of the tribals should be investigated through the CBI. He would
submit that the family members of the petitioners were killed in cold-
blood by the Chhattisgarh Police, Special Police Officers (SPOs)
appointed by the Chhattisgarh Government in collusion with the activists
of the SalwaJudum (group of vigilantes sponsored by the Chhattisgarh
Government) and the Central Paramilitary Forces consisting of the CRPF D
and the CoBRA Battalion, in two separate attacks dated 17th September
2009 and 1st October 2009 respectively.
30. Mr.Gonsalves would submit that the State of Chhattisgarh
and the Chhattisgarh Police have not done anything so far despite the
fact that the eye-witnesses have identified the accused persons in some E
of the cases. He would submit that not a single eye-witness has been
called so far for the purpose of recording of his statement. The learned
senior counsel would submit that the only hope is the CBI.
31. In such circumstances referred to above, Mr.Gonsalves prays
that this Court may issue a mandamus directing the CBI to carry out the
F
investigation of all the First Information Reports referred to above.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS :
32. Mr.Tushar Mehta, the learned Solicitor General appearing for
the Union of India, on the other hand, has vehemently opposed the present
writpetition. He would submit that the petition deserves to be rejected G
not only with exemplary costs, but each of the petitioners should be held
guilty of levelling false charges of offence and of giving false and
fabricated evidence before this Court with an intention to procure
conviction for a capital offence or for life imprisonment against the
personnel of security forces with a view to screen off the actual offenders
of the Left Wing (Naxal) terrorism. H
762 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 33. Mr.Mehta would submit that if such palpably false and
motivated writ petition at the instance of an NGO is entertained by this
Court, then the same may lead to disastrous results as the very morale
of the different police and paramilitary forces fighting against the Naxals
would be shaken.
B 34. Mr.Mehta, in the course of his submissions, highlighted a very
shocking picture as to how the Naxalites, over a period of time, have
brutally killed the members of the police forces. According to Mr.Mehta,
the mastermind behind this writpetition is the petitioner no.1 claiming to
run an NGO for the welfare and interest of the tribals. According to
C Mr.Mehta, the petitioners nos.2 to 13 are absolutely rustic and illiterate
tribals. It is at the instigation of the petitioner no.1 that they might have
thought fit to join as the petitioners.
35. Mr.Mehta would submit that this petition is of the year 2009.
Almost 13 years have passed by till this date. However, it is very shocking
D to know that none of the petitioners have any idea about the investigation
which has already been carried out by the police with respect to each of
the FIRs.
36. Mr.Mehta invited the attention of this Court to one order passed
by a Coordinate Bench dated 15th February 2010. The same reads thus:
E
“O R D E R
The Chief Secretary, in terms of our directions, has filed his
Report, which shall form part of the record and to be put in a
sealed cover.
F On 8.2.2010, after hearing the parties, we have issued the
following directions :
“Learned senior counsel appearing on behalf of the
petitioners submits that after the adjournment of this Writ
Petition on 5th February, 2010 Petitioner Nos. 2 to 13 were
G
illegally taken into custody or caused their disappearance
by the respondent-police. Learned counsel appearing for
the State of Chhatisgarh seriously disputes the correctness
of the assertion made by the learned senior counsel about
the police being responsible for causing the disappearance
H of Petitioner Nos. 2 to 13.
HIMANSHU KUMAR AND OTHERS v. STATE OF 763
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
We at this stage do not propose to express any opinion A
whatsoever on this issue relating to the alleged
disappearance of the Petitioner Nos. 2 to 13.
Be that as it may, we would like to examine the Petitioner
Nos. 2 to 13 and hear their version as to what transpired
in the matter after we have heard and adjourned the B
hearing of this petition on 5th February, 2010 or prior
thereto.
The interest of justice requires the production of Petitioner
Nos. 2 to 13 in this Court. We, accordingly, direct
Respondent No.1 to produce the Petitioner Nos. 2 to 13 in C
this Court on 15th February, 2010 for the purpose of
further hearing of this petition.
The Chief Secretary, State of Chhatisgarh is directed to
ensure the compliance of this Order and submit his own
report on or before 15th February, 2010.” D
Pursuant to our directions the first respondent produced six
out of 13 petitioners, namely, Shri Soyam Rama, Shri
KunjamHidma, Shri MadaviHidma, Shri SoyamDulla, Smt.
MuchkiSukri and Smt. Sodhi Sambo (Petitioner Nos. 2, 3, 4,
7, 8 and 13 respectively). We are informed that the six E
petitioners who are produced before us today speak only
‘Gondi language’ and no other language. In the
circumstances, it would not be possible for us even to elicit
any information from them and interact with them.
We are of the view that their security is a paramount F
consideration.
It is equally important that they should be allowed to express
themselves freely without being influenced by any outside
agencies or individuals.
In the circumstances, we consider it appropriate to request G
Mr. G.P. Mittal, District Judge-I, Tis Hazari, Delhi to record
their statements in the presence of the interpreter, namely,
Mohan Sinha, as well as the first petitioner Mr. Himanshu
Kumar, who is stated to be conversant with their language.
The District Judge shall first satisfy to himself that the
H
764 SUPREME COURT REPORTS [2022] 11 S.C.R.
A petitioners, who are required to be examined by him are not
under any pressure or threat from any quarter whatsoever.
We also request the District Judge to ensure their safety as
along as they are in Delhi, for which purpose the Union of
India shall comply with such directions as may be issued by
the District Judge from time to time. The learned Attorney
B
General for India has stated before us that in terms of the
directions to be issued by the District Judge, the Union of
India shall ensure their safety and protection.
We also permit the learned counsel for the petitioner Shri
Colin Gonsalves or any other lawyer to be nominated by him
C to be present in the proceedings before the District Judge
along with counsel for the Union of India and the counsel
for the State of Chhatisgarh.
We make it very clear that the District Judge shall proceed to
record the statement only after being satisfied to himself that
D the persons produced before him are free from any pressure
and are capable of making statement freely without being
influenced by any of the outside agency/parties. The learned
District Judge is requested to arrange for a videography of
the entire proceedings.
E The Registrar Judicial will immediately convey this order to
the District Judge. Copy of this order shall also be given to
the counsel for all the parties. List this matter tomorrow at 1-
15 p.m. in Court for further directions.”
37. According to Mr.Mehta, in context with the aforesaid order,
F various statements of the petitioners came to be recorded by the District
Judge-I and Sessions Judge, Delhi. The plain reading of such statements
of the petitioners would indicate that they have no idea as to what has
been stated in the memorandum of the writ petition and for what reasons
the writ petition came to be filed. The statements recorded by the Judicial
G Officer in accordance with the directions issued by a Coordinate Bench
of this Court vide the order referred to above, destroys the entire case
put up by the writ petitioner no.1.
38. Mr.Mehta urged before this Court to take a strict view of the
matter. Mr.Mehta also pointed out that the Union of India has filed an
Interlocutory Application No.52290 of 2022 seeking appropriate action
H
HIMANSHU KUMAR AND OTHERS v. STATE OF 765
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
against the petitioners. We shall look into and deal with the Interlocutory A
Application a little later.
39. In such circumstances referred to above, Mr.Mehta prays
that this writ petition may be rejected with exemplary costs and
appropriate action may be taken against the writ petitioners.
SUBMISSIONS ON BEHALF OF THE STATE OF B
CHHATTISGARH :
40. Mr. Sumeer Sodhi, the learned counsel appearing for the State
of Chhattisgarh, has also vehemently opposed this writ petition. In a
written note provided to us, Mr.Sodhi has highlighted in what manner the
Chhattisgarh Police carried out the investigation of both the incidents C
and also the details as regards the registration of the FIRs. The same
reads thus :
“Crime No.: 04/2009
Police Station: Bhejji D
Date of Registration: 18/09/2009
Sections: 147, 148, 149, 307 IPC; 25, 27 Arms Act.
Date of Incident: 17.09.2009.
Complainant: Shri Ravindra Singh, Assistant Commdt. 201 E
Cobra Bn.
Accused: Unknown Maoist Cadres and Sangam Members
Allegations: On information about the presencc of Naxal
cadres, an anti-naxal operation was launched on 16.09.2009
from PS Bhejji towards Gachchanpalli, Aitrajpad and F
Entapad by the Security forces. Naxals made a life threatening
attack on security forces near Gachchanpalli and run away
putting their shelter on fire.
Gist of Final Report : Even after a long search no accused
were found and on no possibility of finding in near future, G
closure report was filed before the Hon’ble court on
20.10.2010.
Present Status: According to the closure report presented by
the investigating officer, even after a long search no accused
were found and on no possibility of finding in near future H
766 SUPREME COURT REPORTS [2022] 11 S.C.R.
A closure report is accepted on 26.10.2010 by the learned chief
Judicial Magistrate.
Crime No.: 10/2009 :
Police Station: Chintagufa
B Date of Registration: 20/09/2009
Sections: 395, 397, 147, 148, 149, 302 IPC; 25, 27 Arms
Act; 3,4 Explosive. Subs. Act.
Date of Incident: 17.09.2009 and 18.09.2009.
Complainant: Shri PremprakashAwadhiya, Sub Inspector, PS.-
C
Sukma
Accused: Unknown Uniformed female and male naxalites
about 200-300.
Allegations: On 16/09/2009, the police party left for
D Singanmadgu for Anti Naxal operation from police station
Chintagufa. On the morning of 17/09/2009, when the party
reached the dense forests of Singanmadgu, the camp of
Naxalites were seen and exchange of fire took place. After
encounter in search of the place of incident weapons and a
body of naxal was recovered. Then after a while one km ahead
E 200-300 unknown Naxalites again cordoned the police party
and attacked the Security forces, in which - Assistant
Commandant Shriram Manoranjan, Assistant Commandant
Shri Rakesh Kumar Chaurasiya, Sub Inspector Shri Sushil
Kumar Varma, Head-Constable Lalit Kumar, Constable
F Manoharlal Chandra and Constable Uday Kumar Yaday of
Cobra Company were martyred and four others Constable
Satpal, Constable Harish Thakur, Constable Kamalvoshe and
Constable Mohammad Husain Quraishi were also injured.
Gist of Final Report: According to the investigating officer,
G even after a long search no accused were found and since
there was no possibility of finding in near future, closure report
has been filed before the Hon’ble Trial court on 20.10.2010.
Present Status: According to the closure report presented by
the investigating officer, even after a long search no accused
H were found and on no possibility of finding in near future
HIMANSHU KUMAR AND OTHERS v. STATE OF 767
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
closure report is accepted on 26.10.2010 by the learned Chief A
Judicial Magistrate.
Crime No.: 06/2010
Police Station: Bhejji
Date of Registration: 21/02/2010 B
Sections: 147, 148, 149, 302 IPC; 25, 27 Arms Act.
Date of Incident: Approximately three-four months ago at 7.00
am in the morning from the date of incident, (therefore,
probable incident here is 01.10.2009)
C
Complainant: Shri MaadviHadma Address: Gachhanpalli
(Petitioner No. 4)
Accused: 20-25 Unknown uniformed person holding gun and
banda.
Absconding accused- D
1-Venktesh s/o Unknown
2-Rajesh alias Joga s/o Unknown
3-Vijay alias Vijay alias Ekanna
E
4-Savitri Bhai w/o Unknown
5-Manila w/o Unknown
6-Bhima s/o Unknown
7-Jayram s/o Unknown
F
8-Samita w/o Chandrana
9-Bhaskar alias Rajesh s/o Venkteshwerlu
10-Kavita D/o jayram
Allegations: On 21/02/2010 upon report of applicant G
MadviHadma, resident of Gachchanpalli, FIR No.06/2010 u/
s 147, 148, 149, 302 IPC & 25, 27 Arms Act was registered at
Police Station Bhejji against unknown naxalites for murder
of Madvi Hidma, MadviJoga, Kawasi Ganga, Madkami Chula
& Dudhi Muye.
H
768 SUPREME COURT REPORTS [2022] 11 S.C.R.
A Gist of Final Report: Chargesheet filed on 09/09/2010 against
10 named absconding accused u/sec.147, 148, 149, 302 IPC;
25, 27 Arms Act.
Present Status: Permanent warrant has been issued against
the absconding accused by the Hon’ble Judicial Magistrate
B First Class Konta.
INCIDENT 2: 01.10.2009 (Gompad)
6. In respect of the incident dated 01.10.2010 that took place
at Gompad, the State of Chhattisgarh has already registered
following FIRs against the offences committed on that day.
C The details of the FIRs are:
Crime No.: 05/2009
Police Station: Bhejji
Date of Registration: 25/11/2009
D
Sections: 147, 148, 149, 307 IPC; 25, 27 Arms Act.
Date of Incident: 01.10.2009.
Complainant: Shri MatramBariha, Head Constable, PS.-
Bhejji
E Accused: Unknown Uniformed Naxalites in large numbers.
Allegations: On the information of increased activities and
camps of armed naxalites in Gompad village PS Bhejji, three
teams of Cobra 201 Bn departed on an anti naxal operation
on 30/09/2009 from injram. On 01.10.2009 this combined
F party was ambushed by Naxalites in Gompad.
Gist of Final Report: According to the investigating officer,
even after a long search no accused were found and on no
possibility of finding in near future closure report is filed
before the Hon’ble court on 20.10.2010
G
Present Status : According to the closure report presented by
the investigating officer, even after a long search no accused
were found and on no possibility of finding in near future
closure report is accepted on 26.10.2010 by the learned Chief
Judicial Magistrate.
H
HIMANSHU KUMAR AND OTHERS v. STATE OF 769
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
Crime No.: 01/2010 A
Police Station: Bhejji
Date of Registration : 08/01/2010
Sections : 396, 397 IPC, 25, 27 Arms Act.
Date of Incident : Approximately a week before Deewali. B
Complainant : Shri Soyam Rama (Petitioner No.2)
Accused : Unknown Armed uniformed person 20-25
Absconding accused-
C
1-Venktesh s/o Unknown
2-Rajesh alias Joga s/o Unknown
3-Vijay alias Vijay alias Ekanna
4-Savitri Bhai w/o Unknown
D
5-Manila w/o Unknown
6-Bhima s/o Unknown
7-Jayram s/o Unknown
8-Samita w/o Chandrana
E
9-Bhaskar alias Rajesh s/o Venkteshwerlu
10-Kavita D/o Jayram
Allegations: On 08/01/2010 upon information of applicant
Soyam Rama s/o SoyamKanna resident Gompad village, a
FIR-01/2010 u/s 396, 397 IPC, 25, 27 Arms Act was registered F
in PS Bhejji and taken into investigation against unknown
naxalites causing murder of 7 deceased named - Madvi Bazar,
MadviSubbi, MadviMutti, KattamKanni, Madvi Enka,
SoyamSubba and Soyam Jogi.
Gist of Final Report: Chargesheet filed on 09/09/2010 against G
10 named absconding accused u/s 396, 397 IPC; 25, 27 Arms
Act.
Present Status: Permanent warrant has been issued against
the absconding accused by the Hon’ble Judicial Magistrate
First Class Konta. H
770 SUPREME COURT REPORTS [2022] 11 S.C.R.
A Crime No.: 07 2010
Police Station: Bhejji
Date of Registration: 22/02/2010
Sections: 147, 148, 149, 302 IPC, 25, 27 Arms Act.
B Date of Incident: A approximately five months ago in the
morning from the date of incident, (therefore, probable
incident here is 01.10.2009)
Complainant: Shri. KomramLachcha, Address-Chintagufa
Accused: 20-25 Unknown uniformed person holding gun and
C banda.
Absconding accused-
1-Venktesh s/o Unknown
2-Rajesh alias Joga s/o Unknown
D 3-Vijay alias Vijay alias Ekanna
4-Savitri Bhai w/o Unknown
5-Manila w/o Unknown
6-Bhima s/o Unknown
E 7-Jayram s/o Unknown
8-Samita w/o Chandrana
9-Bhaskar alias Rajesh s/o Venkteshwerlu
10-Kavita D/o Jayram
F Allegations: On 22/02/2010 upon report of applicant
KomramLachcha, resident of Chintagufa, FIR No.07/2010 u/
s 147, 148, 149, 302 IPC & 25, 27 Arms Act was registered at
PS - Bhejji against unknown naxalites for murder of Komram
Mutta.
G Gist of Final Report: Chargesheet filed on 09/09/2010 against
10 named absconding accused u/sec.147, 148, 149, 302 IPC
& 25, 27 Arms Act.
Present Status: Permanent warrant has been issued against
the absconding accused by the Hon’ble Judicial Magistrate
H First Class Konta.”
HIMANSHU KUMAR AND OTHERS v. STATE OF 771
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
41. Mr.Sodhi also highlighted the following contradictions and A
anomalies in the case of the petitioners :
“1. Hot oil theory retracted:
Petitioner claimed in the Writ Petition at Page E of the
Synopsis and Page 9 of the Petition Paper book that one
Muchki Deva (60yrs) of Ondhepara was grazing cattle on B
the morning of 17 th September. He was caught, beaten and
dragged into the village by security forces. He was hanged
upside down from a tree and a pot of oil was lit below and he
was dropped into it. As a result, the upper part of his body
was severely burnt and he had developed maggots in his
C
wounds.
However, thereafter the Petitioners filed an Application before
this Hon’ble Court dated 02.02.2010 bearing Crl.M.P. No.
3173/2010 seeking directions from this Hon’ble Court. In the
said Application, the Petitioners retracted the Hot Oil Theory
in Paragraph 18 of the Application stating that it was a D
mistake that took place during translations. It was now
claimed that Muchki was burnt by electrocution by attaching
wires to his head.
It is important to note that the present Writ Petition was filed
on around 27.10.2009, notice by this Court was issued on E
23.11.2009 on the basis of the contents of the Writ Petition,
and the Interlocutory Application bearing Cri. MP No.
3173.2010 was moved on 02.02.2010. Therefore, it is pertinent
to note that Petitioners have changed their stand multiple times
in respect of serious allegations levelled against the defence
F
forces of the country and the Chhattisgarh Police Department.
2. Contradictions in complaint vis-a-vis Sec. 164 Statements
about killings -
Petitioner No. 5 in the complaint filed alongwith the present
Writ Petition at Page 35 of the Paperbook has alleged that G
his son was killed on 17.09.2009 by SPOs. It is pertinent to
note that the State of Chhattisgarh in its affidavit dated
30.08.2010 has stated in paragraph 8 that in Statement of
Petitioner No. 5 recorded under Section 164 of the Criminal
Procedure Code, 1973 on 11.03.2010, he has stated that his
son was killed three years ago. H
772 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 3. False narrative sought to be created in Petitioner’s Written
submissions -
A plain reading of Paragraph 13 of the Written Submissions
filed by the Petitioner creates a brutal impression of the security
forces to the effect that Petitioner No.13’s two year old
B grandchild was killed after chopping off the child’s fingers.
The purported cyclostyle complaint of Petitioner No. 13 is at
Page 53 whereas her statement recorded under orders of this
Court can be found at Page 171 of the Paperbook. A perusal
of both these documents reveals that no such case was ever
made out by Sodhi Sambo i.e. Petitioner No. 13.
C
4. Non-corroboration of contents of Writ Petition with
statements made by the Petitioners before District Judge
appointed by this Court —
Looking at the seriousness of the allegations contained in
D the Writ Petition, which were vehemently denied by the State,
this Court directed that statements of Petitioner Nos. 2-13 be
recorded by a District Judge at New Delhi. A bare perusal of
the statements made by the Petitioners reveal that none of the
Petitioners corroborate the allegations made in the writ
petition. Further the petitioners do not even say that their
E relatives were killed by uniformed persons. -
Ref can be made to the Statements - Page 154 onwards
5. No Affidavit of authorisation of Petitioners No. 2 to 13
It is pertinent to note that the present petition has been filed
F by the Petitioner No. 1 (Himanshu Kumar) on behalf of
Petitioner No. 2 to 13. However, there is no affidavit on record
whereby Petitioners No. 2 to 13 have authorised Petitioner
No. 1.”
42. In such circumstances referred to above, Mr.Sodhi prays that
G there being no merit in the present writpetition, the same may be rejected
with exemplary costs and appropriate actions against each of the writ
petitioners for misleading the Court and fabricating false evidence.
ANALYSIS :
43. Having heard the learned counsel appearing for the parties
H and having gone through the materials on record, the only question that
HIMANSHU KUMAR AND OTHERS v. STATE OF 773
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
falls for our consideration is, whether any case has been made out by A
the writ petitioners for the investigation of the two incidents through the
CBI.
POSITION OF LAW :
44. It is now settled law that if a citizen, who is a de facto
complainant in a criminal case alleging commission of cognizable offence B
affecting violation of his legal or fundamental rights against high
Government officials or influential persons, prays before a Court for a
direction of investigation of the said alleged offence by the CBI, such
prayer should not be granted on mere asking. A Constitution Bench of
this Court, in the case of the State of West Bengal and others v. C
Committee for Protection of Democratic Rights, West Bengal, reported
in (2010) 3 SCC 571, has made the following observations pointing out
the situations where the prayer for investigation by the CBI should be
allowed :
“70.… In so far as the question of issuing a direction to CBI D
to conduct investigation in a case is concerned, although no
inflexible guidelines can be laid down to decide whether or
not such powers should be exercised, but time and again it
has been reiterated that such an order is not to be passed as
a matter of routine or merely because a party has levelled
some allegations against the local police. This extraordinary E
power must be exercised sparingly, cautiously and in
exceptional situations where it becomes necessary to provide
credibility and instil confidence in investigations or where the
incident may have national and international ramifications
or where such an order may be necessary for doing complete F
justice and enforcing the fundamental rights. Otherwise CBI
would be flooded with a large number of cases and with limited
resources, may find it difficult to properly investigate even
serious cases and in the process lose its credibility and
purpose with unsatisfactory investigations.”
G
(emphasis supplied)
45. In the above decision, it was also pointed out that the same
court in Secretary, Minor Irrigation & Rural Engineering Services,
U.P. v. Sahngoo Ram Arya & Anr., (2002) 5 SCC 521, had said that an
order directing an enquiry by the CBI should be passed only when the
H
774 SUPREME COURT REPORTS [2022] 11 S.C.R.
A High Court, after considering the material on record, comes to the
conclusion that such material does disclose a prima facie case calling
for an investigation by the CBI or any other similar agency.
46. In an appropriate case when the Court feels that the
investigation by the police authorities is not in a proper direction, and in
B order to do complete justice in the case and if high police officials are
involved in the alleged crime, the Court may be justified in such
circumstances to handover the investigation to an independent agency
like the CBI. By now it is well-settled that even after the filing of the
charge sheet the court is empowered in an appropriate case to handover
the investigation to an independent agency like the CBI.
C
47. The extraordinary power of the Constitutional Courts under
Articles 32 and 226 respectively of the Constitution of India qua the
issuance of directions to the CBI to conduct investigation must be
exercised with great caution as underlined by this Court in the case of
Committee for Protection of Democratic Rights, West Bengal (supra)
D as adverted to herein above, observing that although no inflexible
guidelines can be laid down in this regard, yet it was highlighted that
such an order cannot be passed as a matter of routine or merely because
the parties have levelled some allegations against the local police and
can be invoked in exceptional situations where it becomes necessary to
E provide credibility and instill confidence in the investigation or where the
incident may have national or international ramifications or where such
an order may be necessary for doing complete justice and for enforcing
the fundamental rights. We are conscious of the fact that though a
satisfaction of want of proper, fair, impartial and effective investigation
eroding its credence and reliability is the precondition for a direction for
F further investigation or re-investigation, submission of the charge sheet
ipso facto or the pendency of the trial can, by no means, be a prohibitive
impediment. The contextual facts and the attendant circumstances have
to be singularly evaluated and analyzed to decide the needfulness of
further investigation or re-investigation to unravel the truth and mete out
G justice to the parties. The prime concern and the endeavour of the court
of law should be to secure justice on the basis of true facts which ought
to be unearthed through a committed, resolved and a competent
investigating agency.
48. The above principle has been reiterated in K.V. Rajendran v.
H Superintendent of Police, CBCID South Zone, Chennai, (2013) 12
HIMANSHU KUMAR AND OTHERS v. STATE OF 775
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
SCC 480. Dr. B.S. Chauhan, J. speaking for a three-Judge Bench of A
this Court held:
“13. …This Court has time and again dealt with the issue
under what circumstances the investigation can be transferred
from the State investigating agency to any other independent
investigating agency like CBI. It has been held that the power of B
transferring such investigation must be in rare and exceptional
cases where the court finds it necessary in order to do justice
between the parties and to instil confidence in the public mind, or
where investigation by the State police lacks credibility and it is
necessary for having “a fair, honest and complete investigation”,
and particularly, when it is imperative to retain public confidence C
in the impartial working of the State agencies. …”
49. Elaborating on this principle, this Court further observed:
“17. … the Court could exercise its constitutional powers for
transferring an investigation from the State investigating agency D
to any other independent investigating agency like CBI only in
rare and exceptional cases. Such as where high officials of State
authorities are involved, or the accusation itself is against the top
officials of the investigating agency thereby allowing them to
influence the investigation, and further that it is so necessary to
do justice and to instil confidence in the investigation or where the E
investigation is prima facie found to be tainted/biased.”
50. The Court reiterated that an investigation may be transferred
to the CBI only in “rare and exceptional cases”. One factor that courts
may consider is that such transfer is “imperative” to retain “public
confidence in the impartial working of the State agencies.” This F
observation must be read with the observations made by the Constitution
Bench in the case of Committee for Protection of Democratic Rights,
West Bengal (supra), that mere allegations against the police do not
constitute a sufficient basis to transfer the investigation.
51. In Romila Thapar v. Union of India, (2018) 10 SCC 753, G
one of us, A.M.Khanwilkar, J., speaking for a three-Judge Bench of this
Court (Dr. D.Y.Chandrachud, J. dissenting) noted the dictum in a line of
precedents laying down the principle that the accused ”does not have a
say in the matter of appointment of investigating agency”. In reiterating
this principle, this Court relied upon its earlier decisions in Narmada
H
776 SUPREME COURT REPORTS [2022] 11 S.C.R.
A Bai v. State of Gujarat, (2011) 5 SCC 79, Sanjiv Rajendra Bhatt v.
Union of India, (2016) 1 SCC 1, E. Sivakumar v. Union of India,
(2018) 7 SCC 365, and Divine Retreat Centre v. State of Kerala, 2008)
3 SCC 542. This Court observed:
“30…the consistent view of this Court is that the accused cannot
B ask for changing the investigating agency or to do investigation in
a particular manner including for court- monitored investigation.”
52. It has been held by this Court in CBI & another v. Rajesh
Gandhi and another, 1997 Cr.L.J 63, that no one can insist that an
offence be investigated by a particular agency. We fully agree with the
C view in the aforesaid decision. An aggrieved person can only claim that
the offence he alleges be investigated properly, but he has no right to
claim that it be investigated by any particular agency of his choice.
53. The principle of law that emerges from the precedents of this
Court is that the power to transfer an investigation must be used
D “sparingly” and only “in exceptional circumstances”. In assessing the
plea urged by the petitioner that the investigation must be transferred to
the CBI, we are guided by the parameters laid down by this Court for
the exercise of that extraordinary power.
54. Bearing in mind the position of law as discussed above, we
E now proceed to consider, whether in the facts of the present case, more
particularly, from the materials on record, it has been prima facie
established that it is a fit case for allowing the prayers of the writ
petitioners for investigation by the CBI.
55. We are really taken by surprise that the learned senior counsel
F appearing for the writ petitioners is absolutely oblivious of the fact that
all the FIRs were investigated by the concerned investigating agencies
and, at the end of the investigation, charge sheets came to be filed in
different courts of the State of Chhattisgarh for the offences under the
IPC like murder, dacoity, etc.
56. We are of the view, having regard to the materials on record,
G
that no case, worth the name for further investigation or re-investigation,
could also be said to have been made out.
57. The filing of the charge sheets at the conclusion of the
investigation into the various FIRs referred to above would indicate that
the alleged massacre was at the end of the Naxalites (Maoists). The
H
HIMANSHU KUMAR AND OTHERS v. STATE OF 777
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
materials collected in the form of the charge sheets substantiate the A
case put up by the respondents that the villagers were attacked and
killed by the Naxalites. There is not an iota of material figuring in the
investigation on the basis of which even a finger can be pointed towards
the members of the police force.
58. If we go by the tenor of the writ petition, it gives an impression B
that proper investigation is not being done and, therefore, the same should
be handed over to the CBI. However, the fact is that the investigation
has already been carried out and charge sheets have been filed.
Unfortunately, neither the learned senior counsel appearing for the writ
petitioners nor any of the writ petitioners, more particularly, the writ
petitioner no.1, the protagonist behind the filing of the present writ petition, C
running an NGO, has any idea about the charge sheets and the materials
collected in the course of the investigation. If the investigation has already
been carried out and charge sheets have been filed and if the court has
to now consider the plea of the writ petitioners, then the same would
become a case of further investigation. D
59. We shall highlight as to why we are saying so as above. We
come back to the order passed by a Coordinate Bench of this Court
dated 15th February 2010. Pursuant to the same, the statements of the
petitioners were recorded by the District and Sessions Judge, Delhi. We
may quote one such statement recorded by the District and Sessions E
Judge of the petitioner no.2, namely, Soyam Rama. We quote the entire
statement as under :
“Present:
Petitioner No.1 Himansu Kumar alongwith Counsel Shri Colin
Gonslaves. Sr. Advocate alongwith Shri Divya Jyoti, Advocate. F
Shri Atul Jha Advocate alongwith Shri D.K. Sinha Advocate,
Counsel for State of Chattisgarh.
Shri P.K. Dey, Advocate on behalf of UOI alongwith Shri
Jitender, Advocate.
Shri R.K. Tanwar, Addl. PP for Govt. of NCT of Delhi G
alongwith Shri Navin Kumar, Asstt.Public Prosecutor
At 3:49 p.m., order dated 15.2.2010 passed by the Hon’ble
Supreme Court in Writ Petition (Cr.) 103/09 titled as Himanshu
Kumar &Ors vs. State of Chattishgarh, was received in my
office titled as Himanshu Kr. & Ors. H
778 SUPREME COURT REPORTS [2022] 11 S.C.R.
A Before that, I had received a telephonic call from Mr.
T.Sivadasan, Registrar (Judicial), informing me about the
order passed by the Hon’ble Supreme Court.
At about 5 pm., the file of the writ petition was received.
Thereafter corrigendum of this order, wherein, name of
B petitioner No.8 was mentioned at page 2 of the order was
also received. At about 6 pm the petitioners had reached my
court No.301. The counsel for the parties aforementioned were
also present. I have talked to the Counsels for the parties as
well as petitioner No.1 in the court and have explained that I
shall be talking to each of the petitioners. Except the
C petitioners, all the persons including the counsel were
requested to move out of the court room. I got down from the
dias and talked to the petitioners through petitioner No.1
Himanshu Kumar. I tried to make petitioners comfortable and
served them with tea and biscuits. I have enquired from them
D if there was any fear or pressure from any quarter which they
have negatived. I have told the petitioners present that I would
be calling them one by one for the purpose of recording their
statements in the adjoining Room No.302 in Tis Hazari Court.
In the first instance, petitioner No.2 Shri Soyam Rama has
E been called. Apart from the abovenamed Counsel for the
parties, petitioner No.1 Shri Himanshu Kumar and interpreter
Shri Mohan Sinha have also been called in room No.302.
Petitioner No.2 has been made to sit in the middle of the
petitioner No.1 and Shri Mohan Sinha, the interpreters.
F Let statement of Sh. Soyam Rama be recorded.
Question: What is your name ?
Ans. : My name is Soyam Rama
Question: Where do you stay?
G Ans. I am resident of village Gompad.
Q. Do you have any proof of identity:
Ans. I do not have one.
Q. Do you know for what purpose you have been brought
H here ?
HIMANSHU KUMAR AND OTHERS v. STATE OF 779
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
A. The persons from our family have died and therefore, I A
have come.
Q. Has anybody put any pressure upon you to make any
particular statement ? Has anybody terrorized you?
Ans. Nobody has pressurized or terrorized me.
B
Q. Do you want to make a statement of your own free will ?
A. Yes.
(I am satisfied that Shri Soyam Rama is not under any pressure
coercion or terror to make the statement.)
C
I feel that the statement being made by him is out of his free
will.
Let the statement be recorded on oath. The oath be also
administered to both the interpreters.
Statement of Shri Soyam Rama s/o Shri SoyamKanna, aged D
38 years r/o village Gopade, on S.A. (through interpreter Shri
Mohan Sinha, in presence of petitioner Himanshu Kumar.
Both the interpreters have also stated on oath that whatever
shall be asked from the witness and his answers shall be
interpreted correctly & truly).
E
On. 1.10.2009, there was a firing in the house of my paternal
uncle MadhviBajaar. In the firing, my paternal uncle
MadviBajaar and paternal aunt Smt. MadviSudviSubi and
niece MadviMuddi and Smt. KartanKatti were killed. One
more person, whose name I cannot tell, was also killed in the
firing. We had run away from the spot and therefore, could F
not see as to who had opened fire.
Question: Are you sure that this firing had taken place on
1.10.2009 or before that ?
Ans. I am sure, the firing had taken place on 01.10.2009.
G
Some other persons were also killed, but not in my presence.
Question: Can you say, if any other weapon was used in the
above mentioned killing or it was only by bullets ?
Ans. In the first instance, the above named four persons were
stabbed with knife and thereafter, they were shot with bullets. H
780 SUPREME COURT REPORTS [2022] 11 S.C.R.
A Question: Can you tell the description of the firearm if the
same was a big gun or a pistol ?
Ans. I cannot tell the same. I heard the shot and then ran
away.
Question: Who had caused the said injury and who had
B opened the fire ?
Ans. The persons who stabbed the above stated persons and
opened fire, had come from the Jungle. I ran away after the
above stated persons were stabbed and fire was opened.
Question: Would you be in a position to identify the assailants.
C
Ans. I would not be in a position to identify them.
Question: Do you want to say anything else.
Ans. I do not want to say anything further.
D Left thumb impression of Sd/-
Soyam Rama District Judge-I/Delhi
15.02.2010
Sh. G.P.MITTAL
E District Judge-I & Sessions Judge
(We have interpreted the questions and answers truly and have
gone through the statement of the witness recorded above.
The same is correct
F
Sd/- Sd/-
(Himanshu Kumar) D.J.,-1/15-2-2010
Sh. G.P.MITTAL
District Judge-I & Sessions Judge
G
Sd/-
(Mohan Sinha)”
(emphasis supplied)
H
HIMANSHU KUMAR AND OTHERS v. STATE OF 781
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
60. All other statements of the rest of the writ petitioners are on A
the same line and footing.
61. When we called upon Mr.Gonsalves to make us understand
as to why his clients had to make such statements before the Judicial
Officer, a very curious reply came from Mr.Gonsalves. According to
Mr.Gonsalves, the entire mode and manner in which the statements were B
recorded by the Judicial Officer of the rank of District and Sessions
Judge was absolutely incorrect. According to the learned senior counsel,
specific questions ought to have been put by the Judicial Officer to each
of the writ petitioners while recording their statements in accordance
with the directions issued by this Court vide order dated 15th February
2010 referred to above. C
62. We are afraid, we are not in a position to accept such submission
after a period of almost 12 years. The statements we are referring to
recorded by the Judicial Officer are of the year 2010. Not once in the
last 12 years any grievance has been made either orally or in writing
before this Court as regards the mode and manner of recording of the D
statements. It is for the first time in 12 years that such a grievance has
been made. Had the writ petitioners raised such a plea at the appropriate
time and contemporaneously as regards the mode and manner of the
recording of the statements, this Court would have passed necessary
orders asking the Judicial Officer to record the further statements in a E
particular manner. It is too late in the day now to cast any insinuations or
aspersions against the Judicial Officer of the rank of District and Sessions
Judge, who had acted under the directions of this Court.
63. What we are trying to convey is that the statements of the
petitioners nos.2 to 13 recorded before the Judicial Officer demolishes F
the entire case put up by the petitioner no.1, who is running an NGO.
64. It appears from the materials on record that all those persons
who have been arraigned as accused and against whom charge sheets
have been filed are absconding. It is now for the concerned trial court to
take appropriate steps in this regard. If the persons named as accused in G
the charge sheets are absconding, then it is expected of the investigating
agency to take necessary steps for their arrest. In any view of the matter,
it is now for the trial court to do the needful in accordance with law.
65. In the overall view of the matter, we have reached to the
conclusion that no case, worth the name, has been made out by the writ
H
782 SUPREME COURT REPORTS [2022] 11 S.C.R.
A petitioners for any further investigation much less through an independent
agency to be appointed by this Court. In the facts of the above case, we
are of the view that the conditions laid down by this Court in the case of
Committee for Protection of Democratic Rights, West Bengal (supra)
quoted earlier are not fulfilled.
B 66. The writ petition accordingly fails and is hereby rejected with
exemplary costs of Rs. 5,00,000/- (Rupees Five Lakh Only). The requisite
amount towards the costs shall be paid by the petitioner no.1 viz. Himanshu
Kumar. The petitioner no.1 shall deposit the amount with the Supreme
Court Legal Services Authority within a period of 4 weeks from today;
failing which, it shall be open for the authority concerned to take
C appropriate steps in accordance with law for the recovery of the requisite
amount. Pending application, if any, stands disposed of.
INTERLOCUTORY APPLICATION NO. 52290 OF 2022
67. This is an application at the instance of the Union of India
D with the following prayers :
“(a) Hold the petitioners guilty of leveling false charges of
offence and of giving false and fabricated evidence before
this Hon’ble Court with an intention to procure conviction
for a capital offence or for life imprisonment against the
E personnel of security forces and to screen off the actual
offenders of Left Wing (Naxal) terrorism;
(b) Pass an order directing CBI/NIA or any other central
investigating agency or any other monitoring committee, as
this Hon’ble Court deems fit and proper, to register an FIR
F and conduct an in-depth investigation to identify the
individuals/organizations, who have been conspiring, abetting
and facilitating filing of petitions premised on false and
fabricated evidence before this Hon’ble Court as well as before
the Hon’ble High Courts with a motive to either deter the
security agencies to act against the Left Wing (Naxal) militia
G by imputing false charges on them or to screen off the Left
Wing (Naxal) militia from being brought to justice by creating
a false narrative of victimization before the Hon’ble Courts;
(c) And direct appropriate action against the Petitioners and
other person/s responsible for the aforesaid acts of perjury;
H
HIMANSHU KUMAR AND OTHERS v. STATE OF 783
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
(d) Pass any other just and reasonable orders to meet the A
ends of justice.”
68. We have closely looked into the averments made in the
Interlocutory Application.
69. Mr.Tushar Mehta, the learned Solicitor General has pressed
this application very hard. B
70. Although no particular nomenclature has been given to this
application, yet it is apparent that the same is under Section 340 of the
Code of Criminal Procedure,1973 (for short, “the CrPC”) read with
Section 195 of the CrPC. The Union of India wants this Court to initiate
appropriate proceedings against the writ petitioners for the offence of C
perjury punishable under Section 193 of the IPC. The Union of India
vehemently asserts that the writ petitioners are guilty of levelling false
charges of various offences and could be said to have fabricated evidence
before this Court in a judicial proceedings. The Union of India asserts
that the writ petitioner no.1 has affirmed the false averments made in D
the writ petition on oath. He could be said to have made a false affidavit.
The making of false affidavit and giving false evidence comes within the
purview of Section 191 of the IPC.
71. Before we proceed to examine this application filed by the
Union of India, we must look into few averments made therein : E
“4. Shockingly, in the petition, the petitioner had portrayed
the incidents of 17.9.2009 and 1.10.2009, as an act of not
restricted to extra judicial killings, but had sought to portray
such acts as act of barbarianism committed by security forces,
where the. special operation teams of police and paramilitary F
forces were alleged to have indulged into torturing, looting
and outraging the modesty of family members of those
encountered. The Petitioners had, thus, on affidavit, narrated
incidents alleging it to be gruesome killings and massacres
of innocent tribal villagers on 17.9.2009 and 1.10.2009, in
the petition. G
It is pertinent to mention here that the acts of torture and
killings of the villagers have been pleaded to be of such
beastly and horrific nature, so as to invoke and instigate an
instantaneous response of outrage by this Hon’ble Court,
undeniably leading to grant of relief/interim relief as prayed H
784 SUPREME COURT REPORTS [2022] 11 S.C.R.
A in the petition. In pith and substance, the reliefs prayed were
of the nature where operations of security forces were sought
to be halted and Left Wing Extremists were sought to be
granted legal protection under the narrative of victimization.
8. It is respectfully submitted that a bare perusal of the
B recordings etc. submitted by the Ld. District Judge before this
Hon’ble Court reveals that all the averments made by the
petitioner in the petition were ex-facie false and fabricated
and it is now clear that all the said deceitful averments were
made by the petitioner with malicious and audacious attempt
to mislead this Hon’ble court and to obtain orders from this
C court by playing fraud on its conscience and magnanimity.
9. In the respectful submission of the applicant, it is apparent
that the said insolent false averments were made with a malafide
objective to change the narrative of the incident and with
malicious designs i.e. to portray the dreaded Left Wing
D Extremists (Naxals), who were waging an armed rebellion
against the security forces of the country and threatening the
sovereignty and integrity of the country, as innocent tribal
victims being massacred by the security forces.
10. This was done with a deceitful design to instigate an
E instantaneous response of outrage by this Hon’ble Court and
mislead it to pass adverse orders against security forces under
an erroneous assumption of facts causing an adverse and
deterrent effect on the operations and morale of the security
forces. It is submitted that the modus adopted in the instant
F case, has over the period of time, become a norm where false
petitions are filed by individuals and organization who are
either supporters of Left Wing Extremism or benefit, financially
and politically, from Left Wing Extremist activities and
protective orders are obtained from the courts by playing
fraud. Further absence of a stern action being taken against
G them for playing fraud on the court has embolden them who
have now made a practice of filing such false and vexatious
petitions based on self-serving/self-generated fact finding
reports.
11. Aposteriori, it has become clear that this false narrative
H of a massacre of innocent tribals by security forces was created
HIMANSHU KUMAR AND OTHERS v. STATE OF 785
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
to somehow achieve immediate cessation of advancement of A
the security forces against the cornered armed Left Wing
Extremists. The said object was sought to be achieved, and
was in fact achieved by the petitioner, by misleading this
Hon’ble Court and by seeking adverse orders against security
forces by portraying false facts/ picture before the court and
B
by playing fraud on this Hon’ble Court.
12. In addition to the same thepurpose and motive of the
present petition was also to derail the ongoing efforts of
security forces in neutralizing the Left Wing Extremism
movement and the armed Left Wing Extremists; to take away
the dignity and credibility of security forces and the attempts C
made by them to neutralize the armed rebellion by Left Wing
Extremists; to lower the moral of the security agencies by
portraying them as demons and national villains, i.e. slayers
of innocent tribal people; and to foist false cases on them so
that in future the said false cases acts as a deterrent and D
chilling factor for the rest of the members of the armed forces
in planning or participating in a similar operations. It is
submitted that all this was done before the highest court of
the country and at the altar of the national security. This was
a fraud played on the constitutional remedies and an abuse
thereof of the highest order. E
13. In effect in the respectful submission of the applicant/
UOI, it is now also apparent that the present ex-facie false
and fraudulent petition was filed to deceit this Hon’ble court
and to provide a legal protective shield to the members of
Left Wing Extremist outfits. In the respectful submission of the F
applicant the present petition is nothing but a subterfuge and
a part of the conspiracy to cover the offence committed by
the Left Wing Extremists and to facilitate unhindered future
operations by weakening the security forces which is the only
challenge deterring their intentions and operations. The G
petitioners, in the respectful submission of the applicant, by
preferring the instant deceitful petition, have not only
conspired and abetted the commissioning of the crime but have
also conspired and abetted in covering up the crime and
screening the offenders/perpetrators of Left Wing (Naxal)
terrorism. H
786 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 14. It is submitted that scurrilous allegations made against
the security personnel of the country have nevertheless has
brought about a chilling effect of demoralizing the esprit de
corps and self-esteem of the members of the forces, which
has been since then acted against national interests.
B 15. In this perspective, when it is manifested that the present
petition was nothing but a fraud on this Hon’ble court, where
orders were sought to be obtained from this Hon’ble court
through deceitful designs/fabricated and false assertions, it
has become incumbent and imperative, both in the interest of
justice, as well as, in the interest of security of the nation that
C the people and organizations involved in playing fraud on
constitutional remedies and on whose instance false affidavits,
pleadings and evidence have been submitted before this
Hon’ble Court are identified and appropriate criminal action
is initiated against them. This is necessary to serve as a
D deterrent against repeating such modus.
22. It is submitted that in the process, the security personal
have been made scapegoats to bear the brunt of false
accusations. It is an admitted fact that rarely does any
individual security personal comes forward to contest such
E allegations, since their service protocol deters them from doing
so. Unwittingly and unfairly, they become easy targets of such
accusations leading to a resigned acceptance of such
blemishes as an incident of duty. Such an environment for the
functioning of security apparatus in any country is extremely
undesirable and in fact dangerous for the security of the nation
F and its people. The trust reposed by the society in the police
and other security personal is coveted and necessary for the
smooth functioning of any administration. The law
enforcement machinery is not and cannot appear to be
blemished. Moreover, it is also a fact that wherever any such
G machinery is found to be indulging in illegal or irregular
activities, this Hon’ble Court and other courts have been
prompt and undeterred in taking action against such personal.
However, there is an expedient and urgent need to guard
against irresponsible, unjustified and by far, brazen false
accusations against the security personal.”
H
HIMANSHU KUMAR AND OTHERS v. STATE OF 787
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
POSITION OF LAW : A
“Indian Penal Code
Section 191. Giving false evidence.—Whoever, being legally
bound by an oath or by an express provision of law to state
the truth, or being bound by law to make a declaration upon B
any subject, makes any statement which is false, and which
he either knows or believes to be false or does not believe to
be true, is said to give false evidence.
Section 192. Fabricating false evidence.—Whoever causes
any circumstance to exist or makes any false entry in any C
book or record, or electronic record or makes any document
containing a false statement, intending that such circumstance,
false entry or false statement may appear in evidence in a
judicial proceeding, or in a proceeding taken by law before
a public servant as such, or before an arbitrator, and that
such circumstance, false entry or false statement, so appearing D
in evidence, may cause any person who in such proceeding
is to form an opinion upon the evidence, to entertain an
erroneous opinion touching any point material to the result
of such proceeding, is said to “to fabricate false evidence”.
E
Section 193. Punishment for false evidence. - Whoever
intentionally gives false evidence in any stage of a judicial
proceeding, or fabricates false evidence for the purpose of
being used in any stage of a judicial proceeding, shall be
punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to F
fine, and whoever intentionally gives or fabricates false
evidence in any other case, shall be punished with
imprisonment of either description for a term which may
extend to three years, and shall also be liable to fine.”
Code of Criminal Procedure, 1973 G
Section 195. Prosecution for contempt of lawful authority of
public servants, for offences against public justice and for
offences relating to documents given in evidence.—(1) No
Court shall take cognizance-
H
788 SUPREME COURT REPORTS [2022] 11 S.C.R.
A (a) ... .... .... …
(b) (i) of any offence punishable under any of the following
sections of the Indian Penal Code (45 of 1860), namely,
sections 193 to 196 (both inclusive), 199, 200, 205 to 211
(both inclusive) and 228, when such offence is alleged to
B have been committed in, or in relation to, any proceeding in
any court, or
(ii) of any offence described in section 463, or punishable
under section 471, section 475 or section 476, of the said
Code, when such offence is alleged to have been committed
C in respect of a document produced or given in evidence in a
proceeding in any court, or
(iii) of any criminal conspiracy to commit, or attempt to commit,
or the abetment of, any offence specified in sub-clause (i) or
sub-clause (ii),
D
except on the complaint in writing of that Court, or by such
officer of the Court as that Court may authorize in writing in
this behalf, or of some other Court to which that Court is
subordinate.
E Section 340. Procedure in cases mentioned in section 195. —
(1) When upon an application made to it in this behalf or
otherwise, any Court is of opinion that it is expedient in the
interest of justice that an inquiry should be made into any
offence referred to in clause (b) of sub-section (1) of section
F 195, which appears to have been committed in or in relation
to a proceeding in that Court or, as the case may be, in respect
of a document produced or given in evidence in a proceeding
in that Court, such Court may, after such preliminary inquiry,
if any, as it thinks necessary,-
G (a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance for the accused
H before such Magistrate, or if the alleged offence is non-
HIMANSHU KUMAR AND OTHERS v. STATE OF 789
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
bailable and the Court thinks it necessary so to do, send the A
accused in custody to such Magistrate; and
(e) bind over any person to appear and given evidence before
such Magistrate;
(2) The power conferred on a Court by sub-section (1) in B
respect of an offence may, in any case where that Court has
neither made a complaint under sub-section (1) in respect of
that offence nor rejected an application for the making of
such complaint, be exercised by the Court to which such former
Court is subordinate within the meaning of sub-section (4) of
Section 195. C
(3) A complaint made under this section shall be signed, -
(a) where the Court making the complaint is a High Court, by
such officer of the Court as the court may appoint;
D
(b) in any other case, by the presiding officer of the court or
by such officer of the Court as the Court may authorise in
writing in this behalf.
(4) In this section, “Court” has the same meaning as in section
195.” E
72. Thus, from the above, it follows that there are two conditions,
on fulfillment of which, a complaint can be filed against a person who
has given a false affidavit or evidence in a proceeding before a court.
The first condition being that a person has given a false affidavit in a
proceeding before the court and, secondly, in the opinion of the court it is F
expedient in the interest of justice to make an inquiry against such a
person in relation to the offence committed by him.
73. In K. Karunakaran v. T.V. Eachara Warrier and another,
reported in AIR 1978 SC 290, this Court held in paragraphs 19, 20 and
21 as under : G
“19. Chapter XXVI of the Code of Criminal Procedure 1973
makes provisions as to offences affecting the administration
of justice. Sec. 340, Cr.P.C, with which the chapter opens is
the equivalent of the old Section 476 of the Criminal Procedure
H
790 SUPREME COURT REPORTS [2022] 11 S.C.R.
A Code, 1898. The chapter has undergone one significant
change with regard to the provision of appeal which was there
under the old section 476-B, Cr.P.C. Under Section 476-B,
Cr.P.C. (old) there was a right of appeal from the order of a
subordinate court to the superior court to which appeals
ordinarily lay from an appealable decree or sentence of such
B
former court. Under Section 476-B (old) there would have
ordinarily been a right of appeal against the order of the
High Court to this Court. There is, however, a distinct departure
from that position under Section 341, Cr.P.C. (new) with regard
to an appeal against the order of a High Court under Section
C 340 to this Court. An order of the High Court made undersub-
section (1) or sub-section (2) of Section 340 is specifically
excluded for the purpose of appeal to the superior court
under Section 341 (1), Cr.P.C (new). This is, therefore, a new
restriction in the way of the appellant when he approaches
this Court under Article 136 of the Constitution.
D
20. Whether, suo motu, or on an application by a party under
Section 340 (1), Cr.P.C., a court having been already seized
of a matter may be tentatively of opinion that further action
against some party or witness may be necessary in the interest
E of justice. In a proceeding underSection 340 (1), Cr.P.C, the
reasons recorded in the principal case, in which a false
statement has been made, have a great bearing and indeed
action is taken having regard to the overall opinion formed
by the court in the earlier proceedings.
F 21. At an enquiry held by the court underSection 340 (1),
Cr.P.C, irrespective of the result of the main case, the only
question is whether a prima facie case is made out which, if
unrebutted, may have a reasonable likelihood to establish
the specified offence and whether it is also expedient in the
interest of justice to take such action.”
G
74. In Baban Singh and another v. Jagdish Singh and others,
reported in AIR 1967 SC 68, this Court observed the following in
paragraph 7 as under :
“7. The matter has to be considered from three stand points.
H Does the swearing of the false affidavits amount to an offence
HIMANSHU KUMAR AND OTHERS v. STATE OF 791
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
under S.199, Indian Penal Code or under either Ss.191 or A
192, Indian Penal Code? If it comes under the two latter
sections, the present prosecution cannot be sustained, Section
199 deals with a declaration and does not state that the
declaration must be on oath. The only condition necessary is
that the declaration must be capable of being used as evidence
B
and which any Court of justice or any public servant or other
person, is bound or authorized by law to receive as evidence.
Section 191 deals with evidence on oath and S.192 with
fabricating false evidence. If we consider this matter from
the standpoint of S.191, Indian Penal Code the offence is
constituted by swearing falsely when one is bound by oath to C
state the truth because an affidavit is a declaration made
under an oath. The definition of the offence of giving false
evidence thus applies to the affidavits. The offence may also
fall within S.192. It lays down inter alia that a person is said
to fabricate false evidence if he makes a document containing D
a false statement intending that such false statement may
appear in evidence in a judicial proceeding and so appearing
in evidence may cause any person who, in such proceeding
is to form an opinion upon the evidence, to entertain an
erroneous opinion touching any point material to the result
of such proceeding. When Baban Singh and DharichhanKuer E
made declarations in their affidavits which were tendered in
the High Court to be taken into consideration, they intended
the statements to appear in evidence in a judicial proceeding,
and so appearing, to cause the Court to entertain an
erroneous opinion regarding the compromise. In this way their F
offence came within the words of Ss. 191/192 rather than
S.199 of the Indian Penal Code. They were thus prima facie
guilty of an offence of giving false evidence or of fabricating
false evidence for the purpose of being used in a judicial
proceeding.”
G
75. The law under Section 340 of the CrPC on initiating
proceedings has been laid down in several of our judgments. Thus in
Chajoo Ram v. Radhey Shyam, (1971) 1 SCC 774, this Court, in para
7, stated as under :
H
792 SUPREME COURT REPORTS [2022] 11 S.C.R.
A “7. … No doubt giving of false evidence and filing false
affidavits is an evil which must be effectively curbed with a
strong hand but to start prosecution for perjury too readily
and too frequently without due care and caution and on
inconclusive and doubtful material defeats its very purpose.
Prosecution should be ordered when it is considered expedient
B
in the interests of justice to punish the delinquent and not
merely because there is some inaccuracy in the statement which
may be innocent or immaterial. There must be prima facie
case of deliberate falsehood on a matter of substance and
the court should be satisfied that there is reasonable
C foundation for the charge.”
76. Similarly in Chandrapal Singh and Others v. Maharaj Singh
and Another, (1982) 1 SCC 466, this Court, in para 14, stated as under:
“14. That leaves for our consideration the alleged offence
D under Section 199. Section 199 provides punishment for
making a false statement in a declaration which is by law
receivable in evidence. We will assume that the affidavits filed
in a proceeding for allotment of premises before the Rent
Control Officer are receivable as evidence. It is complained
that certain averments in these affidavits are false though no
E
specific averment is singled out for this purpose in the
complaint. When it is alleged that a false statement has been
made in a declaration which is receivable as evidence in any
Court of Justice or before any public servant or other person,
the statement alleged to be false has to be set out and its
F alleged falsity with reference to the truth found in some
document has to be referred to pointing out that the two
situations cannot co-exist, both being attributable to the same
person and, therefore, one to his knowledge must be false.
Rival contentions set out in affidavits accepted or rejected by
courts with reference to onus probandi do not furnish
G
foundation for a charge under Section 199, I.P.C. To illustrate
the point, appellant-1Chandrapal Singh alleged that he was
in possession of one room forming part of premises No. 385/
2. The learned Additional District Judge after scrutinising
all rival affidavits did not accept this contention. It thereby
H does not become false. The only inference is that the statement
HIMANSHU KUMAR AND OTHERS v. STATE OF 793
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
made by Chandrapal Singh did not inspire confidence looking A
to other relevant evidence in the case. Acceptance or rejection
of evidence by itself is not a sufficient yardstick to dub the
one rejected as false. Falsity can be alleged when truth stands
out glaringly and to the knowledge of the person who is
making the false statement. Day in and day out, in courts
B
averments made by one set of witnesses are accepted and the
counter averments are rejected. If in all such cases complaints
under Section 199, I.P.C. are to be filed not only there will
open up floodgates of litigation but it would unquestionably
be an abuse of the process of the Court. The learned Counsel
for the respondents told us that a tendency to perjure is very C
much on the increase and unless by firm action courts do not
put their foot down heavily upon such persons the whole
judicial process would come to ridicule. We see some force in
the submission but it is equally true that chagrined and
frustrated litigants should not be permitted to give vent to
D
their frustration by cheaply invoking jurisdiction of the
criminal court. Complainant herein is an Advocate. He lost in
both courts in the rent control proceedings and has now rushed
to the criminal court. This itself speaks volumes. Add to this
the fact that another suit between the parties was pending
from 1975. The conclusion is inescapable that invoking the E
jurisdiction of the criminal court in this background is an
abuse of the process of law and the High Court rather glossed
over this important fact while declining to exercise its power
under Section 482, Cr. P.C.”
77. Both the aforesaid judgments were referred to and relied upon F
with approval in R.S. Sujatha v. State of Karnataka and Others, (2011)
5 SCC 689. This Court, after setting down the law laid down in these
two judgments concluded:
“18. Thus, from the above, it is evident that the inquiry/
contempt proceedings should be initiated by the court in G
exceptional circumstances where the court is of the opinion
that perjury has been committed by a party deliberately to
have some beneficial order from the court. There must be
grounds of a nature higher than mere surmise or suspicion
for initiating such proceedings. There must be distinct evidence H
794 SUPREME COURT REPORTS [2022] 11 S.C.R.
A of the commission of an offence by such a person as mere
suspicion cannot bring home the charge of perjury. More so,
the court has also to determine as on facts, whether it is
expedient in the interest of justice to inquire into the offence
which appears to have been committed.”
B 78. It is clear through from a reading of the aforesaid judgments
that there should be something deliberate - a statement should be made
deliberately and consciously which is found to be false as a result of
comparing it with unimpeachable evidence, documentary or otherwise.
79. It is true that an affidavit is ‘evidence’ within the meaning of
C Section 191 of the IPC and a person swearing to a false affidavit is
guilty of perjury. But the matter does not rest here. Before initiating the
proceedings for perjury, the court concerned has to consider whether it
would be expedient in the interest of justice to sanction such prosecution.
What the courts have to see at this stage is whether there is evidence in
D support of the allegations made by the Union of India (respondent herein)
to justify the initiation of proceedings against the writ petitioners, more
particularly, the writ petitioner no.1 herein who had filed the affidavit on
behalf of himself and the other writ petitioners and not whether the
evidence is sufficient to warrant his conviction. However, this does not
mean that the court should not prima facie be of the opinion that there
E are sufficient and reasonable grounds for setting the machinery of criminal
law in motion against the accused. As noted above, the Court has further
to see that the false statement was deliberate and conscious and the
conviction is reasonably probable or likely. In other words, before
sanctioning the prosecution there must be a prima facie case of a
F falsehood on a matter of substance and the court should be satisfied that
there is reasonable foundation for the charge. (see S.P.Kohli v. High
Court of Punjab & Haryana, AIR 1978 SC 1753)
80. This Court, in the case of Muthu Karuppan, Commissioner
of Police, Chennai v. ParithiIlamvazhuthi and another, reported in
G (2011) 5 SCC 496, has held as under :
“15. Giving false evidence by filing false affidavit is an evil
which must be effectively curbed with a strong hand.
Prosecution should be ordered when it is considered expedient
in the interest of justice to punish the delinquent, but there
H
HIMANSHU KUMAR AND OTHERS v. STATE OF 795
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
must be a prima facie case of “deliberate falsehood” on a A
matter of substance and the court should be satisfied that
there is a reasonable foundation for the charge.
16. In a series of decisions, this Court held that the enquiry/
contempt proceedings should be initiated by the court in
exceptional circumstances where the court is of the opinion B
that perjury has been committed by a party deliberately to
have some beneficial order from the court. There must be
grounds of a nature higher than mere surmise or suspicion
for initiating such proceedings. There must be distinct evidence
of the commission of an offence by such a person as mere C
suspicion cannot bring home the charge of making false
statement, more so, the court has to determine as on facts
whether it is expedient in the interest of justice to enquire into
offence which appears to have been committed.”
81. Section 340 of the CrPC came up for the consideration before D
a three-Judge Bench of this Court in the case of Pritish v. State of
Maharashtra, (2002) 1 SCC 253. In Pritish (supra), this Court was
called upon to consider, whether it is mandatory on the part of the court
to make a preliminary inquiry under Section 340 of the CrPC before
filing a complaint under Section 195 of the CrPC and further, whether
the court is required to afford an opportunity of hearing to the person E
against whom a complaint is filed before a Magistrate for initiating
prosecution proceedings. This Court took the view that an opportunity to
the wouldbe accused before the filing of the complaint was not mandatory,
and observed that the preliminary inquiry was itself not mandatory. The
Court observed thus : F
“9. Reading of the sub-section makes it clear that the hub of
this provision is formation of an opinion by the court (before
which proceedings were to be held) that it is expedient in the
interest of justice that an inquiry should be made into an
offence which appears to have been committed. In order to G
form such opinion the court is empowered to hold a
preliminary inquiry. It is not peremptory that such preliminary
inquiry should be held. Even without such preliminary inquiry
the court can form such an opinion when it appears to the
court that an offence has been committed in relation to a
H
796 SUPREME COURT REPORTS [2022] 11 S.C.R.
A proceeding in that court. It is important to notice that even
when the court forms such an opinion it is not mandatory
that the court should make a complaint. This subsection has
conferred a power on the court to do so. It does not mean
that the court should, as a matter of course, make a complaint.
But once the court decides to do so, then the court should
B
make a finding to the effect that on the fact situation it is
expedient in the interest of justice that the offence should
further be probed into. If the court finds it necessary to
conduct a preliminary inquiry to reach such a finding it is
always open to the court to do so, though absence of any
C such preliminary inquiry would not vitiate a finding reached
by the court regarding its opinion. It should again be
remembered that the preliminary inquiry contemplated in the
sub-section is not for finding whether any particular person
is guilty or not. Far from that, the purpose of preliminary
D inquiry, even if the court opts to conduct it, is only to decide
whether it is expedient in the interest of justice to inquire into
the offence which appears to have been committed.
10. “Inquiry” is defined in Section 2(g) of the Code as “every
inquiry, other than a trial, conducted under this Code by a
E Magistrate or court”. It refers to the pre-trial inquiry, and in
the present context it means the inquiry to be conducted by
the Magistrate. Once the court which forms an opinion,
whether it is after conducting the preliminary inquiry or not,
that it is expedient in the interest of justice that an inquiry
should be made into any offence the said court has to make a
F complaint in writing to the Magistrate ofthe First Class
concerned. As the offences involved are all falling within the
purview of “warrant case” [as defined in Section 2(x)] of
the Code the Magistrate concerned has to follow the procedure
prescribed in Chapter XIX of the Code. In this context we
G may point out that Section 343 of the Code specifies that the
Magistrate to whom the complaint is made under Section 340
shall proceed to deal with the case as if it were instituted on a
police report. That being the position, the Magistrate on
receiving the complaint shall proceed under Section 238 to
Section 243 of the Code.
H
HIMANSHU KUMAR AND OTHERS v. STATE OF 797
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
11. Section 238 of the Code says that the Magistrate shall at A
the outset satisfy himself that copies of all the relevant
documents have been supplied to the accused. Section 239
enjoins on the Magistrate to consider the complaint and the
documents sent with it. He may also make such examination
of the accused, as he thinks necessary. Then the Magistrate
B
has to hear both the prosecution and the accused to consider
whether the allegations against the accused are groundless.
If he finds the allegations to be groundless he has to discharge
the accused at that stage by recording his reasons thereof.
Section 240 of the Code says that if the Magistrate is of
opinion, in the aforesaid inquiry, that there is ground for C
presuming that the accused has committed the offence he has
to frame a charge in writing against the accused. Such charge
shall then be read and explained to the accused and he shall
be asked whether he pleads guilty of the offence charged or
not. If he pleads not guilty then the Magistrate has to proceed D
to conduct the trial. Until then the inquiry continues before
the Magistrate.
12. Thus, the person against whom the complaint is made has
a legal right to be heard whether he should be tried for the
offence or not, but such a legal right is envisaged only when E
the Magistrate calls the accused to appear before him. The
person concerned has then the right to participate in the pre-
trial inquiry envisaged in Section 239 of the Code. It is open
to him to satisfy the Magistrate that the allegations against
him are groundless and that he is entitled to be discharged.
F
13. The scheme delineated above would clearly show that
there is no statutory requirement to afford an opportunity of
hearing to the persons against whom that court might file a
complaint before the Magistrate for initiating prosecution
proceedings. Learned counsel for the appellant contended G
that even if there is no specific statutory provision for affording
such an opportunity during the preliminary inquiry stage, the
fact that an appeal is provided in Section 341 of the Code, to
any person aggrieved by the order, is indicative of his right
to participate in such preliminary inquiry.
H
798 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 14. Section 341 of the Code confers a power on the party on
whose application the court has decided or not decided to
make a complaint, as well as the party against whom it is
decided to make such complaint, to file an appeal to the court
to which the former court is subordinate. But the mere fact
that such an appeal is provided, it is not a premise for
B
concluding that the court is under a legal obligation to afford
an opportunity (to the persons against whom the complaint
would be made) to be heard prior to making the complaint.
There are other provisions in the Code for reaching
conclusions whether a person should be arrayed as accused
C in criminal proceedings or not, but in most of those
proceedings there is no legal obligation cast on the court or
the authorities concerned, to afford an opportunity of hearing
to the would-be accused. In any event the appellant has
already availed of the opportunity of the provisions of Section
341 of the Code by filing the appeal before the High Court
D
as stated earlier.
x x x x
18. We are unable to agree with the said view of the learned
Single Judge as the same was taken under the impression
E that a decision to order inquiry into the offence itself would
prima facie amount to holding him, if not guilty, very near to
a finding of his guilt. We have pointed out earlier that the
purpose of conducting preliminary inquiry is not for that
purpose at all. The would-be accused is not necessary for
F the court to decide the question of expediency in the interest
of justice that an inquiry should be held. We have come across
decisions of some other High Courts which held the view that
the persons against whom proceedings were instituted have
no such right to participate in the preliminary inquiry (vide
M.Muthuswamy v. Special Police Establishment [1985 Cri LJ
G 420 (Mad)]).”
(emphasis supplied)
82. In M.S. Sheriff and Another v. State of Madras and Others,
AIR 1954 SC 397, a Constitution Bench of this Court said that no
H expression on the guilt or innocence of persons should be made by court
HIMANSHU KUMAR AND OTHERS v. STATE OF 799
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
while passing an order under Section 340 of CrPC. An exercise at that A
stage is not for finding whether any offence was committed or who
committed the same. The scope is confined to see whether the court
could then decide on the materials available that the matter requires
inquiry by a criminal court and that it is expedient in the interest of justice
to have it inquired into. This decision of the Constitution Bench has also
B
been followed in Pritish (supra) observing that the court, when decides
to make a complaint under Section 340, is not to record finding of guilt or
innocence of person against whom complaint is to be made before a
Magistrate.
83. We may also refer and reply upon the decision of this Court in C
the case of Aarish Asgar Qureshi v. Fareed Ahmed Qureshi and
another, reported in (2019) 18 SCC 172, wherein this Court discussed
and explained the necessary requirements for the purpose of initiation of
proceeding under Section 340 read with Section 195(1)(b) of the CrPC.
This Court laid much emphasis on two words namely “deliberate” and
“intentional”. This Court talked about the requirement of impeachable D
evidence for the purpose of initiation of proceedings. In other words,
this Court took the view that a statement should be made deliberately
and consciously and the same should be found to be false as a result of
comparing it with unimpeachable evidence, documentary or otherwise.
We quote the relevant observations made by this Court:- E
“10. It is clear therefore from a reading of these judgments that
there should be something deliberate - a statement should be made
deliberately and consciously which is found to be false as a result
of comparing it with unimpeachable evidence, documentary or
otherwise. In the facts of the present case, it is clear that the F
statement made in the anticipatory bail application cannot be tested
against unimpeachable evidence as evidence has not yet been
led. Moreover, the report dated 12.11.2011 being a report, which
is in the nature of a preliminary investigation report by the
investigating officer filed only two days after the F.I.R. is lodged,
can in no circumstances be regarded as unimpeachable evidence G
contrary to the statements that have been made in the anticipatory
bail application. …”
(emphasis supplied)
H
800 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 84. However, in the subsequent decision in the case of Sharad
Pawar v. Jagmohan Dalmiya, (2010) 15 SCC 290, while dealing with
a similar question as above, a three-Judge Bench of this Court went on
to observe as follows :
“7. Having heard the learned Senior Counsel for both sides
B and after perusal of the record, we are of the considered view
that before giving a direction to file complaint against
Defendants 1 to 6, it was necessary for the learned Single
Judge to conduct a preliminary enquiry as contemplated under
Section 340 CrPC and also to afford an opportunity of being
C heard to the defendants, which was admittedly not done.
8. We, therefore, in the interest of justice, allow these appeals,
set aside the impugned order of the High Court passed in the
application filed by Respondent 1-plaintiff under Section 340
CrPC and remit the matter to the learned Single Judge to decide
D the application under Section 340 CrPC afresh in accordance
with law, and after affording reasonable opportunity of being
heard to the defendants, against whom the learned Single
Judge ordered enquiry.”
85. Later, the judgment in Pritish (supra) came to be relied upon
E by a two Judges Bench of this Court in Amarsang Nathaji (supra).
While dealing with the propriety of the procedure adopted by the court
making a complaint under Section 340 of the CrPC, the Bench in
Amarsang Nathaji observed as follows:
“7. In the process of formation of opinion by the court that it
F is expedient in the interests of justice that an inquiry should
be made into, the requirement should only be to have a prima
facie satisfaction of the offence which appears to have been
committed. It is open to the court to hold a preliminary inquiry
though it is not mandatory. In case, the court is otherwise in
G a position to form such an opinion, that it appears to the
court that an offence as referred to under Section 340 CrPC
has been committed, the court may dispense with the
preliminary inquiry. Even after forming an opinion as to the
offence which appears to have been committed also, it is not
mandatory that a complaint should be filed as a matter of
H
HIMANSHU KUMAR AND OTHERS v. STATE OF 801
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
course. (See Pritish v. State of Maharashtra [Pritish v. State A
of Maharashtra, (2002) 1 SCC 253)
86. The conflict between the two decisions of this Court of equal
strength, i.e. Pritish (supra) and Sharad Pawar (supra), was taken
notice of by this Court in the case of the State of Punjab v. Jasbir
Singh, (2020) 12 SCC 96. A Bench of two Judges of this Court ultimately B
thought fit to refer the question to a Larger Bench. The Court observed
as under :
“14. In any event, given that the decision of the three-Judge
Bench in Sharad Pawar (supra) did not assign any reason as
to why it was departing from the opinion expressed by a C
Coordinate Bench in Pritish (supra) regarding the necessity
of a preliminary inquiry under Section 340 of the CrPC, as
also the observations made by a Constitution Bench of this
Court in Iqbal Singh Marwah (supra), we find it necessary
that the present matter be placed before a larger Bench for
D
its consideration, particularly to answer the following
questions:
14.1(i) Whether Section 340 of the Code of Criminal
Procedure, 1973 mandates a preliminary inquiry and an
opportunity of hearing to the would-be accused before a
E
complaint is made under Section 195 of the Code by a
Court ?
14.2(ii) What is the scope and ambit of such preliminary
inquiry ?”
87. It appears that the reference on the aforesaid two questions F
to a larger Bench is still pending.
88. However, we do not intend to dwell upon any further in the
aforesaid context i.e. whether it would be expedient in the interests of
justice to proceed against the writ petitioners for perjury. We are saying
so as we do not want to precipitate this issue any further. We have said G
in so many words that this is a very serious matter as it relates directly to
the security of the nation.
89. In the aforesaid context, we have something else in mind. We
propose to look into Section 211 of the IPC. Section 211 of the IPC is
extracted hereunder:- H
802 SUPREME COURT REPORTS [2022] 11 S.C.R.
A “Section 211. False charge of offence made with intentto
injure.—Whoever, with intent to cause injury to any person,
institutes or causes to be instituted any criminal proceeding
against that person, or falsely charges any person with having
committed an offence, knowing that there is no just or lawful
ground for such proceeding or charge against that person,
B
shall be punished with imprisonment of either description for
a term which may extend to two years, or with fine, or with
both; and if such criminal proceeding be instituted on a false
charge of an offence punishable with death, [imprisonment
for life], or imprisonment for seven years or upwards, shall
C be punishable with imprisonment of either description for a
term which may extend to seven years, and shall also be liable
to fine.”
90. The essential ingredients for invoking Section 211, I.P.C. are
that the complaint must have falsely charged a person with having
D committed an offence. The complainant, at the time of giving the complaint
must have known that there is no just or lawful ground for making a
charge against the person. This complaint must have been given with an
intention to cause injury to a person.
91. The CrPC does not define what constitutes the making of a
E “charge” of an offence or what amounts to the “institution of criminal
proceedings”. But, in our opinion, a false “charge” in this Section must
not be understood in any restricted or technical sense, but in its ordinary
meaning, of a false accusation made to any authority bound by law to
investigate it or to take any steps in regard to it, such as giving information
F of it to the superior authorities with a view to investigation or other
proceedings, and the institution of criminal proceedings includes the setting
of the criminal law in motion. The nature of both expressions, and the
difference between them has been explained in lucid terms in the decision
of the Full Bench of the Calcutta High Court in the case of Karim Buksh
v. Queen Emp, 17 C. 574. It points out that there may be a charge
G which does not amount to the institution of criminal proceedings “and
there may be criminal proceedings which do not necessarily involve a
charge” of any offence. As an illustration of the former it points out that
a charge made to the Judge of a Civil Court or to public officers of other
kinds, in order to obtain sanction to prosecute may well be a charge “but
H is not the institution of criminal proceedings”. It further points out that an
HIMANSHU KUMAR AND OTHERS v. STATE OF 803
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
aggrieved person may seek to put the criminal law in motion either by A
making a charge or in the language of the Code giving information to the
Police (Section 154 CrPC) “or he may” lay a charge, or as the Code calls
it, a complaint (Section 190 CrPC) before a Magistrate”.
92. We are referring to Section 211 of the IPC as above keeping
in mind the fact that the first information reports lodged by the writ B
petitioners at the different police stations were investigated and at the
end of the investigation, the investigating agency reached to the conclusion
that the police force had no role to play, rather Naxals were responsible
for the massacre. Prima facie, it could be said that false information
was given by the first informants to the police as regards the alleged C
massacre by the police force.
93. The essential to be satiated in order to attract the offence
under Section 211 of the IPC was elucidated by this Court in in Santokh
Singh & Ors. v. Izhar Hussan & Anr., (1973) 2 SCC 406. The relevant
paragraph is extracted hereinunder: D
“10. … This section as its marginal note indicates renders
punishable false charge of offence with intent to injure. The
essential ingredient of an offence under Section 211 IPC is to
institute or cause to be instituted any criminal proceeding against
a person with intent to cause him injury or with similar intent to E
falsely charge any person with having committed an offence,
knowing that there is no just or lawful ground for such proceeding
or charge.Instituting or causing to institute false criminal
proceedings assume false charge but false charge may be
preferred even when no criminal proceedings result. It is frankly
F
conceded by Shri Kohli that the appellant cannot be said to have
instituted any criminal proceeding against any person. So that part
of Section 211 IPC is eliminated. Now, the expression “falsely
charges” in this section, in our opinion, cannot mean giving false
evidence as a prosecution witness against an accused person during
the course of a criminal trial. To “falsely charge” must refer to G
the original or initial accusation putting or seeking to put in motion
the machinery of criminal investigation and not when speaking to
prove the false charge by making deposition in support of the
charge framed in that trial. The words “falsely charges” have to
be read along with the expression “institution of criminal
H
804 SUPREME COURT REPORTS [2022] 11 S.C.R.
A proceeding”. Both these expressions, being susceptible of
analogous meaning should be understood to have been used in
their cognate sense. They get as it were their colour and content
from each other. They seem to have been used in a technical
sense as commonly understood in our criminal law. The false
charge must, therefore, be made initially to a person in authority
B
or to someone who is in a position to get the offender punished by
appropriate proceedings. In other words, it must be embodied either
in a complaint or in a report of a cognizable offence to the police
officer or an officer having authority over the person against whom
the allegations are made. The statement in order to constitute the
C “charge” should be made with the intention and object of setting
criminal law in motion. …”.
94. Thus, as explained by this Court in Santokh Singh v. Izhar
Hussain (supra), the essential ingredient of an offence under Section
211 IPC is to institute or cause, to be instituted any criminal proceeding
D against a person with intent to cause him injury or with similar intent to
falsely charge any person with having committed an offence, knowing
that there is no just or lawful ground for such proceeding or charge.
Instituting or causing to institute false criminal proceedings assume false
charge but false charge may be preferred even when no criminal
E proceedings result. Now, the expression “falsely charges” in this section,
in our opinion, cannot mean giving false evidence as a prosecution witness
against an accused person during the course of a criminal trial. “To
falsely charge” must refer to the original or initial accusation putting or
seeking to put in motion the machinery of criminal investigation and not
when seeking to prove the false charge by making deposition in support
F of the charge framed in that trial. The words “falsely charges” have to
be, read along with the expression “institution of criminal proceeding”.
Both these expressions, being susceptible of analogous meaning should
be understood to have been used in their cognate sense. They get as it
were their colour and content from each other. They seem to have been
G used in a technical sense as commonly understood in our criminal law.
The false charge must, therefore, be made initially to a person in authority
or to someone who is in a position to get the offender punished by
appropriate proceedings. In other words, it must be’ embodied either in
a complaint or in a report of a cognizable offence to the police officer or
to an officer having authority over the person against whom the allegations
H
HIMANSHU KUMAR AND OTHERS v. STATE OF 805
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
are made. The statement in order to constitute the “charges” should be A
made with the intention and object of setting criminal law in motion.
95. Thus, we leave it to the State of Chhattisgarh/CBI (Central
Bureau of Investigation) to take appropriate steps in accordance with
law as discussed above in reference to the assertions made in the interim
application.We clarify that it shall not be limited only to the offence under B
Section 211 of the IPC. A case of criminal conspiracy or any other
offence under the IPC may also surface.We may not be understood of
having expressed any final opinion on such action/proceedings. We leave
it to the better discretion of the State of Chhattisgarh/CBI to act
accordingly keeping in mind the seriousness of the entire issue. Thus, C
the relief prayed for in terms of Para 67(b) hereinabove,of the subject
interlocutory application is hereby granted.
96. We have not remained oblivious of Section 195 CrPC while
discussing the aforesaid. We make it clear that having regard to the
facts of the present case the bar of Section 195 CrPC would not apply if D
ultimately the State of Chhattisgarh/CBI decides to take appropriate
action in accordance with law as discussed above. The issue is no longer
res integra in view of the decision of this Court in M.L. Sethi v. R.P.
Kapur, reported in AIR 1967 SC 528, wherein this Court observed as
under:
E
“10. In the interpretation of this clause (b) of sub-section (1) of
Section 195, considerable emphasis has been laid before us on
the expression “in, or in relation to”, and it has been urged that the
use of the expression “in relation to” very considerably widens
the scope of this section and makes it applicable to cases where
F
there can even in future be a proceeding in any court in relation to
which the offence under Section 211 IPC, may be alleged to have
been committed. A proper interpretation of this provision requires
that each ingredient in it be separately examined. This provision
bars taking of cognizance if all the following circumstances exist
viz. (1) that the offence in respect of which the case is brought G
falls under Section 211 IPC; (2) that there should be a proceeding
in any court; and (3) that the allegation should be that the offence
under Section 211 was committed in, or in relation to, such a
proceeding. Unless all the three ingredients exist, the bar under
Section 195(1)(b) against taking cognizance by the Magistrate,
H
806 SUPREME COURT REPORTS [2022] 11 S.C.R.
A except on a complaint in writing of a court, will not come into
operation. In the present case also, therefore, we have to see
whether all these three ingredients were in existence at the time
when the Judicial Magistrate at Chandigarh proceeded to take
cognizance of the charge under Section 211 IPC against the
appellant.
B
11. There is, of course, no doubt that in the complaint before the
Magistrate a charge under Section 211 IPC, against the appellant
was included, so that the first ingredient clearly existed. The
question on which the decision in the present cases hinges is
C whether it can be held that any proceeding in any court existed
when that Magistrate took cognizance. If any proceeding in any
court existed and the offence under Section 211 IPC, in the
complaint filed before him was alleged to have been committed in
such a proceeding, or in relation to any such proceeding, the
Magistrate would have been barred from taking cognizance of
D the offence. On the other hand, if there was no proceeding in any
court at all in which, or in relation to which, the offence under
Section 211 could have been alleged to have been committed, this
provision barring cognizance would not be attracted at all. 12. In
this case, as we have already indicated when enumerating the
E facts, the complaint of which cognizance was taken by the Judicial
Magistrate at Chandigarh was filed on April 11, 1959 and at that
stage, the only proceeding that was going on was investigation by
the police on the basis of the First Information Report lodged by
the appellant before the Inspector-General of Police on December
10, 1958. There is no mention at all that there was, at that stage,
F any proceeding in any court in respect of that FIR When examining
the question whether there is any proceeding in any court, there
are three situations that can be envisaged. One is that there may
be no proceeding in any court at all. The second is that a proceeding
in a court may actually be pending at the point of time when
G cognizance is sought to be taken of the offence under Section 211
IPC. The third is that, though there may be no proceeding pending
in any court in which, or in relation, to which the offence under
Section 211 IPC could have been committed, there may have
been a proceeding which had already concluded and the offence
under Section 211 may be alleged to have been committed in, or
H
HIMANSHU KUMAR AND OTHERS v. STATE OF 807
CHHATTISGARH AND OTHERS [J. B. PARDIWALA, J.]
in relation to, that proceeding. It seems to us that in both the latter A
two circumstances envisaged above, the bar to taking cognizance
under Section 195(1)(b) would come into operation. If there be a
proceeding actually pending in any court and the offence under
Section 211 IPC is alleged to have been committed in relation to
that proceeding, Section 195(1)(b) would clearly apply. Even if
B
there be a case where there was, at one stage, a proceeding in
any Court which may have concluded by the time the question of
applying the provisions of Section 195(1)(b) arises, the bar under
that provision would apply if it is alleged that the offence under
Section 211 IPC, was committed in relation to that proceeding.
The fact that the proceeding had concluded would be immaterial C
because Section 195(1)(b) does not require that the proceeding in
any court must actually be pending at the time applying this bar
arises.”
97. With the aforesaid, we dispose of this Interlocutory
Application. D
Bibhuti Bhushan Bose Writ petition dismissed and
Interlocutory application disposed of.
(Assisted by : Shashwat Jain, LCRA)
E
F
G
H
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