RUBABBUDDIN SHEIKHversusSTATE OF GUJARAT & ORS.

                      [2010) 1 S.C.R. 991

                   RUBABBUDDIN SHEIKH                               A
                                 v.
                STATE OF GUJARAT & ORS.
            (Writ Petition (Crl.) No. 6 of 2007 etc:)
                      JANUARY 12, 2010
                                                                    B
      [TARUN CHATTERJEE AND AFTAB ALAM, JJ.]

        Constitution of India, 1950 - Article 32 - Writ petition -
  Seeking transfer of investigation to CBI - In a case of alleged
  abduction and fake encounter by State police authorities - C
  Direction sought for registration of offence and investigation
  of alleged encounter of the material witness against the police
  officials - Writ of Habeas Corpus also sought to produce wife
  of the abducted person who was also alleged to be missing -
  Investigation into the matter initiated by the State police in the D ·
  matter on the direction of Registry of Supreme Court, which
  was issued on the basis of letter to the Chief Justice of India
 by the writ petitioner- Police filing eight Action Taken Reports
 before the Court - In one of the reports informed that dead
 body of the wife of abducted person disposed of - Hence no E
 formal writ of Habeas Corpus issued - Held: There are grave
 a/legations against high police officials - There are large and
 various discrepancies in Action Taken Reports and in
 investigation conducted by State Police - The investigation
 of the case is also spread over other States - The F
 investigation by the local police was de hors the mandate of
 CrPC and not impartial - In the interest of justice and to instil
 confidence in the minds of victims as well as public, the
investigation is handed over to CBI - In order to do complete
justice in a case, court can handover investigation to CBI even G
 after submission of the charge-sheet by local police -
 Investigation - Code of Criminal Procedure, 1973 - Chapter
12.

      The writ petitioner sent a letter to the Chief Justice
                             991                                    H
    992     SUPREME COURT REPORTS              [2010] 1 S.C.R.


A of India informing about killing of his brother 'S' in a fake
  encounter and disappearance of his sister-in-law 'K' at
  the hands of Anti Terrorist Squad of Gujarat Police and
  Rajasthan Special Task Force. The letter was forwarded
  by the Registry of Supreme Court to the Gujarat Police
B to take action. After several reminders, enquiry was
  directed in the matter by the police.

       In the meantime the petitioner filed writ petition No.
  6 of 2007, seeking direction for investigation by CBI into
  the alleged abduction and fake encounter of 'S', and
C registration of an offence and investigation by CBI into
  alleged encounter of 'T', a close associate of 'S'i who was
  a material witness against the police personnel. The
  petitioner also sought writ of habeas corpus to produce
    'K'.
D
       The State filed its interim reports in the matter,
  wherein it was stated that further inquiry was required
  and also sought permission to interrogate 'T'. However,
  from records it appeared that 'T' during a transit remand,
E escaped the police custody; and when the police
  personnel tried to apprehend him, 'T' assaulted them and
  then police personnel fired at him in self-defence, killing
  him.

F        As per direction of this Court, Gujarat Police filed
    eight Action Taken Reports in respect of the matter. In
    one of the Reports, the State brought to the notice of the
    Court that the body of 'K' was disposed of by burning.
    In view of the same, Supreme Court restrained itself from
    issuing a formal writ of Habeas Corpus.
G
      Another Writ Petition No. 115 of 2007 was also filed
  by mother of 'T', alleging fake encounter of her son. She
  sought registration of the FIR in that case and its
  investigation by CBI. Contempt Petition was also filed in
H the writ petition No. 6/2007.
 RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 993
                  ORS.

     The question for consideration before this Court was       A
whether in the facts and circumstances of the case, it was
just and proper to transfer the case to CBI Authorities or
any other independent agency, when the charge-sheet
had already been submitted by the local police.
                                                                B
    Disposing of the Writ Petition No. 6 of 2007 and
contempt petition filed therein, and adjourning the
hearing in the Writ Petition No. 115 of 2007, the court.

     HELD: 1.1. In an appropriate case when the court
feels that the investigation by the police authorities is not   C
in the proper direction and in order to do complete justice
in the case and as the high police officials are involved
in the said crime, it was always open to the court to hand
over the investigation to the independent agency like CBI.
It cannot be said that after the charge-sheet is submitted,     D
the court is not empowered, in an appropriate case, to
hand over the investigation to an independent agency
like CBI. [Para 54] [1018-D-F]

     1.2. In the instant case, taking into consideration the    E
grave allegations made against the high police officials
of the State in respect of which some of them have
already been in custody, it is proper and appropriate and
in the interest of justice even at this stage, that is, when
the charge-sheet has already been submitted, the
                                                                F
investigation shall be transferred to the CBI authorities
for proper and thorough investigation of the case. [Para
51] [1016-G-H; 1017-A-B]

     1.3. The accusations are directed against the local
police personnel in which High Police officials of the G
State of Gujarat have been made the accused. If
investigation is allowed to be carried out by the local
police authorities, all concerned including the relatives of
the deceased may feel that investigation was not proper
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    994    SUPREME COURT REPORTS               (2010) 1 S.C.R.


A and in those circumstances it would be fit and proper that
  the writ petitioner and the relatives of the deceased
  should be assured that an independent agency should
  look into the matter and that would lend the final outcome
  of the investigation credibility, however faithfully the local
B police may carry out the investigation, particularly when
  the gross allegations have been made against the high
  police officials of the State of Gujarat and for which some
  high police officials have already been taken into
  custody. [Para 49] [1015-G-H; 1016-A-D]
c       1.4. There are large and various discrepancies in
  Action Taken Reports and the investigation conducted
  by the police authorities of the State of Gujarat and the
  charge-sheet filed by the State Investigating Agency also
  cannot be said to have run in a proper direction. From
D the factual discrepancies appearing in eight Action Taken
  Reports and from the charge-sheet, the Court feels that
  the police authorities of the State of Gujarat had failed to
  carry out a fair and impartial investigation as the Court
  initially wanted them to do. It cannot be questioned that
E the offences, the high police officials have committed,
  were of grave nature which need to be strictly dealt with.
  [Paras 55 and 59] [1019-B-E; 1021-B-D]

       1.5. The investigation of crime was carried out de
F hors the mandate contained in Cr.P.C. and particularly
  Chapter XII containing Sections 154-176. There had bee11
  no fresh FIR filed despite primary investigation No. 66 to
  make the same the basis for investigation and trial. [Para
  60] [1021-F]
G      1.6. Admittedly, the FIR dated .16th of November, 2005
  which was filed following the alleged encounter was a
  fabricated one and, therefore, it could not have formed
  the basis of the real investigation to find the truth. The
  investigation and charge-sheet were silent on the motive
H behind the 'killings'. The only motive stated is fame. From
  RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 995
                   ORS.

the Action Taken Reports submitted by the State Police          A
Authorities, it is found that the State Police Authorities of
Gujarat had to take help from the o~her police officials of
other States, namely, Andhra Pradesh and Rajasthan. If
the investigation is transferred to the CBI Authorities, it
would be fair and proper that the other State police            B
officials should also help the CBI Authorities in coming
to a final conclusion on the allegations made by the writ
petitioner and also on the offences alleged to have been
committed by some of them. [Para 60) [1021-G-H; 1022-
A-D]                                                            C

     1.7. Although the charge-sheet was submitted, but
considering the nature of crime that has been allegedly
committed not by any third party but by the police
personnel of the State of Gujarat, the investigation
concluded in the present case cannot be said to be              D
satisfactorily held. [Para 65] [1024-D-E]

     1.8. The scope of this order, however, cannot deal
with the power of this Court to monitor the investigation,
 but on the other hand in order to make sure that justice       E
is not only done, but also is seen to be done and
considering the involvement of the State Police
Authorities and particularly the high officials of the State
of Gujarat, even at this stage, the court is compelled to
direct the CBI authorities to investigate into the matter.      F
Since the high police officials of the State of Gujarat are
involved and some of them had already been in custody,
it would not be sufficient to instill confidence in the minds
of the victims as well as of the public that still the State
Police authorities would be allowed to continue with the        G
investigation when allegations and offences were mostly
against them. In the present circumstances and in view
of the involvement of the police officials of the State in
this crime, the Court cannot direct the State Police
authorities to continue with the investigation and the          H
    996      SUPREME COURT REPORTS              [2010] 1 S.C.R.


A charge-sheet and for a proper and fair investigation. [Para
  65] [1024-F-H; 1025-A-C]

       1.9. The CBI Authorities shall investigate all aspects
  of the case relating to the killing of 'S' and his wife 'K'
B including the alleged possibility of a larger conspiracy.
  The report of the CBI Authorities shall be filed in this
  Court when this court will pass further necessary orders
  in accordance with the said report, if necessary. [Para 66]
  [1025-E-F]

C        R. S. Sodhi vs. State of UP. AIR 1994 SC 38; Ramesh
 · Kumari vs. State (NCT Delhi) and Ors. 2006 (2) SCC 677;
   Kashmeri Devi vs. Delhi Administration AIR 1988 SC 1323;
   Gudalure M. J. Cherian and Ors. vs. Union of India 1992 (1)
   SCC 397; Punjab and Haryana High Court Bar Association
D vs. State of Punjab and Ors. AIR 1994 SC 1023; Sheikh Hasib
   alias Tabarak v. The State of Bihar 1972 (4) SCC 773; Babu
   Lodhi v. State of UP 1987 (2) SCC 352; Prem Kumar and
   Anr. v. State of Bihar-1995 (3) SCC 228, relied on.

E        Vineet Naryan and Ors. vs. Union of India 1996 (2) SCC
    199; Union of India vs. Sushi/ Kumar Modi 1998 (8) SCC
    661; Rajiv Ranjan Singh 'La/an' (VIII) and Anr. vs. Union of
    India and Ors. 2006 (6) SCC 613; Aleque Padamsee and Ors.
    vs. Union of India and Ors. 2007 (6) SCC 171; M.C. Mehta
    vs. Union of India and Ors. 2008 (1) SCC 407, distinguished.
F
                        Case Law Reference:
          1996 (2) sec 199         Distinguished.     Para 38
          1998 (8) sec 661         Distinguished.     Para 39
G
          2006 (6) sec 613         Distinguished.      Para 42
          2001 (6) sec 111         Distinguished.     Para 44
          2008 (1) sec 407         Distinguished.      Para 45
H
 RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 997
                   ORS.

    AIR 1994 SC 38              Relied on.          Para 48     A

     2006 (2) sec 677           Relied on.          Para 50

    AIR 1988 SC 1323            Relied on.          Para 51

     1992 (1) sec 397           Relied on.          Para 52     8
    AIR 1994 SC 1023            Relied on.          Para 53

     1912 (4) sec 113           Relied on.          Para 60

     1987 (2) sec 352           Relied on.          Para 60
                                                                c
    1995 (3) sec 228            Relied on.          Para 60

    CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.)
No. 6 of 2007.

                            WITH                                D

W.P. (Crl.) No. 115 of2007.

Conmt. Petn. Crl. No. 8 of 2207 in W.P. (Crl.) No. 6 of 2007.

    Gopal Subramanium, S.G., Harin, P. Raval, ASG, . E
Dushyant A. Dave (NP), Mukul Rohtagi, Shekhar, Naphade
(NP), Tushar Mehta, AAG, Arunav Patnaik, Jinesh Kapadia,
Aman Ahluwalia, Huzefa Ahmadi (NP), Ejaz Maqbool, Abhijit
Sinha, Pardhuman Gohil, Taruna Singh, Garima Kapoor,
Meenakshi Arora, Hemantika Wahi, Jesal, Saurav Kripal, K. F
Enatoli Serna, Pinky, Sushma Suri, GP. Capt. Karan Singh
Bhati, Aishwarya Bhati, Himanshu, Malini Poduval, Shibu
Shankar Misra, E.C. Agrawala, P. Narasiman, Arunabh
Choudhury, Anupam Lal Das, Raktim Gogoi, Kashi
Vishweshwar, A. Sumathi for the appearing parties.        G

    The Judgment of the Court was delivered by

    TARUN CHATTERJEE, J. 1. Acting on a letter written by
the writ petitioner, Rubabbuddin Sheikh, to the Chief Justice
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    998     SUPREME COURT REPORTS                  [2010] 1 S.C.R.


A of India about the killing of his brother, Sohrabuddin Sheikh in
  a fake encounter and disappearance of his sister-in-law
  Kausarbi at the hands of the Anti Terrorist Squad (ATS) Gujarat
  Police and Rajasthan Special Task Force (RSTF), the Registry
  of this Court forwarded the letter to the Director General of
B Police, Gujarat to take action. This letter of the Registry of this
  Court was issued on 21st of January, 2007. After about six
  months and after several reminders, the Director General,
  Police, Gujarat, directed Ms. Geetha Johri, Inspector General,
  Police (Crime), to inquire about the facts stated in the letter. A
c case was registered as Enquiry No. 66 of 2006. From 11th of
  September, 2006 to 22nd of January, 2007 four Interim Reports
  were submitted by one V.L. Solanki, Police Inspector, working
  under Ms. Johri.

       2. In the present writ petition, the writ petitioner seeks a
D direction for investigation by the Central Bureau of Investigation
  (in short the 'CBI') into the alleged abduction and fake
  encounter of the brother of the writ petitioner Sohrabuddin by
  the Gujarat Police Authorities. The writ petitioner also seeks
  the registration of an offence and investigation by the CBI into
E the alleged encounter of one Tulsiram, a close associate of
  Sohrabuddin, who was allegedly used to locate and abduct
  Sohrabuddin and his wife Kausarbi, and was thus a material
  witness against the Police personnel. The wi"it petitioner further
  seeks a writ of habeas corpus to produce Kausarbi, the sister-
F in-law of the writ petitioner.

       3. As noted herein above, out of the four interim reports
  submitted by one V.L.Solanki, Police Inspector, working under
  Ms. Johri, only one report was submitted initially in this Court.
G It was only on 16th of May, 2007 that the other three reports
  were submitted.

         4. In the Report submitted on 12th of May, 2007, by
    Ms.Johri, it has been stated as follows:

H       "However, based on the statement of variou5 witnesses
 RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 999
        ORS. [TARUN CHATTERJEE, J.]

     and subsequent identification of the photographs of            A
     Sohrabuddin and Kausarbi taken by Inquiry Team of CID
     Crime there appears to be some discrepancy regarding
     the presence of Sohrabuddin and Kausarbi at Hyderabad
     and Ahmedabad which needs to be further enquired into.
     Further enquiry also needs to be conducted with regards        B
     (1) who were the person.s who claimed to be police who
     picked up the three passengers namely Sohrabuddin,
     Kausarbi and third unknown person. (2) what happened to
     Kausarbi after 22.11.2005 when the so-called police
     personnel took her off the bus."                               c
       5. In the same report, Ms. Johri sought permission to
 interrogate one Tulsiram who was at that time in Rajasthan Jail.
 From the record, it appears that on 27th/28th of December,
2006, an FIR was lodged in which it was stated that when
Tulsiram was sent on transit remand from Rajasthan to Gujarat,      D
two armed persons rescued him at gun point and fled with
Tulsiram. In the said FIR, it has been alleged that while search
was launched to locate Tulsiram early in the next morning, he,
along with two other persons, was spotted on a highway trying
to stop a matador van. It has also been alleged, that one of the    E
police officers who was following the matador in which Tulsiram
was traveling, accosted him, upon which Tulsiram was said to
have fired at the Police officer and the bullet was said to have
hit the mudguartl of the vehicle. The Police Officers were said
to have fired at Tulsiram in self-defence, killing him. However,    F
the other two persons somehow managed to escape in the
darkness.

     6. One Mr. Raigar, Additional Director General of Police
and Head of CID Gujarat Police who was in-charge of the             G
investigation on the incident of death of Sohrabuddin and
disappearance of Kausarbi was replaced by one Mr. O.P.
Mathur, Additional Director General of Police (prison) who was
given an additional charge as Head of CID.
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    1000     SUPREME COURT REPORTS                   [201 O] 1 S.C.R.


A        7. Ms. Johri was replaced by Mr. Rajneesh Rai, Deputy
    Inspector General, as an Investigating Officer in respect of the
    fake encounter relating to the incident of Sohrabuddin's case
    and disappearance of Kausarbi.

        8. The Writ Petitioner had, on an earlier occasion, filed a
8
  petition under Article 32 of the Constitution of India, praying for
  a direction to the Gujarat police to produce Kausarbi and for a
  fair and impartial investigation in both the episodes by the CBI
  so that the matter goes beyond the influence of the local police.
  On the said application, while issuing a notice to the Union of
C India, this Court on 22nd of January 2007 requested Mr. Gopal
  Subramanium, learned Addi. Solicitor General for India, (as he
  then was) who was present in the Court, to take instructions in
  the matter, in the meantime.

D       9. Subsequently, by another order dated 19th of March
  2007, this Court issued a notice to the State of Gujarat which
  was made returnable on 23rd of March 2007. It is evident from
  the said order that the State of Gujarat was asked to produce
  the relevant records on 23rd of March 2007. When the matter
E came up before it on 23rd of March 2007, the learned senior
  counsel for the respondent State submitted that as regards
  some of the police officers who were involved in the alleged
  acts, some of the details were collected by the State and after
  the full details were available further action would be taken in
F the matter. It was also submitted that the State would be writing
  to the Government of Madhya Pradesh for giving protection to
  the writ petitioner, residing at Village Jharnia Sheikh, Dist Ujjain,
  M.P. Three weeks time was granted to the State to file a report
  in a sealed cover. In the meantime, the report submitted by the
G Additional Solicitor General for India, (as he then was), was
  perused and placed on record. The matter came up again on
  20th of April 2007 for consideration before this Court. A week's
  time was granted to enable the State of Gujarat to make
  submissions on the report submitted by Additional Solicitor
  General for India (as he then was), a copy of which was
H
 RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 1001
        ORS. [TARUN CHATTERJEE, J.]

ordered to be supplied to the learned Counsel for the State of        A
Gujarat and other parties.

     10. On 27th of April 2007, the State of Gujarat submitted
an interim report on the investigation conducted by them in
pursuance of the orders of this Court dated 22nd of January,          8
2007, 19th of March 2007, 20th of March, 2007 and 23rd of
April 2007.

      11. At that point of time, it was submitted by the learned
counsel for the State of Gujarat before this Court that if some
more time was granted, a comprehensive status report or               C
Action Taken Report could be submitted before this Court. The
learned Attorney General for India submitted that in view of the
serious nature of the offence in which some highly placed police
officials of the State of Gujarat were alleged to have been
involved, orders may be immediately passed directing the CBI          D
to take charge of the investigation and report to this Court.

      12. This Court, by an order dated 3rd of May, 2007 ordered
that some more time may be granted to the State of Gujarat
before any further action was taken in the matter. However, after     E
going through the Interim Report of the Additional Solicitor
General and also the Interim Status Report filed by the State
of Gujarat, this Court held the view that a prima facie case was
made out for issuance of a Rule Nisi calling upon the Union of
India and the State of Gujarat to show cause why the order
                                                                      F
prayed for should not be granted and also as to why a writ of
Habeas Corpus should not be issued to produce Kausarbi in
Court. At that stage, learned senior counsel appearing for the
State of Gujarat brought to the notice of the court that the body
of Kausarbi was disposed of by burning it in village lllol,
Sabarkantha District', which fact was brought on record in the        G
Action Taken Report No. 3 submitted on 3oth of April, 2007. In
that view of the matter at that stage, this Court restrained itself
from issuing a formal writ. The State of Gujarat was directed
to submit the final status report within two weeks from that date.
An allegation was made that Ms.Johri was taken off the                H
    1002    SUPREME COURT REPORTS                  [2010] 1 S.C.R.


A   investigation for some reasons best known to the State
    Authorities. The State of Gujarat was directed to submit a report
    in that regard also.

       13. When the matter came up for hearing before this Court
B on 17th of May, 2007, Learned Attorney General for India again
  submitted before us that this was a fit case where this Court
  should pass an order directing handing over the investigation
  from the State Investigating Agency to CBI as the investigation
  would not only be made in the State of Gujarat, but also in the
  States of Andhra Pradesh and Rajasthan and for such
C investigation, cooperation of the State of Rajasthan and State
  of Andhra Pradesh and their high police officials may be
  required. Therefore, according to Attorney General for India, it
  would be difficult for the Investigating Agency of the State of
  Gujarat to make proper and thorough enquiry and submit a
D report to this Court. Mr. Ahmadi, learned counsel appearing on
  behalf of the writ petitioner also submitted that this Court should
  direct the CBI to take over the investigation at the same time
  permitting Ms.Johri and Mr. Rajneesh Rai to make the
  investigation jointly and submit a report to this Court. Mr. Gopal
E Subramanium, learned Addi. Solicitor General for India (as he
  then was) also agreed with the submissions of Mr.Ahmadi that
  it was a fit case for handing over the investigation to CBI from
  the State of Gujarat.

F      14. From the Action Taken Report No. 4 submitted before
  this Court on 14th of May, 2007, it was found that the assistance
  of Directorate of Forensic Science, Gujarat State, and BJ
  Medical College, Ahmedabad has been sought to obtain
  advice on the exhibits collected from the scene of offence.
G Permission of the Court was also sought for microanalysis and
  other related tests in case of the accused namely, (1) Shri D.B.
  Vanzara, IPS, Ex-DIG of Police, Border Range, Kutch-Bhuj, (2)
  Shri Rajkumar Pandyan, Ex-SP, CID, IB and (3) Shri Dinesh
  MN, IPS, SP, Alwar, Rajasthan. The application was pending
H then. In Action Taken Report No. 4, it was also stated that efforts
  RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 1003
         ORS. [TARUN CHATTERJEE, J.]

 were being made to arrest the remaining accused officers and         A
 men against whom there was prima facie evidence. Efforts
 were being made to trace the remains of Kausarbi. A well
 where reportedly the remains of Kausarbi were disposed of
 was dug up and samples collected were sent to Forensic
 Science Laboratory, Gandhinagar for further analysis and for         B
 comparison with the soil samples taken from the scene where
 the body of Kausarbi was alleged to have been disposed of
 by burning at lllol Village, Sabarkanta District, in the State of
 Gujarat. From the Action Taken Report No. 4 it appeared that
 the following investigations were still awaited:                     c
      a. Andhra Pradesh Police Personnel who helped the ATS,
      Gujarat in picking up the accused was yet to be identified.
      Cooperation of DGP & IGP, Andhra Pradesh was enlisted
      in this regard.
                                                                 .    D
      b. Apprehension of accused of Rajasthan for which help
      of DGP & IGP Rajasthan was enlisted.

      c. Reports from Directorate of Forensic Science, Gujarat
      State.
                                                                      E
      d. Identification of the farm house to which Kausarbi was
      shifted and method by which she might have died and
      those involved in the crime, if any.

       15. From the aforesaid report, it also appeared that the       F
 charge sheet shall be filed as soon as the evidence came on
 record. It was observed by this Court at that point of time that
 on a perusal of the materials already brought on record, it was
 difficult to conclude at that stage that the investigation was not
 proceeding towards correct direction. At that stage, we did not      G
 find it appropriate to direct the State of Gujarat to include Mr.
 Raigar with Ms. Johri for completing the investigation.

       16. At that stage, it was submitted before this Court by the
. learned senior counsel appearing for the state of Gujarat that
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    1004    SUPREME COURT REPORTS                 [2010] 1 S.C.R.


A the final report would be submitted within four to six weeks from
  15th of May, 2007.

        17. Fifth Action Taken Report was dated 2nd of July, 2007.
  In this report, taking a departure from what was stated in the
  Fourth Action Ta~"" Report, Ms.Johri stated that the Andhra
8
  Pradesh Police authorities had denied any official invo' 1ement
  of Andhra Pradesh Police Personnel. Exa.11ining 194
  witnesses, they had been able to array another six persons as
  accused. Against the order of the Metropolitan Court rejecting
  permission of the Court for conducting the NARCO And1ysis
C test of six accused persons, an appeal had been filed in the
  Sessions Court.

       18. The body of Kausarbi was cremated on 29th of
  November, 2005 h lllol village. The assistance of Directorate
D of. Forensic Science was sought tr establish whether soil
  samples collected from lllol village conta .. 1ed any rem2 1s of a
  human body. As per FSI dated 28th ot May, 2007, nothing
  incriminating was found.

E        19. The investigation was pending with respect to i) A ·e~
    of two police personnel ii) To establish the identity of Anonr<
    Pradesh Police personnel who might have unofficially helpec
    ATS officials.

        20. Charge sheet was proposed to be filed within
F   prescribed time frame against the accused who was arrested.

        21. On 16th of July, 2007, this Court directed that a copy
  of the charge sheet must be supplied to the Addi. Solicitor
  General for India (as he ,hen was) after taking note of the fact
G that the 6th Action Taken Report dated 14th of July, 2007 was
  filed in court. This Report reiterated the stand that no official
  assistance was rendered by Andhra Pradesh Police to ATS
  Gujarat. Charge sheet had been filed in the Court of Chief
  Metropolitan Magistrate against 13 accused for Criminal
H Conspiracy, abduction, wrongful confinemen murder etc. 13
  RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 1005
         ORS. [TARUN CHATTERJEE, J.]

  have been arrested. One of the 13 accused whose names had            A
  been listed is one Mr. N.V. Chauhan, PSI who, in the previous
. ATR, had been mentioned as yet to be arrested. However, the
  name of one Mr. Jadeja, Driver PC who was also supposed
  to be arrested as per previous ATR, did not appear among the
  names -of the accused who were arrested. Evidently, he had           B
  not been charge sheeted.

     22. The motives for killings wa, at buted as "name, fame
 and promotion'', in case of Sohraouddin's death and
 "destruction of evidence", in Kausarbi's case.
                                                                       c
      23. The report expressly states that no link of Tulsiram
 Prajapati had been established in this case. The third person
 who was abducted was not to be said Tulsiram Prajapati.

      24. Ms.Johri also stated that the investigation had been         D
 carried on in a fair and impartial manner under her direct
 supervision.

      25. It was stated that the writ petitioner did not cooperate
 with the investigation. It is also stated that copies of ATR cannot
 be supplied as the same would help the accused.                       E

     26. On 2nd of August, 2007, the Seventh Action Taken
Report was filed, which stated that the third person who was
picked up was one Kalimuddin, who was suspected to be an
informer of Police. He could be hiding somewhere, unharmed.            F
It again detailed the efforts of the State CID (Crime) to make
sure that none of the accused goes scot-free. Accused Police
Officers, irrespective of their rank, had been arrest.;d. They
were suspended or transferred to avoid their interfe·ence with
the case. Police personnel themselves had deposed against              G
the accused Police officers. No anticipatory bail was granted
to any of the accused.

    27. Mr. Jadeja was the one who had first revealed the
 name of N.K.Amin on 26th of April, 2007.
                                                                       H
    1006    SUPREME COURT REPORTS                  (201 O] 1 S.C.R.


A      28. The accused had challenged subjecting them to
  NARCO analysis and the matter was pending before the Court.
  The Report submitted that analyzing the voluminous details of
  the calls made by the accused, collected from various service
  providers, would take time. It was also urged that the Habeus
B Corpus filed by Rubabbuddin Sheikh does not survive as
  Kausarbi's body was found to be cremated.

       29. On 15th of September, 2008, Ms. Johri filed the Eighth
  Action Taken Report. It mentioned that a supplementary charge
  sheet was filed on 10th of December, 2007. It also detailed the
C status of bail applications rejected or pending. The Writ
  Petitioner filed an application in the Sessions Court, which was
  partly allowed and the Investigating Officer Police Inspector
  Shri. D.H.Trivedi, was directed to carry out further investigation
  under Section 173(8) of the Code of Criminal Procedure within
D 90 days.

         30. The details of communication between the witnesses
  a!'ld the owner of the Crane which was sent to pull out the tempo
  which got bogged while carrying firewood for the cremation of
E Kausarbi's body were revealed. The call details revealed the
  movements of the accused, their connection between each
  other, and the wrongful confinement of Kausarbi and
  Sohrabbuddin in Disha farm.

       31. In order to establish motive as mentioned in the charge
F sheet, details of 15 criminal cases in which Sohrabbuddin was
  involved were collected. Efforts were still made to trace
  Kalimuddin and to identify the Police officers and men of
  Andhra Pradesh who had allegedly helped the accused though
  no involvement of the Police Personnel of Andhra Pradesh was
G suspected. On the question of NARCO Analysis, the matter was
  heard by this Court and the judgment was kept reserved. FSL
  Gujarat had stated that NARCO Analysis would be conducted
  only with the consent of the accused. The Investigating Officer
  was asked to move the High Court in the matter.
H
 RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 1007
        ORS. [TARUN CHATTERJEE, J.]

      32. After eight Action Taken Reports were submitted and A
 objections thereto were also filed by the parties, the writ petition
 came up for final hearing for the purpose of deciding whether
 in the facts and circumstances of the present ca~d, it would be
just and proper to transfer the case to the CBI Authorities for
 the purpose of investigation into the allegations made on behalf B
 of the writ petitioner. On this aspect of the matter, we have heard
 Mr.Dushyant Dave, learned senior counsel for the writ petitioner
 and Mr.Gopal Subramanium, learned Solicitor General for India,
 who appeared as Amicus Curiae and Mr.Mukul Rohtagi,
 learned senior counsel for the State of Gujarat and other c
 learned counsel appearing for the parties. After hearing the
 learned senior counsel and after going through the eight Action
 Taken Reports and other materials on record, two questions
were articulated by the learned counsel for the parties - one is
whether after the charge sheet was submitted by the police and 0
the trial was going on, under that circumstances whether the
 investigation can be transferred to the CBI Authorities.
 Secondly, it was argued that in respect of the fact that eight
Action Taken Reports were submitted but from the said reports,
it would be clear that the Police Authorities of the State of
Gujarat were not taking proper action in the matter although E
some of their high police officials were taken to custody.
Therefore, let u::. first consider the first question, namely,
whether investigation can be transferred to CBI Authorities or
any other independent agency when the charge sheet has
already been submitted. In support of his contention that the F
investigation can be transferred to the CBI Authorities when the
charge sheet in the criminal proceeding was already filed,
reference was made to in Kashmeri Devi vs. Delhi
Administration & Anr. [AIR 1988 SC 1323] by the learned
senior counsel for the writ petitioner. He .also relied on a G
decision of this court in the case of lnder Singh vs. State of
Punjab & Ors. [1994 (6) SCC 275] in which this Court held that
the enquiry should be transferred to the CBI Authorities for
investigation in view of the fact that the police authorities had
not been able to locate the whereabouts of the abducted H
    1008    SUPREME COURT REPORTS                  [201 O] 1 S.C.R.


A persons. Therefore, these decisions were cited by the learned
  counsel for the writ petitioner to show that even after the charge
  sheet has been filed in the Court of Competent Jurisdiction, this
  Court is empowered to direct the CBI Authorities or any other
  independent agency to take over the investigation from the
B police authorities. The learned counsel for the writ petitioner
  also placed strong reliance on a decision of this Court in the
  case of Gudalure M.J.Cherian & Ors. vs. Union of India [1992
  (1) sec 397] from which it also appears that although the
  charge sheet was filed in that case, this Court directed the CBI
c to hold further investigation in respect of the offence so
  committed. Similar is the question raised in P & H High Court
  Bar Association vs. State of Punjab & Ors. [AIR 1994 SC
  1023] in which case also the investigation was handed over to
  the CBI Authorities after the charge sheet was submitted in the
  court. While making such order, this Court observed :
0
        "The High Court was wholly unjustified in closing its eyes
        and ears to the controversy which had shocked the lawyer
        fraternity in the Region. For the reasons best known to it,
        the High Court became wholly oblivious to the patent facts
E       on the record and failed to perform the duty entrusted to it
        under the Constitution. After giving our thoughtful
        consideration to the facts and circumstances of this case,
        we are of the view that the least the High Court could have
        done in this case was to have directed an independent
F       investigation/enquiry into the mysterious and most tragic
        abduction and alleged murder of Kulwant Singh, Advocate
        and his family.

        We are conscious that the investigation having been
        completed by the police and charge-sheet submitted to the
G
        court, it is not for this Court, ordinarily, to reopen the
        investigation. Nevertheless, in the facts and circumstances
        of the present case, to do complete justice in the matter
        and to instill confidence in the public mind it is necessary,
        in our view, to have fresh investigation in this case through
H
 RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 1009
        ORS. [TARUN CHATTERJEE, J.]

     a specialised agency like the Central Bureau of                  A
     Investigation (CBI)."

      33. Accordingly, the learned senior counsel appearing for
the writ petitioner submitted that even if the charge sheet was
submitted it was still open to the court to direct investigation to   B
be made by the CBI Authorities and accordingly in view of the
above position in law, this Court, considering the facts and
circumstances of the present case, should direct the CBI
Authorities to investigate the offences alleged to have been
committed by some of the police authorities of the State of
Gujarat and submit a report if this Court is of the view that the     C
State Police Authorities who had already filed eight Action
Taken Reports had not done such investigation in the proper
direction nor had they investigated in a fair and proper manner.

      34. This submission of the learned senior counsel for the       D
writ petitioner was hotly contested by Mr.Mukul Rohtagi, learned
senior counsel who appeared for the State of Gujarat.
According to Mr. Rohtagi, after the charge sheet was submitted
in court, it was not open to the court to hand over the
investigation to the CBI or any other independent agency and          E
in support of that contention a decision of this Court in the case
of Vineet Narayan & Ors. vs. Union of India [1996 (2) SCC
199] was relied on. In this decision, this Court observed:

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

          However, if in respect of any such person the final
    report after full investigation is that no prima facie case is    G
    made out to proceed further, so that the case must be
    closed against him, that report must be promptly submitted
    to this Court for its satisfaction that the authorities
    concerned have not failed to perform their legal obligations
    and have reasonably come to such conclusion. No such              H
    1010    SUPREME COURT REPORTS                    [201 O] 1 S.C.R.


A       report having been submitted by the CBI or any other
        agency till now in this Court, action on such report by this
        Court would be considered, if and when _that occasion
        arises."

B      35. Subsequent to the aforesaid decision of this Court,
  another decision of this Court, namely, Union of India vs. Sushi/
  Kumar Modi [1998 (8) SCC 661] was relied on by Mr.Rohatgi,
  learned senior counsel in which this Court observed after
  considering and following the decision in Vineet Narayan's
C case that once a charge sheet is filed, the adequacy or
  otherwise of the charge sheet and the investigation cannot be
  gone into by this C urt under Article 32 of the Constitution of
  India and the only remedy which can be pursued if any aggrieved
  party feels that in some areas the investigation is inadequate
  is an application under Section 173 (8) of the Code of Criminal
D Procedure. This Court observed as follows:

        "This position is so obvious that no discussion of the point
        is necessary. However, we may add that this position has
        never been doubted in similar cases dealt with by this
E       Court. It was made clear by this Court in the very first case,
        namely, Vineet Narain v. Union of India that once a
        chargesheet is filed in the competent court after completion
        of the investigation, the process of monitoring by this Court
        for the purpose of making the CBI and other investigative
F       agencies concerned perform their function of investigating
        into the offences concerned comes to an end and
        thereafter it is only the Court in which the charge sheet is
        filed which is to deal with all matters relating to the trial of
        the accused including matters falling within the scope of
        Section 173(8) of the Code of Criminal Procedure. We
G
        make this observation only to reiterate this clear position
        in law so that no doubts in any quarter may survive. It is
        therefore clear that the impugned order of the High Court
        dealing primarily with this aspect cannot be sustained."

H       36. Another decision of this Court which was strongly relied
  RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 1011
         ORS. [TARUN CHATTERJEE. J.]

on by Mr.Mukul Rohatgi, learned senior counsel appearing for A
the State of Gujarat is the decision in Rajiv Ranjan Singh
'La/an' (VIII) and Anr. Vs. Union of India & Ors. [2006 (6) SCC
613]. In this decision referring to the case of Sushi/ Kumar
Modi (supra) and Vineet Narayan (supra}, this court held :
                                                                    B
     "It is thus clear from the above judgment that once a
     charge-sheet is filed in the competent Court after
     completion of the investigation, the process,of monitoring
     by this Court for the purpose of making CBI and other
     investigative agencies concerned perform their function of C
    investigating into the offences concerned comes to an end
    and thereafter, it is only the Court in which the charge-sheet
    is filed which is to deal with all matters relating to the trial
    of the accused including matters falling within the scope
    of Section 173(8).
                                                                     D
            We respectfully agree with the above view
    expressed by this Court. In our view, monitoring of pending
    trial is subversion of criminal law as it stands to mean that
    the Court behind the back of the accused is entering into
    a dialogue with the investigating agency. Therefore, there E
    can be no monitoring, after the charge sheet is filed."

     37. Mr.Rohatgi, learned senior counsel appearing for the
State of Gujarat had then drawn our attention to another
decision of this Court in the case of Hali Singh vs. State of F
U.P. ((2006) 5SCC 733) in which it was held that when there
is a remedy provided under the Code of Criminal Procedure,
1973, the CBI Authorities cannot be directed to investigate into
the matter.

     38. Before we take up the decisions cited at the Bar from G
the side of the writ petitioner, we may deal with the decisions
cited by Mr.Rohatgi, learned senior counsel appearing for the
State of Gujarat. The first decision is Vineet Narayan (supra).
In that case, it was alleged that the CBI and the Revenue
Authorities had failed to perform their duties and legal H
    1012     SUPREME COURT REPORTS                    [2010] 1 S.C.R.


A   obligations inasmuch as the investigation into "Jain Diaries"
    seized in raids conducted by the CBI is concerned.

            39. From a careful examination of this decision of this Court
     relied on by the learned senior counsel appearing for the
     respondent, we are not in a position to say that the said
B decision has clearly held that after the charge sheet is
     submitted, the question of handing over the investigation of the
     criminal case to the CBI cannot arise at all. From that decision,
     it is clear that the CBI and the Revenue Authority had failed to
     perform their duties and legal obligations inasmuch as the
C investigation into 'Jain Diaries' seized in raids conducted by
    the CBI was concerned. Therefore, we are unable to accept the
     contention of Mr.Rohatgi that this decision can at all help the
     State of Gujarat to substantiate their argument that after the
    charge sheet is filed in court, there was no question that the
D investigation cannot be handed over to the CBI authorities. So
    far as the decision cited by Mr.Rohatgi in Union of India vs.
    Sushi/ Kumar Modi (supra) is concerned, it is clear that the
    said decision was rendered following the decision in the case
    of Vineet Narayan (supra). In view of our discussions made in
E . respect of the Vineet Narayan's case, we do not think that any
    advantage could be taken by the State of Gujarat to hold that
    after the charge sheet is submitted it was not open for the court
    to hand over the investigation to an independent agency.

F       40. In Vineet Narayan's case (supra), the fact was that the
    investigation was already with the CBI Authorities and in that
    investigation charge sheet was submitted. In that context, this
    Court observed that once the charge sheet has been submitted,
    the CBI Authorities cannot approach the High Court for
G · issuance of directions in such investigation where the charge
    sheet was already submitted.

        41. In Sushi/ Kumar Modi (supra), we find that the
    investigation was also with the CBI and charge sheet in that
    investigation was submitted, therefore, this Court in Sushi/
H   Kumar Modi (supra) observed that there was no occasion for
  RUBABBUDOIN SHEIKH v. STATE OF GUJARAT & 1013
         ORS. [TARUN CHATTERJEE, J.]
any of the officer of the CBI to approach the High Court or for A
the Division Bench of the High Court to issue any directions,
oral or otherwise, for seeking the aid of the army for execution
of the warrant against Shri Lalu Prasad Yadav. Again in Para
7 of the decision in Sushi/ Kumar Modi's case (supra), it would
be evident that the CBI Authorities were investigating the B
offences and that is the reason this Court observed that after
the charge sheet was filed, no directions can be taken by the
CBI Authorities or its officers from the High Court or this Court ·
as the case may be. This is not the case before us. It is true
that in the present case, the charge sheet has already been c
submitted but that does not debar, in our view, this court from
handing over the investigation to the CBI Authorities.
       42. So far as Rajiv Ranjan Singh's case (supra) which
 was relied on by Mr.Mukul Rohatgi, learned senior counsel for
 the State of Gujarat, is concerned, we find that this decision        D
 was also rendered relying on Sushi/ Kumar Modi's case
 (supra) and Vineet Narayan's case (supra) as noted herein
 earlier. In that case also, the process of monitoring by this Court
 for the purpose of making the CBI investigating agency perform
 their functions and investigate into the offence would come to        E
an end but it is repeated that in the present case the question
is whether an investigation can be handed over to the CBI
.authorities even if the charge sheet is submitted. The question
of monitoring investigation by the CBI Authorities in all the three
cases cited by Mr.Rohatgi in the facts and circumstances of            F
the present case cannot arise at all.

     43. It was next contended by Mr.Rohatgi, learned senior
counsel for the State of Gujarat that itwas not open for this court
under Article 32 of the Constitution to direct the CBI Authorities     G
or any other independent agency to investigate into the matter
when the police authorities are proceeding with the trial and
charge sheet has already been submitted. Therefore, according
to Mr.Rohatgi when there is specific remedy provided under the
Code of Criminal Procedure, 1973, this Court cannot again              H
    1014    SUPREME COURT REPORTS                   [2010] 1 S.C.R.


A direct the CBI to investigate into the offence alleged by allowing
  a writ petition under Article 32 of the Constitution.

       44. In support of this contention, reliance was also placed
  in the case of Aleque Padamsee & Ors. vs. Union of India &·
B Ors. [2007 (6) sec 171].

        45. Reliance was also placed in a decision of this Court
  in MC.Mehta vs. Union of India & Ors. [2008 (1) SCC 407]
  where this Court held that once the court is satisfie<;I itself that
  a proper investigation has been carried out, it would not venture
C to take over the functions of the Magistrate or pass any order
  which would interfere with its judicial functions. Accordingly,
  Mr.Mukul Rohatgi submitted that in the absence of any error
  being committed by the police authorities in conducting the
  investigation, it would not be proper for this Court to exercise
D its power under Article 32 of the Constitution and direct that the
  CBI authorities or any other independent agency should be
  given the charge of investigating the offence alleged in this writ
  petition.
E     -46. Accordingly, Mr.Mukul Rohatgi, learned senior counsel
  submitted that in view of the decisions of this Court, it would
  not be proper for this Court at this stage, when the investigation
  has been carried out by the police without any blemish, to hand
  over the investigation to the CBI authorities or any other
F independent agency particularly when the charge sheet has
  already been submitted.

      47. Having heard the learned senior counsel appearing for
  the parties and after going through the eight Action Taken
  Reports submitted by the Police Authorities before this Court
G and after considering the decisions of this Court cited at the
  Bar and the materials on record and considering the nature of
  offence sought to be investigated by the State Police
  Authorities who are themselves involved in such crime, we are
  unable to accept that the investigation at this stage cannot be
H handed over to the CBI Authorities or any other independent
 RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 1015
        ORS. [TARUN CHATTERJEE, J.]

agency. We have already discussed the decisions cited by               A
Mr.Mukul Rohatgi, learned senior counsel appearing for the
State of Gujarat and have already distinguished the said cases
and came to a conclusion that those decisions were rendered
when CBI enquiries have already been made and at that stage
this Court held that after the charge sheet is submitted, the CBI      B·
authorities would not be able to approach this Court or the High
Court to have issuance of directions from this Court.

    48. In R.S.Sodhi vs. State of UP. (AIR 1994 SC 38) on
which reliance was placed by the learned senior counsel
appearing for the writ petitioner, this Court observed :               C

          "We have perused the events that have taken place
    since the incidents but we are refraining from entering upon
    the details thereof lest it may prejudice any party but we
    think that since the accusations are directed against the          D
    local police personnel it would be desirable to entrust the
    investigation to an independent agency like the Central
    Bureau of Investigation so that all concerned including
    the relatives of the deceased may feel assured that an
    independent agency is looking into the matter and that             E
    would lend the final outcome of the investigation
    credibility. However, faithfully the local police may carry
    out the investigation, the same will lack credibility since
    the a/legations are against them. It is only with that in mind
    that we having thought it both advisable and desirable as          F
    well as in the interest of justice, to entrust the investigation
    to the Central Bureau of Investigation."
                                            (Emphasis supplied)

     49. This decision clearly helps the writ petitioner for           G
handing over the investigation to the CBI Authorities or any
other independent agency. It is an admitted position in the
present case that the accusations are directed against the local
police personnel in which High Police officials of the State of
Gujarat have been made the accused. Therefore, it would be             H
    1016     SUPREME COURT REPORTS                    [2010) 1 S.C.R.


A proper for the writ petitioner or even the public to come forward
  to say that if the investigation carried out by the police personnel
  of the State of Gujarat is done, the writ petitioner and their
  family members would be highly prejudiced and the
  investigation would also not come to an end with proper finding
B and if investigation is allowed to be carried out by the local
  police authorities, we feel that all concerned including the
  relatives of the deceased may feel that investigation was not
  proper and in that circumstances it would be fit and proper that
  the writ petitioner and the relatives of the deceased should be
c assured that an independent agency should look into the matter
  and that would lend the final outcome of the investigation
  credibility, however, faithfully the local police may carry out the
  investigation, particularly when the gross allegations have been
  made against the high police officials of the State of Gujarat
  and for which some high police officials have already been taken
0
  into custody.

       50. It is also well known that when police officials ofthe
  State were involved in the crime and in fact they are
  investigating the case, it would be proper and interest of justice
E would be better served if the investigation is directed to be
  carried out by the CBI Authorities, in that case CBI authorities
  would be an appropriate authority to investigate the case. In
  Ramesh Kumari vs. State (NCT Delhi) & Ors. (2006 (2) SCC
  677), this Court at Paragraph 8 observed :
F
        "................... We are also of the view that since there is
        allegation against the police personnel, the interest of
        justice would be better served if the case is registered and
        investigated by an independent agency like CBI."

G       51. In Kashmeri Devi vs. Delhi Administration, (supra),
  this court held that in a case where the police had not acted
  fairly and in fact acted in partisan manner to shield real culprits,
  it would be proper and interest of justice will be served if such
  investigation is handed over to the CBI authorities or an
H independent agency for proper investigation of the case. In this
 RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 1017
        ORS. [f ARUN CHATIERJEE, J.]

case, taking into consideration the grave allegations made            A
against the high police officials of the State in respect of which
some of them have already been in custody, we feel it proper
and appropriate and in the interest of justice even at this stage,
that is, when the charge sheet has already been submitted, the
investigation shall be transferred to the CBI Authorities for         B
proper and thorough investigation of the case. In Kashmeri Devi
(supra), this Court also observed as follows:-

     "Since according to the respondent charge-sheet has
     already been submitted to the Magistrate we direct the trial     C
     court before whom the charge sheet has been submitted
     to exercise his powers under Section 173(8) Cr. P.C. to
     direct the Central Burea·u of Investigation for proper and
     thorough investigation of the case. On issue of such
     direction the Central Bureau of Investigation will investigate
     the case in an independent and objective manner and it           D
     will further submit additional charge sheet, if any, in
     accordance with law."

     52. In Gudalure M.J.Cherian (supra), in that case also the
charge sheet was submitted but inspite of that, in view of the        E
peculiar facts of that case, the investigation was transferred
from the file of the Sessions Judge, Moradabad to Sessions
Judge, Delhi. lnspite of such fact that the charge sheet was filed
in that case, this Court directed the CBI to hold further
investigation inspite of the offences committed. In this case at      F
Page 400 this court observed :

    " ......................... The investigation having been
    completed by the police and the charge sheet submitted
    to the court, it is not for this court ordinarily to reopen the
    investigation specially by entrusting the same to a               G
    specialized agency like CBI. We are also conscious that
    of late the demand for CBI investigation even in police
    cases is on the increase. Nevertheless - in a given
    situation, to do justice between the parties and to instill
    confidence in the public mind - it may become necessary           H
    1018     SUPREME COURT REPORTS                  [2010] 1 S.C.R.


A        to ask the CBI to investigate a crime. It only shows the
         efficiency and the independence of the agency."

       53. In this connection, we may reiterate the decision of this
  Court in the case of P & H High Court Bar Association (supra)
B strongly relied on by the learned senior counsel appearing for
  the writ petitioner. A reference of the paragraph of the said
  decision on which reliance could be placed has already been
  made in Para No.32 from which it would be evident that in order
  to do complete justice in the matter and to instill confidence in
C the public mind, this court felt it necessary to have investigations
  through the specialized agency like the CBI.

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

       55. Keeping this discussion in mind, that is to say, in an
  appropriate case, the court is empowered to hand over the
G investigation to an independent agency like the CBI even when
  the charge sheet has been submitted, we now deal with the facts
  of this case whether such investigation should be transferred
  to the CBI Authorities or any other independent agency in spite
  of the fact that the charge sheet has been submitted in court.
H On this ground, we have carefully examined eight Action Taken
 RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 1019
        ORS. [TARUN CHATTERJtE, J.]

Reports submitted by the State Police Authorities before us              A
and also the various materials produced and the submissions
of the learned counsel for both the parties. From a careful
examination of the materials on record including the eight Action
Taken Reports submitted by the State Police Authorities and
considering the respective submissions of the learned senior             8
counsel for the parties, we are of the view that there are large
and various discrepancies in such reports and the investigation
conducted by the police authorities of the State of Gujarat and
also the charge sheet filed by the State Investigating Agency
cannot be said to have run in a proper direction. It appears from        C
the charge sheet itself that it does not reveal the identity of police
personnel of Andhra Pradesh even when it states that
Sohrabbuddin and two others were picked up by Gujarat Po)ice
Personnel, accompanied by seven personnel of Hyderabad
Police. It also appears from the Chargesheet that Kausarbi was           D
taken into one of the two Tata Sumo Jeeps in which these
police personnel accompanied the accused. They were not
even among the people who were listed as accused. Mr.Gopal
Subramanium, Addi. Solicitor General for India (as he then was)
was justified in making the comment that an honest investigating
agency cannot plead their inability to identify seven personnel          E
of the Police Force of the State.

      56. From the charge sheet, it also appears that the third
person was 'sent somewhere'. However, it appears that the
literal translation of the Chargesheet in Gujarati would mean that       F
he was 'anyhow made to disappear'. From this, we are also
satisfied that an attempt was made by the investigating agency
of the State of Gujarat to mislead the Court. Also there had
been no mention of Accused No. 12 (Dr.N.K.Amin) as a part
of the criminal conspiracy in the charge sheet, who otherwise            G
finds mention in the original charge sheet.

     57. With respect to the killing of Kausarbi, it was only stated
that she was seen in the company of the ATS personnel, on
26th of November, 2005 and her dead body was taken for
                                                                         H
    1020    SUPREME COURT REPORTS                  [2010) 1 S.C.R.

A cremation on 29th of November, 2005. It is not clear from the
  eight Action Taken Reports filed by the police authorities of the
  State of Gujarat as to what happened to Kausarbi in the
  meanwhile, nor is the mode of killing stated. The investigating
  agency of the State of Gujarat has made a false excuse for not
8 conducting the NARCO Analysis of the accused because a
  judgment of this Court is pending on the matter, though the
  Sessions Judge had permitted such NARCO Analysis. In our
  view, it is merely an excuse for not being able to conduct the
  investigation relating to mode and manner of killing of Kausarbi.

C       58. It also appears from the charge sheet that it identifies
  the third person who was taken to Disha farm as Kalimuddin.
  But it does not contain the details of what happened to him once
  he was abducted. The possibility of the third person being
  Tulsiram Prajapati cannot be ruled out, although the police
D authorities or the State had made all possible efforts to show
  that it was not Tulsiram. In our view, the facts surrounding his
  death evokes strong suspicion that a deliberate attempt was
  made to destroy a human witness.

E       59. So far as the call records are concerned, it would be
  evident from the same that they had not been analyzed properly,
  particularly the call data relating to three senior police officers
  either in relation to Sohrabbuddin's case or in Prajapati's case.
  It also appears from the charge sheet as well as from the eight
F Action Taken Reports that the motive, which is very important
  in the investigation reports was not properly investigated into
  as to the reasons of their killing. The motive of conspiracy
  cannot be merely fame and name. No justification can be found
  for the investigating officer Ms. Johri walking out the
  investigation with respect to Tulsiram Prajapati's death without
G even informing this Court. That apart, the charge sheet was filed
  in the court of Chief Metropolitan Magistrate, Ahmadabad
  against 13 persons who were charge sheeted for criminal
  conspiracy, abduction, wrongful confinement and murder etc.
  13 were arrested. One of the 13 accused whose names had
H
 RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 1021
        ORS. [TARUN CHATTERJEE, J.]
been listed is one Mr.N.V.Chauhan, PSI who in the previous A
Action Taken Report, was mentioned as yet to be arrested.
However, in the 5th Action Taken Report, the name of
Mr.Jadeja, driver (Police Constable) wtro was also supposed
to be arrested as per previous Action Taken Report was not
appearing among the names of the accused who were B
arrested. Evidently, he had not been charge sheeted. From the
above factual discrepancies appearing in eight Action Taken
Reports and from the charge sheet, we, therefore, feel that the
police authorities of the State of Gujarat had failed to carry out
a fair and impartial investigation as we initially wanted them to c
do. It cannot be questioned that the offences the high police
officials have committed was of grave nature which needs to
be strictly dealt with. We have observed that from the record, it
was found that Mr.V.L.Solanki, an investigating officer, was
proceeding in the right· direction, but Ms.Johri had not been 0
carrying out the investigation in the right manner, in view of our
discussions made herein above. It appears that Ms.Johri had
not made any reference to the second report of Solanki, and
that though his first report was attached with one of her reports,
the same was not forwarded to this Court. Therefore, we are E
of the view that her mentioning the criminal background of
Sohrabbuddin and the discussion among the accused officers
concerning Sohrabbuddin was meant to obfuscate the enquiry.

      60. In our view , the investigation of crime was carried out
de hors the mandate contained in the Cr.P.C. and particularly        F
Chapter XII containing Section 154-176 of the Code. There had
been no fresh FIR filed despite primary investigation No. 66 to
make the same the basis for Investigation and trial. In the case
of Sheikh Hasib alias Tabarak v. The State of Bihar [(1972)
4 sec 773], it was held that the object of FIR, from the point       G
of view of the investigating authorities, is to obtain information
of the alleged criminal activity so as to take suitable steps for
tracing and bringing to book the guilty party. Admittedly, the FIR
dated 16th of November, 2005 which was filed following the
alleged encounter was a fabricated one and, therefore, it could      H
           1022    SUPREME COURT REPORTS                  [2010] 1 S.C.R.


       A not have formed the basis of the real investigation to find the
         truth. Ms. Geeta Johri herself in her report dated 7th of
         December, 2006 had conceded that ATS was not a regular
         police station in which FIR should have been filed. It was further
         submitted that the investigation and charge sheet were silent
       B on the motive behind the 'killings'. The only motive stated is
         fame. In the cases of Babu Lodhi v. State of UP (1987) 2     sec
         352 and Prem Kumar and Anr. v. State of Bihar, (1995) 3 SCC
         228, it was held that motive assumes greater significance in
         case where the case rests on circumstantial evidence, as in
       c the present case. That apart, from the Action Taken Reports
         submitted by the State Police Authorities, we also find that the
         State Police Authorities of the Gujarat had to take help from
         the other police officials of other States, namely, Andhra
         Pradesh and Rajasthan. lfthe investigation is transferred to the
         CBI Authorities it would be fair and proper that the other State
       0
         police officials should also help the CBI Authorities in coming
         to a final conclusion on the allegations made by the writ
         petitioner and also on the offences alleged to have committed
         by some of them.

       E       61. Mr.Rohatgi, learned senior counsel appearing for the
 ,..     State of Gujarat sought to argue that when the State of Gujarat
:        had completed free and professional investigation, and also had
         filed periodical Action Taken Reports and since the elaborate
         charge sheet had also been filed by the State including all
       F documentary, oral and scientific evidence, along with the
         papers pertaining to the preliminary inquiry including the
         periodical interim reports submitted by the Inquiry officer to the
         Supervisory officer during such inquiry, it would not be proper
         for this Court to transfer the investigation to any other agency.
       G According to Mr.Rohatgi, if this Court finds that the investigation
         is incomplete in respect of lacunae in respect of which other
         remedies are available, in that case it would be open to this
         court to direct further investigation in respect of lacunae to be
         filled up by further investigatioo.Jhis was not the position in the
       H present case. According to Mr.Rohatgi, a detailed charge sheet
 RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 1023
        ORS. [TARUN CHATIERJEE, J.]

has been filed and subsequent to the filing of the said detailed     A
charge sheet, a supplementary charge sheet has also been
filed on 10th of December, 2007 with complete evidence
including oral, documentary and scientific evidence to bring
home the guilt of the accused before the Competent Court.
Mr.Rohatgi further submitted that the findings in the Charge-        8
sheet have already been summarized in the affidavit and the
Investigating Agency has collected voluminous oral &
documentary evidence to ensure that the ·charges leveled
against them are adequately proven. Further, the investigating
agency has also taken steps including Crime Scene                    C
Reconstruction, taking Expert Advice and Video Recording.

      62. Mr.Rohatgi, further submitted that in order to enable
this Court to decide what could be in the interests of justice,
the criminal antecedents of the Sohrabuddin, his father, and his
brother have also been enumerated. It was further submitted          D
that assistance from the Dept. of Police, Andhra Pradesh was
also received as ordered by this Court. However, the Andhra
Pradesh Police Officers had not been identified. It was urged
that this would not affect the conviction of the accused in any
manner. Similarly, it was submitted that non-identification of the   E
third person who was abducted along with Sohrabuddin and
Kausarbi would also not affect the prosecution case.

     63. Mr.Rohatgi further submitted that since the charge-
sheet has already been filed, it would not be necessary to go
                                                                     F
into the preliminary inquiry conducted prior to the registration
of the offence. Giving the aforesaid particulars on the question
of investigation by the State Police Authorities, Mr.Rohatgi
submitted that the enquiry was conducted in an independent
and impartial manner and the investigating team has been
given complete independence with respect to such an enquiry.         G

     64. It was further contended by Mr.Rohatgi that the writ
petitioner approached the competent court under Section
173(8) of the Cr.P.C. in accordance with whose directions,
further investigation was also conducted. The report on such         H
    1024     SUPREME COURT REPORTS                   [2010] 1 S.C.R.

A investigation could not be submitted before this Court because
  this Court had stayed the proceedings before the Competent
  Court and the report is kept sealed with the Registrar General
  of the High Court of Gujarat. The lacunae that the writ petitioner
  raised during the oral submissions do not find place in the
8 application that he filed before the Competent Authority. Under
  these circumstances and in view of the submissions made by
  Mr.Rohatgi, as noted herein earlier, the jurisdiction of this Court
  und~r Article 32 of the Constitution would come to an end as
  soon as a charge sheet is filed after conducting an investigation
C under the supervision and monitoring of this Court.

          65. In view of our discussions made herein earlier and the
    submissions of the learned senior counsel for the parties and
    the Amicus Curiae and keeping in mind the earlier various
    directions given by this Court to the Police Authorities of the
D   State of Gujarat and the materials on record, we are of the view
    that although the charge sheet was submitted but considering
    the nature of crime that has been allegedly committed not by
    any third party but by the police personnel of the State of Gujarat,
    the investigation concluded in the present case cannot be said
E   to be satisfactorily held. We have already discussed the
    decisions cited from the Bar on the question that after the
    charge sheet being filed whether the investigation could be
    handed over to the CBI Authorities or to any other independent
    agency from the State police authorities. We have already
F   distinguished the decisions cited by the State that they related
    to the power of the court to monitor the investigation after the
    charge sheet was filed. The scope of th.is order, however,
    cannot deal with the power of this Court to monitor the
    investigation, but on the other hand in order to make sure that
G   justice is not only done, but also is seen to be done and
    considering the involvement of the State police authorities and
    particularly the high officials of the State of Gujarat, we are
    compelled even at this stage to direct the CBI Authorities to
    investigate into the matter. Since the high police officials of the
H   State of Gujarat are involved and some of them had already
 RUBABBUDDIN SHEIKH v. STATE OF GUJARAT & 1025
        ORS. [TARUN CHATIERJEE, J.]
been in custody, we are also of the view that it would not be          A
sufficient to instill confidence in the minds of the victims as well
as of the public that still the State Police Authorities would be
allowed to continue with the investigation when allegations and
offences were mostly against them. In the present
circumstances and in view of the involvement of the police             B
officials of the State in this crime, we cannot shut our eyes and
direct the State Police authorities to continue with the
investigation and the charge sheet and for a proper and fair
investigation, we also feel that the CBI should be requested to
take up the investigation and submit a report in this Court within     c
six months from the date of handing over a copy of this
judgment and the records relating to this crime to them.
      66. Accordingly, in the facts and circumstances·even at this
stage the police authorities of the State are directed to hand
over the records of the present case to the CBI Authorities within     D
a fortnight from this date and thereafter the CBI Authorities shall
take up the investigation and complete the same within six
months from the date of taking over the investigation from the
State police authorities. The CBI Authorities shall investigate
all aspects of the case relating to the killing of Sohrabuddin and     E
his wife Kausarbi including the alleged possibility of a larger
conspiracy. The report of the CBI Authorities shall be filed in
this Court when this court will pass further necessary orders in
accordance with the said report, if necessary.
                                                                       F
    67. We expect that the police authorities of Gujarat, Andhra
Pradesh and Rajasthan shall co-operate with the CBI
authorities in conducting the investigation properly and in an
appropriate manner.
      68. The Registry shall send copies of this judgment              G
forthwith to the Director, CBI, the Secretary, Ministry of Home
Affairs, Government of India, and the Secretary, Home Ministry,
State of Gujarat.

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    1026    SUPREME COURT REPORTS                  [2010) 1 S.C.R.


A Writ Petition (Crl.) No.115 of 2007:-
        So far as W.P.(Crl.) No.115 of 2007 is concerned, let this
    matter be listed after eight weeks before an appropriate Bench.

  Contempt Petition (Crl.) No. 8 of 2007 in Writ Petition (Crl.)
B No.6/2007:-

         So far as contempt petition being Contempt Petition (Crl.)
    No.8 of 2007 is concerned, we are of the view that in view of
    our final order passed in the main writ petition being
c   W.P.(Crl.)No.6 of 2007, we do not find any reason to proceed
    with this contempt application any further. Accordingly, the
    contempt petition is disposed of. Notice, if there be any, stands
    discharged.

D K.K.T.             Writ Petition (Crl.) 6 of 2007, contempt petition
                     disposed of and writ Petition No. Crl. 115 of ·
                     2007 adjourned for hearing.