SHAMIMA KAUSERversusUNION OF INDIA AND ORS.

                      [2010] 5 S.C.R. 89


                     SHAMIMA KAUSER                                 A
                               v.
                UNION OF INDIA AND ORS.
             (Criminal Appeal No. 818 of 2010)
                       APRIL 19, 2010
                                                                    8
   [B. SUDERSHAN REDDY AND SURINDER SINGH
                  NIJJAR, JJ.]

      Constitution of India, 1950 - Art. 136 - Interference with
ad-interim order passed by High Court - Scope - Deaths in           C
alleged encounters staged by Gujarat police - Writ petition
seeking investigation by CBI - High Court passed order for
constituting an Investigation Team - Meanwhile, Metropolitan
Magistrate made inquiry u/s. 176 CrPC and submitted report
whereunder the alleged encounters were found to be fake -           D
Police officials indicted in the report - Application filed by
State Government in the writ petition, with prayer to set aside
the report of the Magistrate - Operation of the report stayed
by High Court, with further direction to the Registrar General
of the High Court to make detailed inquiry into the matter          E
which led to holding of inquiry by the Magistrate uls. 176,
CrPC - On appeal, held: Order passed by High Court was ad-
interim in its nature - Such ad-interim order not to be
interfered with under Art. 136 - Interest of justice would be met
if the main writ Petition itself is heard and disposed of by High   F
Court alongwith the application filed by State Government -
Meanwhile, Investigating Team already constituted by the
High Court not to deal with the report of Magistrate in any
manner whatsoever - Directions of High Court to Registrar
General (of the High Court) to make detailed inquiry into the       G
matter set aside - Code of Criminal Procedure, 1973 - s.176
- Interim order.

     Some persons died in alleged encounters by the

                               89                                   H
    90      SUPREME COURT REPORTS              [2010] 5 S.C.R.


A Gujarat police. Appellants, i.e. the parents of the
  deceased, filed writ petition seeking investigation into the
  deaths, by CBI. The High Court passed order for
  constituting an Investigation Team. Meanwhile, the
  Metropolitan Magistrate made inquiry u/s. 176 CrPC
B pursuant to orders of the Chief Metropolitan Magistrate
  and su Jmitted report whereunder the alleged encounters
  were found to be fake. Police officials were ir. cted in the
  said report.

C      The State Government filed application in the writ
  petition, with prayer to set aside the report of the
  Magistrate. The operation of the report was stayed by
  High Court, with further direction to the Registrar General
  of the High Court to make detailed inquiry into the matter
  which led to holding of inquiry by the M~gistrate under
D Section 176, CrPC. Hence the present appeals.

         Disposing of the appeals, the Court

       HELD: 1. The order passed by the High Court is ad-
E interim in its nature granting stay of the operation of the
  report (submitted by the Magistrate) as at present. The
  High Court had not yet finally disposed of the Criminal
  Miscellaneous Application filed by the State of Gujarat.
  The effect of the order passed by the High Court is that
  the operation of the. report is kept in abeyance and
F therefore no further action based on the said report could
  be initiated in whatsoever manner. In that view of the
  matter, such ad-interim order is not to be interfered with
  by this Court, in exercise of its jurisdiction under Article
  136 of the Constitution of India; [Para 1O] [95-A-D]
G
       2. Interest of justice would be met if the main Writ
  Petition (Special Criminal application) itself is heard and
  disposed of alongwith the Criminal Miscellaneous
  Application filed by the State of Gujarat. In the meanwhile,
H
 SHAMIMA KAUSER v. UNION OF INDIA AND ORS.               91


the Investigating Team already constituted by the High         A
Court shall not deal with the report of the Magistrate in
any manner whatsoever. The directions issued to the
Registrar General (of the High Court) to make a detailed
inquiry into the matter which led to holding of inquiry by
the Magistrate under Section 176, CrPC is also set aside.      B
[Para 1O] [95-D-G]

     3. The High Court is required to adjudicate the Writ
petition (Special Criminal Application) on its own merits
and shall consider the very maintainability of the Criminal    C
Miscellaneous Application filed by the State of Gujarat.
[Para 11] [96-B-C]

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 818 of 2010.
                                                               D
    From the Judgment & Order dated 9.9.2009 of the High
Court of Gujarat at Ahmedabad in 'Misc. Criminal Application
No. 10625 of 2009 in Special Criminal Application No. 822 of
2004.

                           WITH                                E

Crl. A. No. 819 of 2010.

    Kamini Jaiswal, Vrinda Grover, Shomona Khanna,
Rebecca M. John, Divyesh Pratap Singh, Huzefa Ahmadi,
                                                               F
Pradhuman Gohil, Vikash Singh, S. Hari Haran, Taruna Singh,
Charu Mathur for the Appellant.

    H.P. Rawal, ASG, Harish N. Salve, Tushar Mehta, AAG,
Hemantika Wahi, Pinky, Somanath Padhan, P.K. Dey, Rohit
Sharma, S.N. Terdol, Gopal Jain, Nitin Mishra for the          G
Respondents.

    The Judgment of the Court was delivered by

    B. SUDERSHAN REDDY, J. 1. Crl.M.P.No.19538/2009            H
    92      SUPREME COURT REPORTS                   [2010] 5 S.C.R.


A   for permission to file Special Leave Petition is allowed.

         2. Leave granted in both the appeals.

         3. These appeals are being disposed of by a common ·
    order since the same impugned order dated 09.09.2009 made
B   in MCRLA No. 10625/2009 in SCRLA No.822/2004 of the
    H.gh Court of Gujarat is under challenge in both the appeals.
    The High Court by the impugned order granted stay of the
    report submitted by the learned Metropolitan Magistrate dated
    07.09.2009 in Crime No.8/2004 registered with DCB Police
C   Station, Ahmedabad. The impugned order is challenged by the
    appellants on various grounds. In order to consider the same
    it may be just and necessary to notice few relevant facts:

          4.   The appellant in             Criminal Appeal         @
0   S.L.P.(Crl.)No.7305/2009 is the mother of the deceased lsrat
    Jehan who is alleged to have been killed by the Gujarat Police
    in an alleged encounter dated 15.06.2004. The appellant in
    Criminal Appeal @ Crl. M. P. No. 19538/2009 is the father of
    the deceas_ed Javed Gulam Mohammed Sheikh @ Pranesh
    Kumar Pillai who is also alleged to have been killed by the
E   Gujarat Police in a fake encounter. The appellants have been
    moving from pillar to post seeking justice and a proper inquiry
    into the matter. They have been consistently asserting before
    all the authorities that their children were the victims of a fake
    encounter staged in the year 2004 by the officers of the Gujarat
F   Police. The appellant Shamima Kauser filed a Writ Petition
    under Article 226 of the Constitution of India, being Special
    Criminal Application No.822/2004, before the High Court of
    Ahmedabad, seeking an investigation into the death of her
    daughter, by the Central Bureau of Investigation, for the reason
G   that she firmly believed that her daughter had been wrongfully
    done to death by the Gujarat Police in a fake encounter. The
    appellant in the other appeal filed Writ Petition in this court
    seeking appropriate directions to order investigation by the
    Central Bureau of Investigation into the "fake encounter killing"
H   of his son Javed Gulam Mohammed Sheikh @ Pranesh Kumar
 SHAMI MA KAUSER v. UNION OF INDIA AND ORS.                       93
          [B. SUDERSHAN REDDY, J.]
Pillai. The said Writ Petition was disposed of by this court            A
granting liberty to the petitioner to approach the High Court of
Gujarat seeking appropriate remedy since a Writ Petition
arising out of a similar incident was already pending before the
High Court.
                                                                        B
    5. On 07.08.2009 a leaned Single Judge of the High Court
passed an order adjourning the Special Criminal Application
No. 822/2004 filed by Shamima Kauser to explore the
possibility of handing over the investigation to higher officer/s
from the cadre of Additional Director General of Police. The            C
material portion of the order reads as under:

     "With a view to explore the possibility of handing over the
     investigation to higher officer/s. i.e. officer/s above the tank
     of Deputy Commissioner of Police, more particularly, from
     the cadre of Additional D.G., matter is adjourned to               D
     12.08.2009. To be taken up at 1630 hours."
     6. On 13.08.2009, the learned Single Judge having
considered the list of police officers produced by the State of
Gujarat passed a detailed order constituting a Team of                  E
Investigation "for the purpose of carrying out the investigation."
A team of three senior most officers was constituted for the
aforesaid purpose. The High Court also granted permission to
Shamima Kauser to make suggestions to the Investigating
Team with regard to areas of investigation and to inspect the
                                                                        F
record qua the FSL report and the ballistic report. The High
Court further c.rected the Investigating Team to consider all the
aspects frorc1 every angle relevant for the purpose of finding out
whether thE; incident was a genuine encounter or a fake one.
The report was directed to be placed before the court on the
next date of hear•rig The appellant promptly submitted an               G
application before e Investigating Team for inspection of
documents and a fun.~er application suggesting some areas
of investigation.

     7. On 07.09.2009, the Metropolitan Magistrate, Court               H
    94       SUPREME COURT REPORTS                     [2010] 5 S.C.R.


;:.;. No'.1', 'Ahtnedab~if;Bavlh g.:made·an inquiry·unaer· Seiction 1·76 ··
                               1


  of'the 'Criminal Procedu/e 'code pursuant'tci ~he\:>rCt~r~: dai~(id
  12.08.2009 of the Chief Metropolitan Magistrate submitte'ci an ·.
  Inquiry Report in respect .of death of (1) lsrat Jehan, (2) Jishan
  Johar, (3) Amjad Ali Akbar Ali Rana@ Salim @ Raj Kumar and
B (4) Javed Ghulam Sheikh. The learned Magistrate having made
  a detailed analysis of the material available on record found
  that. they were killed by "the         police officers and police
  personnel with their service revqlver and unlicenced and illegally '
  held AK-56 rifle and with other weapons fired bullets on body
c of deceased and thereby murdered - , - in a systemic manner,
  cold-bloodedly, mercilessly and cruelly/'

       8. On 09.09.2009, the State of Gujarat and as well as two
  police officers whose names were mentioned in the report filed
  Miscellaneous Applications in Special Criminal Application
D No.822/2004 with a prayer to set aside the report dated
  07.09.2009 of the learned Magistrate whereunder the alleged
  encounters were found to be fake. The matter was orally
  mentioned for listing and they were taken up on the same day
  at about 4.30 p.m. by the learned Single Judge and disposed
E of by the impugned order. Howeyer, the Criminal Miscellaneous
  Applications filed by the individual police officers were
  withdrawn and only Miscellaneous Criminal Application No.
  10625/2009 filed by the State of Gujarat was heard and
  disposed of.
F
       9. The learned counsel for the appellant - Ms. Kaimini
  Jaiswal, and Mr. Huzefa Ahmadi appearing on behalf of the
  appellant in the other appeal expressed their serious objection
  to the manner in which the learned Single Judge took up the
G application filed by the State of Gujarat and granted stay of the
  report with a further direction to the Registrar General to make
  a detailed inquiry into the matter which led to holding a parallel
  inquiry and filing of the report by the learned Magistrate. The
  learned Judge was of the opinion· that the inquiry made by the
  learned Magistrate was beyond "the provision of law." It was
H
 SHAMIMA KAUSER v. UNION OF INDIA AND ORS.                       95
         [B. SUDERSHAN REDDY, J.]
st~~nuo_us!~ q~~te~d~d ~he very .MJ.l?cellan~~us Application filed     A
by.th~: State.,of Gujarat in the Writ Petition filed by one of the
appellants herein was not maintainable.

     10. Notwithstanding various observations made by the
Learned Single Judge in the impugned order the fact remains
                                                                        8
the order passed by the learned Single Jude is ad-interim in
its nature granting stay of the operation of the report as at
present. The learned Single Judge not yet finally disposed of
the Criminal Miscellaneous Application filed by the State of
Gujarat. The effect of the order passed by the learned Single
Judge is that the operation of the report is kept in abeyance C
and therefore no further action based on the said report could
be initiated in whatsoever manner. In such view of the matter
we are not inclined to interfere with such ad-interim order in
exercise of our jurisdiction under Article 136 of the Constitution
 of India. Interest of justice would be met if the main Writ Petition --0
 itself is heard and disposed of alongwith the Criminal
 Miscellaneous Application filed by the State of Gujarat. In the
 meanwhile, the Investigating Team already constituted by the
 High Court shall not deal with ,the report of the learned
 Magistrate in any manner wh'i;1tsoever. However, the E
 observations made in the impugned order with regard to the
 report of the learned Magistrate are set aside which are totally
 unnecessary. The observations so made if allowed to remain
 may result in far reaching consequences. We fail to appreciate
 as to why and what made the learned Judge to make such F
 observations even while the very application filed by the State
 is kept pending for its adjudication. The directions issued to
 the Registrar General to make a detailed inquiry into the matter
_which led to holding of inquiry by the Magistrate under Section
 176 of the Code of Criminal Procedure is also set aside.               G

     11. We must express our reservations the manner in which
the proceedings went on before the High Court resulting in the
impugned order. In the circumstances we consider it
appropriate to request the learned Chief Justice of the High
                                                                       H
    96       SUPREME COURT REPORTS               [2010] 5 S.C.R.


A Cow t 1o place Special Miscellaneous Application No.822/2004
  along with'Criminal Miscellaneous Applications including
  Criminal Miscellaneous Application No. 10625/2009 filed by the
  State of Gujarat for their disposal in accordance with law as
  expeditiously as possible preferably within six months from
B today. It is needless to observe that the observations made in
  the impugned order shall have no bearing whatsoever upon the
  merits of the case. The Division Bench is required to adjudicate
  the Special Criminal Application on its own merits uninfluenced
  by the previous order passed by the learned Single Judge in
c the matter. It is also needless to observe that the Division
  Ber;ich shall consider the very maintainability of the Criminal
  Miscellaneous Application filed by the State of Gujarat.

         12. lmpleadment Application in Criminal Appeal @
    S.L.P.(Crl.)No.7305/2009 : In view of the final orders passed
· D in the Criminal Appeals no· further order is required to be.
    passed in this application. The application shall accordingly
    stand dismissed with liberty granted to the applicant to avail
    such remedies as may be available in law.

E        13. The appeals are accordingly disposed of.

    B.B.B.                                 Appeals disposed of.