HIMANSHU KUMAR AND OTHERS Versus STATE OF CHHATTISGARH AND OTHERS

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 103 OF 2009

HIMANSHU KUMAR AND OTHERS …Petitioner (s)

Versus

STATE OF CHHATTISGARH AND OTHERS …Respondent(s)

J U D G M E N T

J.B. PARDIWALA, J. :

1. This writ petition under Article 32 of the Constitution of

India relates to the alleged massacre that took place on 17th

September 2009 and 1st October 2009 respectively in the villages

of Gachhanpalli, Gompad and Belpocha respectively situated in

the district of Dantewada, State of Chhattisgarh.

2. It is the case of the writ petitioners that the Chhattisgarh

Police, Special Police Officers (SPOs), the activists of Salwa

Judum (group of vigilantes sponsored by the Chhattisgarh

Government) and the Paramilitary Forces consisting of the CRPF

and the CoBRA Battalions are responsible for the alleged brutal

massacre of the tribals in the respective villages referred to

above.

3. In the aforesaid context, the writ petitioners have prayed

for the following reliefs :

“(a) Issue a writ of mandamus or any other

appropriate writ, order or direction to the respondents

to have the CBI take over the investigation and

prosecution with respect to the complaints made by

the petitioners and others with respect to the

massacres that took place on 17.9.2009 and

1.10.2009 as set out in this petition;

(b) Pass an order directing the payment of

compensation to the victims and their families for the

extra judicial executions, for the looting of their

properties, for the burning of their houses and other

losses suffered by the victims on account of the

unlawful activities of the respondents and their

agents;

Hon’ble Court may deem fit and proper in the facts

and circumstances stated herein above.”

4. By way of the Criminal M.P. No. 3173 of 2010, further

reliefs have been prayed for as under :

“(a) Order directing the State of Chhattisgarh to

constitute and notify a Special Investigation Team

(SIT) headed by Shri Sankar Sen (IPS)

Dr.K.S.Subramanian, IPS and Mr.Rajneesh Rai, DIG

and such other officers as the SIT may deem

necessary with additional directions for the proper

functioning of the SIT as given by the Supreme Court

in the case of NHRC vs. State of Gujarat (2009) 6 SCC

342, 767).

(b) Order directing the State of Chhattisgarh to

produce Petitioners 2-12 at Delhi and hand them over

to Dr.Mohini Giri, Chairperson, Guild for Services,

‘Shubham’, C-25, Qutab Institutional Area, New Delhi;

advocates for the petitioner no.1 along with their

interpreters to meet the petitioners 2-12 at the Guild

for Services, New Delhi in the presence of Dr.Mohini

Giri;

(d) Order requesting Dr.Mohini Giri, Chairperson,

Guild for Services, New Delhi, to interview the

petitioners and make a report to this Court.”

5. The facts giving rise to the present writ petition may be

summarised as under :

6. The writ petitioner no.1, namely Himanshu Kumar, claims

himself to be running an NGO in the name of Vanvasi Chetna

Ashram, Kanwalnar – Dantewada Chhattisgarh. He claims to be

running an NGO for the welfare and development of the tribals

residing in the Bastar region. He also claims to be rendering help

to the other tribals of the Dantewada district of Chhattisgarh.

7. The writ petitioners nos. 2 to 13 respectively are the kith

and kin of the victims of the alleged massacre.

8. It is the case of the petitioner no.1 that after the two

horrifying incidents referred to above, the tribals are in a state of

shock. They constantly remain under the fear of being killed by

the Special Forces referred to above.

9. It is his case that with a view to help the tribals and seek

justice for them, he took up the cause and thought fit to prefer

the present writ petition seeking an investigation into the alleged

massacre through the Central Bureau of Investigation (CBI) and

an appropriate compensation to be paid to the victims and their

families.

10. It is the case of the petitioner no.1 that he helped the

tribals to lodge their respective complaints as regards the alleged

mass killings that took place on 17th September 2009 and 1st

October 2009 respectively.

11. According to the petitioner no.1, the tongue and other

parts of the body, such as, the upper limbs, lower limbs, etc. of

the family members of the petitioners nos.2 to 13 respectively

were chopped off by the security force. It is alleged that the

security forces did not spare even the infants. It is also alleged

that the breast of a 70-year-old tribal woman were chopped off

and was stabbed to death by the members of the police forces. It

is also alleged that a 2-year-old infant was brutally murdered.

The houses of the tribals were burnt. Money and properties were

looted.

12. It has been further pointed out that on 8th January

2009, 19 people were killed by the above referred forces at the

village Singaram, Tehsil Konta, District Dantewada.

13. On 18th March 2008, 3 tribals were killed at Matwada,

Salwa Judum Camp, District Bijapur, by the Chhattisgarh Police

and SPOs.

14. It has been pointed out that with respect to the aforesaid

two incidents, the matter was taken up by the National Human

Rights Commission.

15. It is the case of the petitioner no.1 that as the Special

Forces and the State of Chhattisgarh itself are involved in the

alleged brutal massacre of the tribals, the investigation of all the

complaints should be at the instance of none other than the CBI.

16. In the memorandum of the writ petition, the information as

regards the relationship between the petitioners nos.2 to 13

respectively and the deceased has been furnished as under :

Petitioner No. Relation with

the deceased

Village of the

deceased

Name of deceased Date of

Killings

Soyam Rama

Paternal Uncle

Paternal Aunt

Niece

Nephew

Gompad

Madvi Bajaar

Madvi Subi

Ku. Madvi Mutti

Smt Kartam Kunni

Madvi Enka

01.10.09

Shri Kunjam

Hidma

Son Belpocha Kunjam Hurra 01.10.09

Shri Madavi

Hidma

Brother Gachhanpalli Madvi Hadma 17.09.09

Shri Madavi

Sukda

Son Gachhanpalli Madvi Deva 17.09.09

Shri Madavi

Pojja

Aunt Gachhanpalli Dudhi Moye 17.09.09

Shri Soyam

Dulla

Son Gompad Soyam Subba 01.10.09

Smt. Muchaki

Sukdi

Husband Nulkatong Muchaki Mukka 01.10.09

Madavi Hurre

Sister Gachhanpalli Dudhi Moye 17.09.09

Shri Madavi

Raja

Father Gachhanpalli Madvi Dora 17.09.09

Smt.Madkam

Muke

Husband Gachhanpalli Madkam Chula 17.09.09

Shri Kowasi

Kosa

Father Gachhanpalli Kowasi Ganga 17.09.09

Sodhi Sambo

Himself Gompad Petitioner No.13

Himself (injured

for shooting)

01.10.09

17. The details of the alleged killings on different dates have

also been furnished in the memorandum of the writ petition.

However, we may not verbatim reproduce the same in our order.

18. The details on the First Information Reports are as under :

Sl.

No.

FIR No., Date,

PS, Sections

Complainant(s) Accused Gist of

allegations

Gist of Final

Report

Present

Status

1 2 3 4 5 6 7

01 PS-Bhejji

Dt. -

18.09.2009

Crime No.

04/2009

Sec.- 147,

148, 149, 307

IPC, 25, 27

Arms Act.

Shri Ravindra

Singh,

Assistant

Commndt. 201

Cobra Bn.

Unknown

Maoist Cadres

and Sangam

Members.

On information

about the

presence of

Naxal cadres, an

anti naxal

operation was

launched on

16.9.2009 from

PS Bhejji

towards

Gachchanpalli,

According to the

Investigating

Officer, even

after a long

search, no

accused were

found and on

no possibility of

finding the

accused in near

future, the

The closure

report was

accepted on

26.10.2010

by the

learned Chief

Judicial

Magistrate,

Dantewada.

Aitrajpad and

Entapad by the

Security forces.

The Maoists

made an attempt

to kill the Sfs by

Gun-fire, failing

so, ran away

burning their

hideouts.

closure report

was forwarded

on 20.10.2010

to the learned

CJM,

Dantewada

having

jurisdiction.

02 PS-Chintagufa

Dt. -

20.09.2009

Crime No.

10/2009

Sec.- 307,

395, 397,

147, 148,

149, 302 IPC,

25, 27 Arms

Act, 3, 4

Explosive

Subs. Act.

Shri

Premprakash

Awadhiya, Sub

Inspector

PS. - Sukma

Unknown

Uniformed

female and

male naxalites

about 200-

300 in

number.

On 16.09.2009,

the police party

left for

Singanmadgu for

Anti Naxal

operation from

police station

Chintagufa. On

the morning of

17.09.2009,

when the party

reached the

dense forests of

Singanmadgu,

the camp of

Naxalites was

seen from where

some weapons

and other items

were recovered.

Ahead of that,

further, there

was an EoF of

SFs with

Maoists, where a

dead body of a

Maoists was

recovered. There

after a while

200-300

unknown

Naxalites again

cordoned the

police party and

attacked the

Security forces,

in which

Assistant

Commandant

Shriram

Manoranjan,

Assistant

Commandant

Shri Rakesh

Kumar

Chaurasiya, Sub

Inspector Shri

Sushil Kumar

Varma, Head

Constable Lalit

Kumar,

Constable

Manoharlal

Chandra and

Constable Uday

Kumar Yadav of

CoBRA company

were martyred

and four others –

Constable

Satpal,

Constable Harish

Thakur,

According to the

Investigating

Officer, even

after a long

search, no

accused were

found and on

no possibility of

finding the

accused in near

future, the

closure report

was forwarded

on 20.10.2010

to the learned

CJM,

Dantewada

having

jurisdiction.

The closure

report was

accepted on

26.10.2010

by the

learned Chief

Judicial

Magistrate,

Dantewada.

Constable

Kamalvoshe and

Constable

Mohammad

Husain Quraishi

were of CoBRA

company also

injured.

03. PS-Bhejji

Dt. -

25.11.2009

Crime No.

05/2009

Sec.- 147,

148, 149, 307

IPC, 25, 27

Arms Act.

Shri Matram

Bariha, Head

Constable –

156 PS. - Bhejji

Unknown

Uniformed

Naxalites in

large

numbers.

On the

information of

increased Maoist

activities and

presence of

hideout camps of

armed Naxalites

in Gompad

village PS Bhejji,

three teams of

CoBRA 201 Bn.

Departed on an

anti Naxal

operation on

30.09.2009 from

injram. On

01.10.2009 this

combined party

was attacked in

form an ambush

by Naxalites in

Gompad with

objectives of

killing the SFs.

According to the

Investigating

Officer, even

after a long

search, no

accused were

found and on

no possibility of

finding the

accused in near

future, the

closure report

was forwarded

on 20.10.2010

to the learned

CJM,

Dantewada

having

jurisdiction.

The closure

report was

accepted on

26.10.2010

by the

learned Chief

Judicial

Magistrate,

Dantewada.

04. PS-Bhejji

Dt. -

08.01.2010

Crime No.

01/2010

Sec.- 396, 397

IPC, 25, 27

Arms Act.

Shri Soyam

Rama

Add. - Gompad

Unknown

Armed

Uniformed

persons 20-

25.

Absconding

accused -

1-Venktesh

s/o Unknown

2-Rajesh alias

Joga s/o

Unknown

3-Vijay alias

Ekanna

4-Savitri Bai

w/o Unknown

5-Manila w/o

Unknown

6-Bhima s/o

Unknown

7-Jayram s/o

Unknown

8-Samita w/o

Chandrana

9-Bhaskar

alias Rajesh

s/o

Venkteswerlu

10-Kavita d/o

Jayram

On 08.01.2010

on information of

applicant Soyam

Rama s/o Soyam

Kanna resident

Gompad village,

a FIR-01/2010

under sec.396,

397 IPC, 25, 27

Arms Act was

registered in PS

Bhejji and taken

into investigation

against unknown

Naxalites

causing murder

of 7 deceased

named – Madvi

Bazar, Madvi

Subbi, Madvi

Mutti, Kattam

Kanni, Madvi

Enka, Soyam

Subba and

Soyam Jogi.

Charge sheet

filed on

09.09.2010

against 10

named

absconding

accused u/sec.

396, 397 IPC,

25, 27 Arms

Act.

Permanent

Non-Bailable

Warrant has

been issued

against the

accused by

the Hon’ble

Judicial

Magistrate

First Class

(JMFC)

Konta.

05. PS-Bhejji

Dt. -

21.02.2010

Crime No.

06/2010

Sec.- 147,

148, 149, 302

IPC, 25, 27

Shri Maadvi

Hadma

Add.-

Gachchanpalli

village.

20-25

Unknown

Uniformed

person

carrying gun

and banda.

On 21.02.2010

on report of

applicant Madvi

Hadma resident

of Gachchanpalli

FIR No.-06/2010

under sections –

147, 148, 149,

Charge sheet

filed on

09.09.2010

against 10

named

absconding

accused u/sec.

147, 148, 149,

Permanent

Non-Bailable

Warrant has

been issued

against the

accused by

the Hon’ble

Judicial

Arms Act. 302 IPC & 25, 27

Arms Act was

registered at PSBhejji against

unknown

Naxalites for

murder of Madvi

Hidma, Madvi

Joga, Kawasi

Ganga, Madkami

Chula & Dudhi

Muye.

302 IPC, 25, 27

Arms Act.

Magistrate

First Class

(JMFC)

Konta.

06. PS-Bhejji

Dt. -

22.02.2010

Crime No.

07/2010

Sec.- 147,

148, 149, 302

IPC, 25, 27

Arms Act.

Shri Komram

Lachcha

Add.-

Chintagufa

Unknown

number of 20-

30 persons

holding gun in

uniform.

Absconding

accused -

1-Venktesh

s/o Unknown

2-Rajesh alias

Joga s/o

Unknown

3-Vijay alias

Ekanna

4-Savitri Bai

w/o Unknown

5-Manila w/o

Unknown

6-Bhima s/o

Unknown

7-Jayram s/o

Unknown

8-Samita w/o

Chandrana

9-Bhaskar

alias Rajesh

s/o

Venkteswerlu

10-Kavita d/o

Jayram

On 21.02.2010

on report of

applicant Madvi

Hadma resident

of Gachchanpalli

FIR No.-06/2010

under sections –

147, 148, 149,

302 IPC & 25, 27

Arms Act was

registered at PSBhejji against

unknown

Naxalites for

murder of Madvi

Hidma, Madvi

Joga, Kawasi

Ganga, Madkami

Chula & Dudhi

Muye.

Charge sheet

filed on

09.09.2010

against 10

named

absconding

accused u/sec.

147, 148, 149,

302 IPC, 25, 27

Arms Act.

Permanent

Non-Bailable

Warrant has

been issued

against the

accused by

the Hon’ble

Judicial

Magistrate

First Class

(JMFC)

Konta.

19. It is the case of the petitioners that after the registration of

the FIRs referred to above, no action has been taken by the

police. No one came to be arrested. No proper investigation has

been undertaken. Not a single statement of any of the eyewitnesses has been recorded. In such circumstances referred to

above, the writ petitioners are here before this Court with the

present writ petition seeking relief of investigation of all the FIRs

through the CBI. The petitioners also seek compensation from

the Government for the alleged atrocities and massacre.

STANCE OF THE STATE OF CHHATTISGARH :

20. The State of Chhattisgarh has refuted all the allegations

levelled in the memorandum of the writ petition by filing

counter-affidavit duly affirmed through one Shri Vimal Kumar

Bais, Deputy Superintendent of Police, Headquarter –

Dantewada, Chhattisgarh, dated 4th February 2010. The affidavit

minutely deals with all the incidents referred to by the

petitioners in the memorandum of the writ petition. We quote the

same as under :

“5. That the State of Chhattisgarh is facing menace

of Naxalism which has been termed as a number one

security threat to nation’s integrity and sovereignty by

the Hon’ble Prime Minister of India. The State Police

with help of paramilitary forces have to tackle the

Naxalism and most of the organizations concerning

Naxalite movements have also been banned. The

State of Chhattisgarh has lost precious life of its

personnel while defending the State. In last two

years, the security personnel who are killed by

Naxalite in the State of Chhattisgarh would be in the

range of 300. In the District of Dantewada alone,

sixty-five police personnel have died. The State of

Chhattisgarh has also stated in its earlier affidavit

that these writ petitions are filed by Naxal

sympathizers. In fact, the State of Chhattisgarh verily

believes that mountains of complaints are filed so as

to detract the police personnel from tackling the

menace of Naxalism. The police personnel have lost

their lives while combating the menace of Naxalite

activities. A cavalcade of entire police personnel was

ambushed in which even one S.P. died.

PARAWISE REPLY :

1. The contents of paragraph No.1 of the writ

petition are denied and the attack on the police party

by the Naxalites have been sought to be given the

connotation of ‘massacre’. The State of Chhattisgarh

have explained the three incidents of 17.09.09 and

01.10.09 with Naxalites in detail in the subsequent

paragraphs. The word ‘massacre’ is being used in a

cursory manner without revealing the true nature of

the incidents on 17.09.2009 and 01.10.2009.

RE : INCIDENT OF 17.09.09 [GACHANPALLI] :

A team of CoBRA Battalion along with other police

officials started off for village Gachanpalli at around

07:45 PM on 16.09.2009, when the police party

reached village Gachanpalli and cordoned off the

Naxal camp and at around 5.30 AM, the Naxalite

opened fire indiscriminately. The police had no option

but to retaliate in self defence. However even after

ceasefire, 150-200 Naxalites were able to retreat into

dense forest. Several arms and ammunitions were

recovered from Naxals including Naxal uniforms. At

present, it is registered as Crime No.4/09 under Sec.

147, 148, 149, 307, I.P.C. and 25/27 Arms Act at P.S.

Bhejji of Gachanpalli and the investigation is carried

on by the CID.

RE : INCIDENT OF 17.09.09 VILLAGE - SINGANPALLI :

The Police Force headed by Devnath Sonkunwar

started off for Singanmadgu and while patrolling on

16.09.2009, they found a Naxal Camp in the jungle of

Singanmadgu in the early hours of morning. There

was incessant firing from 200-300 uniformed

Naxalites. The police had to opened fire in his self

defence. It would be relevant to mention that many

police personnel including Kobra AC Manoranjan

Singh, AC Shri Rakesh Chaurasiya, Shri Uday Kumar

Yadav were shot dead. Thus precious lives of police

personnel were lost in the cross-fire and the firing

continued till 08:00 PM on 18.09.2009. Further

enforcement of police personnel were also sought. An

FIR No.10/2009 was also registered by P.S.

Chintagupha on 20.09.2009. The case was later on

shifted to C.I.D. for further investigation in accordance

with the recommendations of the NHRC in Nandini

Sunder’s case. One dead body of Madavi Deva was

identified who died during the cross fire between the

Naxalites and the Police.

It would be relevant to mention that S.P. Office have

received complaints of Madavi Hidma S/o Madavi

Kosa, Kawasi Kosa son of late Kawasi Ganga,

Madkam Muke wife of Markam Chula, Madavi Raza

son of Madavi Joga, all belonging to Gachanpalli. The

nature of complaints is full of suspicion because all

the complaints are in same format and typed in same

manner, giving arise to suspicion that certain

organizations sympathetic to Naxalites or Naxaliteoriented organizations are behind the lodging of such

complaints. These complaints are being investigated

and veracity of those complaints are doubtful as they

are in fixed format and typed in same manner. In any

way, on 10.12.2009 even a visit was made to

Gachanpalli to record the statements of Complainants.

However no Complainants were found on 10.12.2009

as the Naxalites persuaded the Complainants to not to

cooperate with the police. Now the Additional S.P.

Dantewada has been entrusted with the job of

completing the Investigation in a speedy manner.

RE: INCIDENT OF 01.10.2009 [GOMPAD INCIDENT] :

A team of security forces consisting of COBRA, local

police and SPOs had started off on 30.09.2009 for

Gompad village on the information of a naxal camp

being run near village. When police party was about

to reach the village at 06:30 AM on 01.10.2009, it

came under heavy fire by Naxalites. The attack was

repulsed and place was searched. Police did not find

anybody. Afterwards the village was also searched

but everyone fled away. The above incident is being

investigated by Bhejji PS after registration of FIR

No.05/09 under Sec.147, 148, 149, 307 IPC and 25,

27 Arms Act. The case has been transferred to CID for

investigation.

The SP office received complaints of Soyam Dula son

of late Soyam Dula, Soyam Rama son of late Soyam

Kanna, Mrs. Sodi Sambo wife of Sodi Badra, all

belonging to Gompad village, all of them desirous of

registration of crime against security forces for alleged

killing of their relatives. The reason for holding further

investigation in the manner is because the complaints

are filed after much delay of the alleged crime and

secondly, all the complaints are in a fixed format and

typed in same manner giving rise to suspicion that

those complaints have been engineered by Naxals

frontal organizations to derail the investigation.

It is also a moot point to note that during the course of

investigation, S.D.O.P. Konta and his team had visited

the alleged Complainants but those Complainants

were untraceable. The State of Chhattisgarh is of the

firm belief that those Complainants are only working

at the behest of Naxalites and are even under threat

of Naxalites. The State of Chhattisgarh thought that

since petitioner No. 1 is in active contact with

complainants and has even chosen to file writ petition

before this Hon’ble Court, it would be advisable that

petitioner No. 1 himself comes forth with all the

complainants to expedite the investigations. However

this request of police, to cooperate in the investigation,

is being adversely commented upon by the petitioner

No. 1 before this Hon’ble Court.

Crime No. 05/2009 under Sec. 147, 148, 149,

307 IPC and Sec.27/27 of Arms Act has been

registered on the report of Security Forces whereas

Crime No. 01/2010 under Sec. 396, 397 IPC has been

registered in this regard as per the enquiry based on

application made by Soyam Rama. The case is now

investigated by C.I.D. in accordance with the

recommendation of NHRC in Nandini Sunder’s case.

2. The contents of paragraph No.2 of the writ

petition are vehemently denied. It would be evident

that the aforesaid two incidents of 17.09.2009 and

one incident of 01.10.2009 have also brought untold

misery and deprivation of police personnel and

several police personnel have lost their lives. The

contents of paragraph No.2 about alleged massacre is

completely misleading and truth of the matter is mat

petitioner No.1 after the Naxalite incident has

instigated villagers to lodge complaints. It is denied

that a woman had her breast cut-off and two year old

infant was brutally murdered. Similarly it is also

denied that blind man of 70 years old was executed.

3. & 4. The contents of paragraphs No.3 & 4 of the

writ petition are denied as long as they pertain to the

incidents of 17.09.2009 and 01.10.2009. The FIR

relating to the incidents of 17.09.2009 and that of

01.10.2009 have already been transferred to C.I.D. in

accordance with the NHRC recommendations in

Nandini Sunder’s Case. The State of Chhattisgarh

would follow the NHRC recommendation regarding the

incidents of 17.09.2009 and 01.10.2009 and transfer

of case to the CBI is completely unwarranted. In any

case, whether a matter could be transferred to CBI or

not is pending before the Constitution Bench of this

Hon’ble Court and the judgement is still awaited.

5. In response to the contents of paragraph No.5 of

the writ petition, it is stated that writ petitions

concerning incidents dated 18.03.2008 at District

Bijapur and 08.01.2009 at District Dantewada are

already pending before the Hon’ble High Court as Writ

Petition Nos.211/2008 & 363/2009 respectively. The

Hon’ble High Court of Chhattisgarh is in seisen of the

matter and the deponent has already traversed the

pleadings before the Chhattisgarh High Court.

6. The contents of paragraph No.6 of the writ

petition are denied for want of knowledge.

7. In response to the contents of paragraph No.7 of

the writ petition, it is submitted that incident of

17.01.2009 is already explained in the preceding

paragraphs and therefore it requires no further reply.

The facts have been completely distorted and are

stated in false manner. It has already been stated

that Madavi Deva was the uniformed Naxalite whose

body found from the site while the incident on

17.09.09 at Singampali. As regards case of burning in

hot oil of Muchaki Deva, though no complaint has

been made to police. It is only found in a press release

dated 30.10.2009 of the fact finding team of PUCL

(Chhattisgarh), PUDR (Delhi, Vanvasi Chetna Ashram

(Dantewada), Human Rights Law Network

(Chhatisgarh), Action Aid (Orissa), Manna Adhikar

(Malkangiri) and Zilla Adhivasi Ekta Sangh

(Malkangiri), that Muchaki Deva has been taken to

Bhadrachalam by members of the fact finding team.

However this entire allegation of burning in hot oil is

turned out to be a totally concocted story as evident

from the article published in Hindustan Times in

which doctors of Bhadrachalam have denied to have

seen such a burn case at all. As far as the allegation

of certain persons being ‘tied’ and paraded Is

concerned, it is maintained that when security forces

reached to the village Gachanpalli, after repulsing the

attack, no one was found and everybody had fled to

the jungle. It is the Naxalites who are unleashing

terror and the blame is put on the State. It is reiterated

that the entire efforts seems to eulogize the Naxalite

movement and to bring every effort to curtail Naxalism

in poor light.

The incident of 01.10.2009 has been explained in

detail in the preceding paragraphs and the facts

stated in the paragraph under Reply are totally

distorted and far from truth.

As regards allegation of 8 arrested and two missing, it

could be said that an FIR No.27/2009 dated

02.10.2009, P.S. Konta, has been registered which is

relatable to attack by Naxalites on security forces in

the jungle of Nulkatong on 01.10.2009. In above

incident, two dead bodies were recovered and eight

people had been arrested. The two dead bodies were

brought to P.S. Konta and inquest by Executive

Magistrate and post-mortem report was made as per

provisions of law.

The alleged killings at Chintagufa (the other one than

that of Siganpalli) came to the knowledge to the State

of Chhattisgarh only after the receipt of this writ

petition and same is being investigated upon.

The recognition of Panda Soma and Ganga of

Asarguda village are completely misplaced. It is

reiterated that no person by the name of Ganga of

Asarguda village have been SPO in police record of

Dantewada. Panda Soma was killed in blast by

Naxalites on 06.05.2009 and there is also a death

certificate to that effect. Thus the presence of Panda

Soma on 01.10.2009 is completely falsified. The

allegations of looting, burning of houses, harassment

& torture by the security forces are also denied

vehemently.

8. The contents of paragraph No.8 of the writ

petition are denied. There have been no extra judicial

killings and in fact several police personnel have also

lost their lives. The Petitioners No.2 to 13 may not like

go to the police station but they can certainly go to

Magistrate for registration of FIR under Section 156(3)

of the Code of Criminal Procedure. The judicial system

even at the grass-root level is independent and would

be in position to monitor the investigation in an

effective manner.

9. & Ors. In response to the contents of paragraphs

No.9, 11, 12, 13, 14, 15, 17, 18, 19, 20 and 21 of the

writ petition, it is submitted that the complaint are

under investigation and the stories are more in the

nature of ‘make-believe’. The true incident has

already been narrated in the preceding paragraph.

The Complainants have not been found whenever the

places of their residence is visited by the investigating

authorities. The S.P., Dantewada, made a request to

the petitioner No.1 to furnish the details of

Complainants or produce the Complainants

themselves so that further investigation could take

place. However petitioner No.1 has taken umbrage,

which would be evident from the pleadings before this

Hon’ble Court. In fact, the police is not getting any

assistance from the petitioner No.1 who claims to be

representatives of petitioners No.2 to 13.

10. In response to the complaint filed by Kunjan

Hidma as mentioned in the contents of paragraph

No.10 of the writ petition, an enquiry was instituted

and enquiry report has been submitted by S.D.O.P.

Konta. It has been stated that nobody was found by

the police personnel when they visited village

Belpocha on 07.12.2009. It is relevant to mention that

village Belpocha is situated only 14 kms from P.S.

Konta but the Complainant did not report the matter

at P.S. Konta.

It is strange that killing of his son Kunjam Hurra was

not reported to the police, even though the village

Dhondhara is situated nearby. The village men of

Dhondhara Sarpanch Markam Krishana, former

Sarpanch Markam Sitaram, Punam Naraiya were

interrogated about the alleged incident. They refused

to have any knowledge about the incident. Thus no

evidence was found and the complaint was found to

be false after discreet enquiry.

16. In response to the contents of paragraph No.16 of

the writ petition, it is submitted that an enquiry report

was submitted by S.D.O.P., Konta in which it is stated

that S.D.O.P. Konta tried to contact the Complainant

at village Nulkatong on 09.11.2009 but no one was

found in the village. It is relevant to mention that the

two dead bodies of unknown naxals were brought to

P.S. Konta and an inquest was also prepared by the

Executive Magistrate. Nobody had turned up for

identification of dead bodies for almost three days. An

FIR No.27/2009 under Sec.147, 148, 149, 307 IPC

read with Sec.25 & 27 of Arms Act have been

registered at P.S. Konta. Now the Addl. S.P.

Dantewada has been given charge to hold the enquiry

in speedy manner.

22. The contents of paragraph No.22 of the writ

petition are denied. It is respectfully submitted that

the villagers are living in state of fear from Naxalites

and not from the State.

23. The contents of paragraph No.23 of the writ

petition are vehementiy denied. The State of

Chhattisgarh believes that story of hot boil is not

seriously believed even by the petitioner No.1 and is a

fiction.

24. The contents of paragraph No.24 of the writ

petition are denied. Certain matters are subjudice

before Hon’ble High Court of Chhattisgarh at Bilaspur

while in others the Complainants have not come

forward and did not cooperate in the investigation.

The State of Chhattisgarh is committed to register an

FIR and even hold investigation provided the

Complainants cooperate in the investigation process.

In any case at the F.I.R.s concerning incidents of

17.09.09 and 01.10.09 have been duly registered and

investigations are going on.

25. to 27. The contents of paragraphs No.25 & 26 of

the writ petition are denied and this subject matter is

already part of the writ petition filed before Hon'ble

High Court of Chhattisgarh.

28.1 The contents of paragraph No.28.1 of the writ

petition are denied and incidents of 17.01.2009 and

01.10.2009 have already been dealt with in the

preceding paragraphs.

28.2 & 28.3 The contents of paragraph No.28.2 of the

writ petition are vehemently denied. The FIRs have

been registered and an investigation has been

transferred to the C.I.D. in accordance with the

recommendations of the NHRC in Nandani Sunder’s

case. It is also settled proposition of law that there

may not be more than one FIR regarding the same

incident and once an FIR is registered, then the

subsequent complaints about the same incident would

be termed as statements under Sec.161 of the Code of

Criminal Procedure. Even if the second FIR is

registered about the same incident, it would have little

effect on the overall investigation of the case. The

State of Chhattisgarh is cognizant of the complaints

and has even stated to the petitioner No.1 herein to

come forward with the Complainants so that there

statements could be recorded and investigation is

duly completed. The State of Chhattisgarh reiterates

that if the Complainants or the Petitioners come

forward then the State would readily record their

statements and even register separate FIRs apart

from the FIRs registered by the Police so far.

28.4 The contents of paragraph No.28.4 of the writ

petition are denied because the investigation is done

in the proper manner and there is no apparent

irregularity or omission in the investigation which

would warrant investigation by the CBI. In any case,

whether an investigation could be made by CBI at the

direction of the Hon’ble Court is pending consideration

before the Constitution Bench.

28.5 The contents of paragraph No.28.5 of the writ

petition are vehemently denied. The police has duly

registered the FIRs and investigation is conducted in

accordance with the NHRC recommendations in

Nandini Sunder’s case. It is the Naxals who have

attacked the posse of policemen and this allegation of

‘massacre’ is invoked for misleading this Hon’ble

Court.

28.6 The contents of paragraph No.28.6 of the writ

petition are denied. The Complainants are in touch

with the petitioner No.1 and the State of Chhattisgarh

reiterates that if the Complainants come forward then

their statements shall be recorded and investigation

shall be done accordingly. However the Complainants

have played truant. Normally one FIR is registered for

one incident and subsequent complaints are recorded

as statements under Sec.161 of the Code of Criminal

Procedure and investigation takes place accordingly.

Even if a formal separate FIR is registered, the

Complainants and some of the Petitioners shall have

to come forward to cooperate with the investigation.

28.7 The contents of paragraph No.28.7 of the writ

petition are vague and hence denied.

28.8 The contents of paragraph No.28.8 of the writ

petition are denied. It is respectfully submitted that

word ‘massacre’ is misnomer. The State has not

violated Articles 14, 19 and 21 of the Constitution of

India.”

21. We take notice of the fact that an affidavit-in-rejoinder has

been filed, duly affirmed by the petitioner no.1, to the aforesaid

reply filed by the State of Chhattisgarh. In the rejoinder, the

petitioner no.1 has once again reiterated what has been stated in

the writ petition.

CoBRA 201 BATTALION :

22. An affidavit-in-reply has also been filed on behalf of the

respondent no. 3, duly affirmed by one Shri Dilip Kumar Kotia

(201 CoBRA Bn. - SAF). Few relevant averments made in the

reply are as under :

“7(1)Regarding Gachanpalli murders: No civilian was

killed or injured by the CoBRA/SAF troops. The killing

of 02 years old child and 01 blind man of 70 years

are denied. However, it is the known fact that

naxalites often use civilians as human shield. It is

further submitted that the CoBRA troops fired on

provocation of naxalites in self defence and to defend

themselves at Gachanpalli on 17/09/09 when they

were ambushed by the naxalites. Hence, the

probability of naxalities themselves indulging in these

acts of terrorizing the locals to coerce them to join their

naxal movement can not be ruled out.

(2) Regarding the case of Madvi Deva: The troops of

CoBRA 201 Bn did not carry out operation in village

Singhanaplli on 17/09/09. It is submitted that one of

the naxalites who was wearing a black naxal uniform

and carrying a muzzle loaded gun was killed in an

encounter with the CoBRA/SAF Bn at the time of

unearthing of naxalite gun factory at Singhanmadugu.

His dead body was later on brought to PS Chintagufa

Distt. Dantewada for post mortem and further legal

action. FIR No. 10/2009 dated 20/9/2009 u/s 307,

395, 397 of IPC, Sections 25/27 Arms Act and

Sections 3,4 of Explosives Act was also lodged with

PS Chintagufa (Dantewada) about the incident. It is to

mention here that if the said person was Madavi Deva

of Singhanpalli village then he was definitely a

naxalite and not an innocent civilian. It is further

mentioned here that during the course of unearthing

the Arms factory of naxalites and returning back our

troops were ambushed by the naxalites near village

Singhanmadugu where 06 brave commandos of

CoBRA/SAF have lost their precious lives and body of

those martyrs recovered only on 19/09/09 morning.

The troops of CoBRA/SAF had no option except to

retaliate which lasted for about one and a half hour.

(3) Regarding Burnt in hot oil: The troops of CoBRA

Bn./CRPF had neither conducted any operation at

village Ondherpara nor committed any act as alleged.

Hence, the allegation against this Force is totally false

and frivolous.

(4) Regarding Tying and parading: The allegation

against the Force personnel is totally false as no

person was apprehended or arrested during the

operation.

(5) Regarding Force displacement and terror: There

are frequent reports of murder and torture of innocent

people by naxalite cadres to terrorize the masses in

the name Maoist ideology and it has also been

informed by intelligence sources that naxalites are

seen in security force uniforms in this region. Hence,

the probability of naxalites themselves having

indulged in these acts of terrorizing the tribals to

coerce to support and join their naxal movement

cannot be ruled out. It seems to be parts of naxals

psychological war fare against the security forces with

intention to stall and jeopardize the ongoing

operations against them in their strong hold areas.

(6) Regarding Gompada ‘encounter’ dated 1/10/09:

On the basis of intelligence received from sources

regarding presence of naxalites in the village of

Gompad under the jurisdiction of PS Bheji on dated

30/09/09 special joint operation was planned

involving party of SAF 201 Bn., Civil Police and SPOs.

The party was given task to carry out cordon and

search at Gompad Village. The troops were carrying

man pack (bag containing various items of troops) and

all the other logistic and administrative support items

sufficient for 03 days duration. Accordingly,

CoBRA/SAF troops comprising AC-02, SOs-04, Other

Ranks-66, HC/RO-02 under the command of Shri

Ravindra Singh Shekhawat, Asstt. Comdt. alongwith

one ASI of civil police, 08 constable of civil police and

21 SPOs left from the base camp of PS Bheji on

30/09/09. When CoBRA/SAF troops were about 01

Km short of village Gompad at about 0630 hrs on

01/10/09 naxalites ambushed the troops and opened

heavy fire. CoBRA/SAF troops had no other option

and were forced to retaliate the fire which lasted for

about 20 minutes and naxalites fled away from the

ambush site. When the naxalites were fleeing they

were seen carrying their injured colleagues. After the

naxalites fled away, the area was thoroughly

searched by our troops and Hand grenade-02, Tiffin

bomb-01, Solar panel-01, fired case of 7.62 x 51 mm

carts-03, Detonator-02, Cap-01 were recovered from

the ambush site which were left by naxalites in hurry

while fleeing the site. Troops moved further and

searched village Gompad where no villager was

found. Then our troops returned back. However it is

submitted that due to strong action against the

naxalites by the CoBRA/SAF Bn in the joint operation

since 16/09/09 onward in the interior naxal affected

and dominant villages destroying and unearthing the

Arms factory of the naxalites, the naxalites have lost

the ground and baffled. And this strong action of the

CoBRA/SAF Bn was highly appreciated and

published in the local newspapers. Hence, the

petitioners in connivance with the naxalites have

falsely alleged against the local police and SAF 201 to

stall the operations against naxalities with well

thought out nefarious designs.

(7) Regarding more killings: Neither our Force carried

out any operations at Chintagufa on 01/10/2009 nor

killed or injured any innocent civilians. The allegation

is false. Hence, allegation is vehemently denied.

(8) Regarding travails of a 2 years old: No civilian or

child was bodily harmed/tortured by Force personnel

during the operations. The allegation against

CoBRA/SAF Force is totally false and fabricated.

Hence, vehemently denied.

(9) Regarding 8 arrested and 2 missing: Force of this

201 CoBRA/SAF Unit was neither deployed for

operational duty in Mukundtong and Junitong villages

nor they have committed any such act mentioned in

allegation. Hence, vehemently denied.

(10) Regarding looting and burning of property and

houses: Force personnel of 201 CoBRA(SAF) Bn.

neither looted nor stolen any property/money from

any of the houses during operation. Rather the

naxalites burnt down their own training infrastructure

and hide outs when Force personnel carried out

operations at their location. The allegations against

Force personnel are fabricated and totally false as

they were carrying sufficient ration and other items

required for their personal use during the operations.

(11) Regarding harassment and torture: No civilian

was either harassed or tortured during the operation

by 201 CoBRA(SAF) Bn. as alleged. Hence, this

allegation against the Force personnel is false and

denied.

(12) Regarding presence of SPOs and Salwa Judum

leader with security forces: Personnel of 201 CoBRA

(SAF) did not conduct operation in Mukudtong village

and hence no question of Salwa Judum leader

accompanying them. However, CoBRA personnel

carried out operation in Gomapada village on

1/10/09 alongwith civil police and SPOs.

(13) Regarding forced displacement and terror: No

houses were damaged/ burnt by the Force personnel

and no forcible displacement of villagers carried out.

Hence, this allegation against Force personnel is

totally false and denied.

8. In reply to para-8, it is submitted that no civilian

was killed or tortured by the SAF 201 personnel and

all the allegations against this Force are false and

fabricated. It is the duty of the Paramilitary Force to

step in aid of the people and not to harass them or to

commit any activity derogatory to the human rights. In

fact, the Force is operating at the risk of life of their

personnel engaged in protecting life and property of

the citizens.

9. In reply to para 9, it is submitted that the

allegation is false, hence denied. In fact the troops

were ambushed near this village Gompad and after

an exchange of fire the troops seized Hand Grenade02 Nos, Tiffin Bomb-01,Booby trap-1 Solar Panel-01,

fired cases of 7.62x51 mm cart-03, detonator-02, Cap01.

10. In reply to para 10, it is submitted that the troops

of 201 CoBRA (SAF) Bn. did not carry out any

operation at Dhodhra. The allegations are totally

false, baseless, hence denied.

11. In reply to para 11, it is submitted that no civilian

was either caught or killed by this Unit personnel

neither any money was ever looted. However, on

17/09/2009 our troops were ambushed by the

naxalites in Gachanpalli and the troops retaliated in

self defence. This allegation against 201 CoBRA (SAF)

Bn. is false and baseless and hence denied.

12. In reply to para 12, it is submitted that the

allegation is false as no such act was committed by

201 CoBRA (SAF) Bn. and hence denied.

13. In reply to para 13, it is submitted that the

allegations are totally false as no such act was

committed by 201 CoBRA (SAF) Bn. and hence denied.

14. In reply to para 14, it is submitted that the

allegation is totally false as no such acts were

committed by 201 CoBRA (SAF) Bn. No person was

beaten, stabbed or killed by the Force personnel. No

property was looted or burnt. However, the vagueness

or truthfulness of the allegations leveled in the petition

is borne out by the fact that the name and number of

the petitioner given in the para does not tally with the

list of petitioners in the cause title of the Writ Petition.

15. In reply to para 15, it is submitted that the

allegation is totally false as no such act was

committed by 201 CoBRA (SAF) Bn. However, the

name and number of the petitioner given in the para

does not tally with the list of petitioners in the writ

petition.

16. In reply to para 16, it is submitted that the Force

of 201 CoBRA (SAF) Bn. did not carry out any

operation in village Nulkatong on 1/10/09. Hence, the

allegation against this Unit is totally incorrect and

baseless. However, the name and number of the

petitioner given in the para does not tally with the list

of petitioners in the writ petition.

17. In reply to para 17, it is submitted that 201

CoBRA (SAF) Bn. personnel did not kill villagers or

burnt their houses. However, on 17/9/09 201 CoBRA

(SAF) Bn. personnel carried out operation in village

Gachanpalli during which our personnel were

ambushed by heavily armed naxalites and the

personnel retaliated back in self defence.

18. In reply to para 18, it is submitted that 201

CoBRA (SAF) Bn. personnel did not kill villagers nor

burnt their houses. However, on 17/9/09 201 CoBRA

(SAF) Bn. personnel carried out operation in village

Gachanpalli during which our personnel were

ambushed by heavily armed naxalites and the

personnel retaliated back in self defence.

19. In reply to para 19, it is submitted that 201

CoBRA (SAF) Bn. personnel did not kill villagers or

burnt their houses. However, on 17/9/09 201 CoBRA

(SAF) Bn. personnel carried out operation in village

Gachanpalli during which our personnel were

ambushed by heavily armed naxalites and the

personnel retaliated back in self defence.

20. In reply to para 20, it is submitted that the

allegation is false and denied. Although 201 CoBRA

(SAF) had carried out operation in village Gompada on

1/10/09 but no such act was committed by SAF

personnel.

21. In reply to para 21, it is submitted that one of the

naxalites who was wearing a black naxal uniform

and carrying a muzzle loading gun was killed in

encounter with this Unit personnel at the time of

unearthing of naxalites gun factory at

Singhanmadugu on 17/09/09. His dead body was

later on brought to PS Chintagufa and handed over to

Police Station for post mortem and further action. A

Copy of the photograph of the said militant is placed

at Annexure R 12. In this connection FIR No.10/2009

dated 20/9/2009 was also lodged with PS

Chintagufa (Dantewada). It is also mentioned here

that while returning back after unearthing the arms

factory of naxalities, our troops were ambushed by

naxalites in which six commandos of this unit lost

their precious lives.

22. In reply to para 22, it is submitted that naxalite

cadres have been often wearing security force uniform

to terrorize the masses to defame the security forces

and demoralize them and as such the allegation is

false and denied.

23. In reply to para 23, it is submitted that 201

CoBRA (SAF) troops did not carry out any operation in

village Onderpara. Hence, the allegation is denied.

24. No comments are offered in reply to para 24.

25. In reply to para 25, it is submitted that CRPF is

not involved in any incident as alleged and hence

denied.

26. In reply to para 26, it is submitted that this point

does not pertain to CRPF/ SAF Unit. Hence, the

allegation is denied.

27. In reply to para 27, it is submitted that this point

does not pertain to this CRPF/ SAF Unit. Hence, the

allegation is denied.

REPLY ON GROUNDS :

28. 28.1: In reply to para 28.1, it is submitted that

the grounds made by the petitioners are false and

fabricated because none of the act mentioned in the

Writ Petition have been committed by the troops of this

SAF/CRPF unit. However, being a specialized armed

force of the union, the troops are deployed to enforce

the law of the land and to protect the life and property

to common people. There are frequent reports of

civilian killings and torture of innocent by naxalite

cadres wearing security forces’ uniforms to terrorize

the masses in the name of maoist ideology and they

might have indulged in such acts to defame the

security forces and demoralize them with the intention

to stall and derail operations in their strong hold

areas.

28.2: No comments are offered in reply to para 28.2.

28.3 to 28.9: No comments are offered in reply to para

28.3 to 28.9

PRAYER :

a) That the petitioner’s request for CBI enquiry

appears to be intended to delay the criminal

investigation already being conducted by the State

police against the naxalites. Hence, the prayer

deserves not to be entertained.

b) It is most respectfully and humbly submitted that

the consideration and/or granting the petitioners’

prayer for award of compensation to such naxalite

who was in naxalite uniform as well as having muzzle

loaded gun as killed by the 201 CoBRA/SAF Bn in

village Singhanmadugu is totally misplaced and it is

bonafide believed that Govt. funds i.e. the tax payers’

hard earned money does not deserve to be spent for

awarding compensation to those who have lost lives

while being part of insurgent naxal acts which will in

turn demoralize the Forces fighting naxalites whose

duty is to protect the life and property of the people

and to safeguard integrity and security of the country.

Hence, this prayer of the petitioners also deserves to

be rejected. Hence, Writ Petition deserves to be

dismissed with heavy cost on the petitioners for

having urged and alleged baseless, false and

unsustainable allegations.”

23. We also take notice of one further affidavit-in-reply filed on

behalf of the respondent no.3, duly affirmed by Shri Barun

Kumar Sahu, Director (Personnel), Police-II Division, Ministry of

Home Affairs. We quote the averments made therein as under :

“2. I say that I have read and understood the

contents mentioned in the affidavit dated 22.04.2010

filed by the Petitioner and that the petitioner has filed

the affidavit under reply to prove the existence of No.9

Smt.Madavi Hurre in the Writ Petition as she could not

be produced before the Hon’ble Court by the petitioner.

It is stated that the petitioner has filed several copies of

the pages of the Tehalka magazine on the basis of

which he is trying to prove the existence of the

petitioner in question. The magazine or newspaper are

not the primary evidence or authentic proof of any

material or fact and have no exclusive evidentiary

value. Hence, the production of copies of the pages of

Tehalka magazine are inadmissible and same are

opposed. Also that the petitioner no.1 has been trying

since the very beginning to blame the security Forces,

fighting with naxalities, with the imaginary charge of

atrocities/ arsons which they have miserably failed in

proving and also trying to unnecessary lengthen the

litigation by putting up various miscellaneous

applications without any relevance to the case. The

manner in which false allegations have been made

from time to time against the security forces is a matter

of record. The whole attempt is to demoralize the

security forces by tarnishing their image and shaking

their confidence. It is also pertinent to mention here

that the authenticity of Tehalka magazine, which the

petitioner is relying upon cannot believed as the dates

mentioned in magazine are not correct.

PARAWISE REPLY :

1. The contents of para 1 need no comments.

2 The reply to the contents of para 2 it is stated

that the name of Madavi Hurre is only mentioned in the

list of petitioners and there is no mention in the writ

petition that she has suffered any loss or injury at the

hands of security forces. The Writ petition does not

make a mention that she is the wife of Madvi Deva.

The petitioner has tried to prove her existence on the

basis of her thumb impression on the vakalatnama but

the document is not produced as Annexure. Hence, the

fact cannot be admitted as proved. The petitioner has

failed to produce the witness in the court. If she is

available, there should not be any objection in her

production before the Hon’ble court. The fact of visit of

the Madavi Hurre to Delhi on 20.10.2009 is not proved

at all. On the other hand it is also humbly stated that

all the 10 petitioners produced have not blamed the

CRPF/ COBRA (SAF) of any of the killing/ atrocities as

alleged by the petitioner no.1 in the writ petition.

3. In reply to the contents of para 3 to 8 , I say that

the Tehalka Magazine (7th November, 2009 at P/37)

have published the photograph of a lady with a child in

her lap. The magazine describes her to be resident of

village Singanmadgu whereas she has been shown as

resident of village : Ganchapalli now the petitioner has

also added that she is resident of Village

Singanpalli/Singanmadgu. The contradiction in name

of villages is apparent and hence unbelievable. The

magazine has stated in this report that the incident

had taken place on October 17, which is wrong and

magazine have published it without verifying the facts

which clearly shows that the main intention of the

petitioner is to malign the image of the security Forces,

CRPF/COBRA (SAF) engaged in anti-naxal operations,

it is also pertinent to mention here that the Petitioner

has only mentioned names of persons who according to

him met the lady and interviewed her but still could not

establish her signing the writ petition and hence cannot

be relied upon.

4. In reply to the contents of para 9, I say that in

almost all the applications/affidavits, the petitioner

no.1 is seen to be initiating or at times one Shri

Pushkar Raj of PUCL is seen to be asking for

impleadment on various reasons the same which

shows that the other petitioners i.e. 2 to 13 have been

unnecessarily included on the behest where as 10

petitioners who were produced before the Hon’ble

Court have not blamed the CRPF/COBRA (SAF)

personnel for any of the atrocities committed as alleged

in the writ petition. A copy of the list of applications

made by petitioner no.l & Shri Pushkar Raj is enclosed

herewith as Annexure-A/1.

It is also pertinent to mention here that on

06.04.2010, in an incident, the naxalites have killed

75 CRPF personnel. The death of 75 CRPF personnel

and one civil police personnel on 6/4/2010 clearly

indicates the menace of naxalism in State of

Chattisgarh and the troops are engaged to fight

naxalism to protect the integrity and in fact the very

existence of the democratic system. Now the petitioner

with his interviews to various electronic media

channels like NDTV India through its various

discussion forunis has tried to malign the image of the

CRPF/COBRA (SAF) by blaming them whereas the

matter is subjudice before the Hon’ble Supreme Court,

hence, the petitioner himself had taken up the role of

Judge in this matter, which clearly shows the

intentions of the petitioner no. 1 in the matter.”

24. We may now look into the affidavit duly affirmed by Shri

Rajesh Kukreja, Additional Superintendent of Police,

Headquarter Dantewada, Chhattisgarh. In this affidavit, the

information as regards the compensation paid to the members of

the family of the deceased has been furnished. We quote the

same as under :

“3. It is submitted that in the affidavit dated

23.04.2010 the petitioner has stated that Madvi Hurre

is a resident of Singanpalli/Singanmadgu which is

different from the name of the village (Gacchanpalli)

mentioned in the Writ Petition. In the same affidavit

the petitioner has mentioned Late Madvi Deva was the

husband of petitioner no.9. This is different from the

name of husband mentioned in the Writ Petition which

is Madvi Hurra.

4. It is submitted that on further investigation

regarding petitioner no. 9 has revealed that there is no

such person by the name of Madvi Hurre in village

Singanpalli/ Singanmadgu. This is also confirmed by

the Tehsildar, Konta Sub Division. A copy of report

and certificate issued by the Tehsildar Konta,

Sarpanch and Secretary of Burkalanka Gram

Panchayat and Secretary Gram Panchayat Pentapar

is collectively enclosed and as marked as Annexure R1. There is no such person as per the voter's list of

village Gacchanpalli and Singanmadgu. A copy of

voters list of Village Ganchapalli and Singanmadgu

are collectively enclosed herewith and the same is

marked as Annexure R-2.

5. It is further submitted that further investigation

and enquiries have revealed that the petitioner No.6 is

Madvi Pojja is still in Andhra Pradesh.

6. It is submitted that a sum of Rs.4,00,000/- has

been sanctioned to be paid to the petitioner no.2

Soyam Rama vide Collector Dantewada order no. 752

dated 4.03.2010 as compensation for death of four

members of his family.

7. It is submitted that a sum of Rs.1,00,000/- has

been sanctioned to be paid to the petitioner no. 4

Madvi Hidma son of Madvi Podiya vide Collector

Dantewada order no. 756 dated 4.03.2010 as

compensation for death of his cousin brother of his

family.

8. It is submitted that in the 164 statement recorded

on 11.03.2010, the petitioner no. 5 (Madvi Sukda) has

stated that his son was killed three years ago

whereas in the complaint filed with the writ petition

he has stated that his son was killed on 17.09.2009.

Since the two statements are different hence further

investigation is being conducted to arrive at the truth.

For the reasons mentioned above no compensation

has been paid to petitioner no. 5.

9. It is submitted that a sum of Rs. One lakh has

been sanctioned to be paid to the family member

(Dudhi Bhima) of petitioner no. 6 vide Collector

Dantewada order no. 756 dated 4.03.2010 towards

compensation for death of his cousin brother of his

family.

10. It is submitted that a sum of Rs.Two lakh has

been sanctioned to be paid to the petitioner no. 7 vide

Collector Dantewada order no. 752 dated 4.03.2010

as compensation for death of two members of his

family.

11. It is submitted that compensation has not been

paid to petitioner no. 3 & 8 since investigation is being

carried out.

12. It Is submitted that a sum of Rs.1,00,000/- has

been sanctioned to be paid to the Petitioner no. 10

(Madavi Raja) vide Collector — Dantewada Order

No.756 dated 04.03.2010.

13. It is submitted that a sum of Rs.1,00,000/- has

been sanctioned to be paid to the Petitioner No.11 -

Smt. Madkam Muke vide Collector - Dantewada Order

No.756 dated 04.03.2010.

14. It is submitted that a sum of Rs.1,00,000/- has

been sanctioned to be paid to the Petitioner No.12 —

Shri Kowasi Kosa vide Collector - Dantewada Order

No.756 dated 04.03.2010.

15. It is submitted that a sum of Rs.10,000/- has

been sanctioned to the Petitioner No.13 - Smt. Sodi

Sambo for sustaining injury vide Collector -

Dantewada Order No.889 dated 11.03.2010 .

16. It is respectfully submitted that further

investigation in the cases registered are being carried

out by the State CID.”

SUMMATION OF THE STANCE OF THE RESPONDENTS :

25. Thus, if we have to sum up the stance of the respondents,

then the same is that the entire case put up by the writ

petitioners portraying the incidents of 17th September 2009 and

1st October 2009 respectively as a brutal massacre by the

members of the different Police and Paramilitary Forces is

palpably false. All the averments made in the memorandum of

the writ petition are ex facie false and fabricated. An attempt has

been made to mislead this Court. False allegations have been

levelled on the police and the paramilitary forces with a mala fide

intention to change the narrative of the incidents, i.e. to portray

the dreaded Left Wing Extremists (Naxals), who were waging an

armed rebellion against the security forces of the country and

threatening the sovereignty and integrity of the country, as

innocent tribal victims being massacred by the security forces.

26. It is the case of the respondents that this false narrative of

the massacre of innocent tribals by the security forces was

created to somehow achieve immediate cessation of the

advancement of the security forces against the concerned armed

Left Wing Extremists. The purpose and motive of the present writ

petitioners was also to derail the ongoing efforts of the security

forces in neutralizing the Left Wing Extremism movement and

the armed Left Wing Extremists; to deprive the dignity and

credibility of the security forces; to lower the morale of the

security agencies by portraying them as demons and national

villains, i.e. slayers of innocent tribal people; and to foist false

cases on them so that in future such false cases would act as a

deterrent. In short, the case of the respondent is that the entire

writ petition is nothing but a fraud played upon with the Court.

27. All the First Information Reports were thoroughly

investigated and charge sheets have been filed in the concerned

courts for different offences under the Indian Penal Code, 1860

(for short, “the IPC”) and other enactments. All the accused

persons named in the charge sheets have been shown as

absconding. It is not that the investigation has not been carried

out. The filing of the charge sheets is prima facie material to put

the accused persons named therein on trial. The charge sheets

filed against the accused persons named therein bear eloquent

testimony to the fact that the allegations levelled against the

police and paramilitary forces are absolutely false and reckless.

28. The petitioners have miserably failed to point out as to in

what manner the investigation carried out could be said to be

perfunctory. Without even studying the charge sheets how can it

be asserted on their part that nothing has been done by the

investigating agencies. Even for the purpose of making out a

case for further investigation, the infirmities in the charge sheets

must be pointed out to the satisfaction of the Court. Nothing of

that sort has been pointed out to this Court.

SUBMISSIONS ON BEHALF OF THE WRIT PETITIONERS :

29. Mr. Colin Gonsalves, the learned senior counsel appearing

for the petitioners, vehemently submitted that the alleged brutal

incidents of killing of the tribals should be investigated through

the CBI. He would submit that the family members of the

petitioners were killed in cold-blood by the Chhattisgarh Police,

Special Police Officers (SPOs) appointed by the Chhattisgarh

Government in collusion with the activists of the Salwa Judum

(group of vigilantes sponsored by the Chhattisgarh Government)

and the Central Paramilitary Forces consisting of the CRPF and

the CoBRA Battalion, in two separate attacks dated 17th

September 2009 and 1st October 2009 respectively.

30. Mr. Gonsalves would submit that the State of Chhattisgarh

and the Chhattisgarh Police have not done anything so far

despite the fact that the eye-witnesses have identified the

accused persons in some of the cases. He would submit that not

a single eye-witness has been called so far for the purpose of

recording of his statement. The learned senior counsel would

submit that the only hope is the CBI.

31. In such circumstances referred to above, Mr. Gonsalves

prays that this Court may issue a mandamus directing the CBI

to carry out the investigation of all the First Information Reports

referred to above.

SUBMISSIONS ON BEHALF OF THE RESPONDENTS :

32. Mr. Tushar Mehta, the learned Solicitor General appearing

for the Union of India, on the other hand, has vehemently

opposed the present writ petition. He would submit that the

petition deserves to be rejected not only with exemplary costs,

but each of the petitioners should be held guilty of levelling false

charges of offence and of giving false and fabricated evidence

before this Court with an intention to procure conviction for a

capital offence or for life imprisonment against the personnel of

security forces with a view to screen off the actual offenders of

the Left Wing (Naxal) terrorism.

33. Mr. Mehta would submit that if such palpably false and

motivated writ petition at the instance of an NGO is entertained

by this Court, then the same may lead to disastrous results as

the very morale of the different police and paramilitary forces

fighting against the Naxals would be shaken.

34. Mr. Mehta, in the course of his submissions, highlighted a

very shocking picture as to how the Naxalites, over a period of

time, have brutally killed the members of the police forces.

According to Mr. Mehta, the mastermind behind this writ

petition is the petitioner no.1 claiming to run an NGO for the

welfare and interest of the tribals. According to Mr. Mehta, the

petitioners nos.2 to 13 are absolutely rustic and illiterate tribals.

It is at the instigation of the petitioner no.1 that they might have

thought fit to join as the petitioners.

35. Mr. Mehta would submit that this petition is of the year

2009. Almost 13 years have passed by till this date. However, it

is very shocking to know that none of the petitioners have any

idea about the investigation which has already been carried out

by the police with respect to each of the FIRs.

36. Mr. Mehta invited the attention of this Court to one order

passed by a Coordinate Bench dated 15th February 2010. The

same reads thus :

“O R D E R

The Chief Secretary, in terms of our directions, has filed

his Report, which shall form part of the record and to

be put in a sealed cover.

On 8.2.2010, after hearing the parties, we have issued

the following directions :

“Learned senior counsel appearing on behalf of the

petitioners submits that after the adjournment of

this Writ Petition on 5th February, 2010 Petitioner

Nos. 2 to 13 were illegally taken into custody or

caused their disappearance by the respondentpolice. Learned counsel appearing for the State of

Chhatisgarh seriously disputes the correctness of

the assertion made by the learned senior counsel

about the police being responsible for causing the

disappearance of Petitioner Nos. 2 to 13.

We at this stage do not propose to express any

opinion whatsoever on this issue relating to the

alleged disappearance of the Petitioner Nos. 2 to

13.

Be that as it may, we would like to examine the

Petitioner Nos. 2 to 13 and hear their version as to

what transpired in the matter after we have heard

and adjourned the hearing of this petition on 5th

February, 2010 or prior thereto.

The interest of justice requires the production of

Petitioner Nos. 2 to 13 in this Court. We,

accordingly, direct Respondent No.1 to produce the

Petitioner Nos. 2 to 13 in this Court on 15th

February, 2010 for the purpose of further hearing

of this petition.

The Chief Secretary, State of Chhatisgarh is

directed to ensure the compliance of this Order and

submit his own report on or before 15th February,

2010.”

Pursuant to our directions the first respondent

produced six out of 13 petitioners, namely, Shri Soyam

Rama, Shri Kunjam Hidma, Shri Madavi Hidma, Shri

Soyam Dulla, Smt. Muchki Sukri and Smt. Sodhi

Sambo (Petitioner Nos. 2, 3, 4, 7, 8 and 13

respectively). We are informed that the six petitioners

who are produced before us today speak only ‘Gondi

language’ and no other language. In the circumstances,

it would not be possible for us even to elicit any

information from them and interact with them.

We are of the view that their security is a paramount

consideration.

It is equally important that they should be allowed to

express themselves freely without being influenced by

any outside agencies or individuals.

In the circumstances, we consider it appropriate to

request Mr. G.P. Mittal, District Judge-I, Tis Hazari,

Delhi to record their statements in the presence of the

interpreter, namely, Mohan Sinha, as well as the first

petitioner Mr. Himanshu Kumar, who is stated to be

conversant with their language. The District Judge

shall first satisfy to himself that the petitioners, who

are required to be examined by him are not under any

pressure or threat from any quarter whatsoever. We

also request the District Judge to ensure their safety as

along as they are in Delhi, for which purpose the Union

of India shall comply with such directions as may be

issued by the District Judge from time to time. The

learned Attorney General for India has stated before us

that in terms of the directions to be issued by the

District Judge, the Union of India shall ensure their

safety and protection.

We also permit the learned counsel for the petitioner

Shri Colin Gonsalves or any other lawyer to be

nominated by him to be present in the proceedings

before the District Judge along with counsel for the

Union of India and the counsel for the State of

Chhatisgarh.

We make it very clear that the District Judge shall

proceed to record the statement only after being

satisfied to himself that the persons produced before

him are free from any pressure and are capable of

making statement freely without being influenced by

any of the outside agency/parties. The learned

District Judge is requested to arrange for a

videography of the entire proceedings.

The Registrar Judicial will immediately convey this

order to the District Judge. Copy of this order shall

also be given to the counsel for all the parties. List

this matter tomorrow at 1-15 p.m. in Court for further

directions.”

37. According to Mr. Mehta, in context with the aforesaid

order, various statements of the petitioners came to be recorded

by the District Judge-I and Sessions Judge, Delhi. The plain

reading of such statements of the petitioners would indicate that

they have no idea as to what has been stated in the

memorandum of the writ petition and for what reasons the writ

petition came to be filed. The statements recorded by the

Judicial Officer in accordance with the directions issued by a

Coordinate Bench of this Court vide the order referred to above,

destroys the entire case put up by the writ petitioner no.1.

38. Mr. Mehta urged before this Court to take a strict view of

the matter. Mr. Mehta also pointed out that the Union of India

has filed an Interlocutory Application No. 52290 of 2022 seeking

appropriate action against the petitioners. We shall look into and

deal with the Interlocutory Application a little later.

39. In such circumstances referred to above, Mr. Mehta prays

that this writ petition may be rejected with exemplary costs and

appropriate action may be taken against the writ petitioners.

SUBMISSIONS ON BEHALF OF THE STATE OF

CHHATTISGARH :

40. Mr. Sumeer Sodhi, the learned counsel appearing for the

State of Chhattisgarh, has also vehemently opposed this writ

petition. In a written note provided to us, Mr. Sodhi has

highlighted in what manner the Chhattisgarh Police carried out

the investigation of both the incidents and also the details as

regards the registration of the FIRs. The same reads thus :

“Crime No.: 04/2009

Police Station: Bhejji

Date of Registration: 18/09/2009

Sections: 147, 148, 149, 307 IPC; 25, 27 Arms Act.

Date of Incident: 17.09.2009.

Complainant: Shri Ravindra Singh, Assistant Commdt.

201 Cobra Bn.

Accused: Unknown Maoist Cadres and Sangam Members

Allegations: On information about the presencc of Naxal

cadres, an anti-naxal operation was launched on

16.09.2009 from PS Bhejji towards Gachchanpalli,

Aitrajpad and Entapad by the Security forces. Naxals

made a life threatening attack on security forces near

Gachchanpalli and run away putting their shelter on

fire.

Gist of Final Report : Even after a long search no

accused were found and on no possibility of finding in

near future, closure report was filed before the Hon'ble

court on 20.10.2010.

Present Status: According to the closure report

presented by the investigating officer, even after a long

search no accused were found and on no possibility of

finding in near future closure report is accepted on

26.10.2010 by the learned chief Judicial Magistrate.

Crime No.: 10/2009 :

Police Station: Chintagufa

Date of Registration: 20/09/2009

Sections: 395, 397, 147, 148, 149, 302 IPC; 25, 27

Arms Act; 3,4 Explosive. Subs. Act.

Date of Incident: 17.09.2009 and 18.09.2009.

Complainant: Shri Premprakash Awadhiya, Sub

Inspector, PS.-Sukma

Accused: Unknown Uniformed female and male

naxalites about 200-300.

Allegations: On 16/09/2009, the police party left for

Singanmadgu for Anti Naxal operation from police

station Chintagufa. On the morning of 17/09/2009,

when the party reached the dense forests of

Singanmadgu, the camp of Naxalites were seen and

exchange of fire took place. After encounter in search of

the place of incident weapons and a body of naxal was

recovered. Then after a while one km ahead 200-300

unknown Naxalites again cordoned the police party

and attacked the Security forces, in which - Assistant

Commandant Shriram Manoranjan, Assistant

Commandant Shri Rakesh Kumar Chaurasiya, Sub

Inspector Shri Sushil Kumar Varma, Head-Constable

Lalit Kumar, Constable Manoharlal Chandra and

Constable Uday Kumar Yaday of Cobra Company were

martyred and four others Constable Satpal, Constable

Harish Thakur, Constable Kamalvoshe and Constable

Mohammad Husain Quraishi were also injured.

Gist of Final Report: According to the investigating

officer, even after a long search no accused were found

and since there was no possibility of finding in near

future, closure report has been filed before the Hon’ble

Trial court on 20.10.2010.

Present Status: According to the closure report

presented by the investigating officer, even after a long

search no accused were found and on no possibility of

finding in near future closure report is accepted on

26.10.2010 by the learned Chief Judicial Magistrate.

Crime No.: 06/2010

Police Station: Bhejji

Date of Registration: 21/02/2010

Sections: 147, 148, 149, 302 IPC; 25, 27 Arms Act.

Date of Incident: Approximately three-four months ago

at 7.00 am in the morning from the date of incident,

(therefore, probable incident here is 01.10.2009)

Complainant: Shri Maadvi Hadma Address:

Gachhanpalli (Petitioner No. 4)

Accused: 20-25 Unknown uniformed person holding

gun and banda.

Absconding accused1-Venktesh s/o Unknown

2-Rajesh alias Joga s/o Unknown

3-Vijay alias Vijay alias Ekanna

4-Savitri Bhai w/o Unknown

5-Manila w/o Unknown

6-Bhima s/o Unknown

7-Jayram s/o Unknown

8-Samita w/o Chandrana

9-Bhaskar alias Rajesh s/o Venkteshwerlu

10-Kavita D/o jayram

Allegations: On 21/02/2010 upon report of applicant

Madvi Hadma, resident of Gachchanpalli, FIR

No.06/2010 u/s 147, 148, 149, 302 IPC & 25, 27

Arms Act was registered at Police Station Bhejji against

unknown naxalites for murder of Madvi Hidma, Madvi

Joga, Kawasi Ganga, Madkami Chula & Dudhi Muye.

Gist of Final Report: Chargesheet filed on 09/09/2010

against 10 named absconding accused u/sec.147,

148, 149, 302 IPC; 25, 27 Arms Act.

Present Status: Permanent warrant has been issued

against the absconding accused by the Hon’ble

Judicial Magistrate First Class Konta.

INCIDENT 2: 01.10.2009 (Gompad)

6. In respect of the incident dated 01.10.2010 that took

place at Gompad, the State of Chhattisgarh has

already registered following FIRs against the offences

committed on that day. The details of the FIRs are:

Crime No.: 05/2009

Police Station: Bhejji

Date of Registration: 25/11/2009

Sections: 147, 148, 149, 307 IPC; 25, 27 Arms Act.

Date of Incident: 01.10.2009.

Complainant: Shri Matram Bariha, Head Constable,

PS.-Bhejji

Accused: Unknown Uniformed Naxalites in large

numbers.

Allegations: On the information of increased activities

and camps of armed naxalites in Gompad village PS

Bhejji, three teams of Cobra 201 Bn departed on an

anti naxal operation on 30/09/2009 from injram. On

01.10.2009 this combined party was ambushed by

Naxalites in Gompad.

Gist of Final Report: According to the investigating

officer, even after a long search no accused were found

and on no possibility of finding in near future closure

report is filed before the Hon’ble court on 20.10.2010

Present Status : According to the closure report

presented by the investigating officer, even after a long

search no accused were found and on no possibility of

finding in near future closure report is accepted on

26.10.2010 by the learned Chief Judicial Magistrate.

Crime No.: 01/2010

Police Station: Bhejji

Date of Registration : 08/01/2010

Sections : 396, 397 IPC, 25, 27 Arms Act.

Date of Incident : Approximately a week before

Deewali.

Complainant : Shri Soyam Rama (Petitioner No.2)

Accused : Unknown Armed uniformed person 20-25

Absconding accused1-Venktesh s/o Unknown

2-Rajesh alias Joga s/o Unknown

3-Vijay alias Vijay alias Ekanna

4-Savitri Bhai w/o Unknown

5-Manila w/o Unknown

6-Bhima s/o Unknown

7-Jayram s/o Unknown

8-Samita w/o Chandrana

9-Bhaskar alias Rajesh s/o Venkteshwerlu

10-Kavita D/o Jayram

Allegations: On 08/01/2010 upon information of

applicant Soyam Rama s/o Soyam Kanna resident

Gompad village, a FIR-01/2010 u/s 396, 397 IPC, 25,

27 Arms Act was registered in PS Bhejji and taken into

investigation against unknown naxalites causing

murder of 7 deceased named - Madvi Bazar, Madvi

Subbi, Madvi Mutti, Kattam Kanni, Madvi Enka, Soyam

Subba and Soyam Jogi.

Gist of Final Report: Chargesheet filed on 09/09/2010

against 10 named absconding accused u/s 396, 397

IPC; 25, 27 Arms Act.

Present Status: Permanent warrant has been issued

against the absconding accused by the Hon’ble

Judicial Magistrate First Class Konta.

Crime No.: 07 2010

Police Station: Bhejji

Date of Registration: 22/02/2010

Sections: 147, 148, 149, 302 IPC, 25, 27 Arms Act.

Date of Incident: A approximately five months ago in

the morning from the date of incident, (therefore,

probable incident here is 01.10.2009)

Complainant: Shri. Komram Lachcha, AddressChintagufa

Accused: 20-25 Unknown uniformed person holding

gun and banda.

Absconding accused1-Venktesh s/o Unknown

2-Rajesh alias Joga s/o Unknown

3-Vijay alias Vijay alias Ekanna

4-Savitri Bhai w/o Unknown

5-Manila w/o Unknown

6-Bhima s/o Unknown

7-Jayram s/o Unknown

8-Samita w/o Chandrana

9-Bhaskar alias Rajesh s/o Venkteshwerlu

10-Kavita D/o Jayram

Allegations: On 22/02/2010 upon report of applicant

Komram Lachcha, resident of Chintagufa, FIR

No.07/2010 u/s 147, 148, 149, 302 IPC & 25, 27

Arms Act was registered at PS - Bhejji against

unknown naxalites for murder of Komram Mutta.

Gist of Final Report: Chargesheet filed on 09/09/2010

against 10 named absconding accused u/sec.147,

148, 149, 302 IPC & 25, 27 Arms Act.

Present Status: Permanent warrant has been issued

against the absconding accused by the Hon’ble

Judicial Magistrate First Class Konta.”

41. Mr. Sodhi also highlighted the following contradictions and

anomalies in the case of the petitioners :

“1. Hot oil theory retracted:

Petitioner claimed in the Writ Petition at Page E of the

Synopsis and Page 9 of the Petition Paper book that

one Muchki Deva (60yrs) of Ondhepara was grazing

cattle on the morning of 17th September. He was

caught, beaten and dragged into the village by

security forces. He was hanged upside down from a

tree and a pot of oil was lit below and he was

dropped into it. As a result, the upper part of his body

was severely burnt and he had developed maggots in

his wounds.

However, thereafter the Petitioners filed an

Application before this Hon’ble Court dated

02.02.2010 bearing Crl.M.P. No. 3173/2010 seeking

directions from this Hon’ble Court. In the said

Application, the Petitioners retracted the Hot Oil

Theory in Paragraph 18 of the Application stating that

it was a mistake that took place during translations. It

was now claimed that Muchki was burnt by

electrocution by attaching wires to his head.

It is important to note that the present Writ Petition

was filed on around 27.10.2009, notice by this Court

was issued on 23.11.2009 on the basis of the

contents of the Writ Petition, and the Interlocutory

Application bearing Cri. MP No. 3173.2010 was

moved on 02.02.2010. Therefore, it is pertinent to note

that Petitioners have changed their stand multiple

times in respect of serious allegations levelled against

the defence forces of the country and the Chhattisgarh

Police Department.

2. Contradictions in complaint vis-a-vis Sec. 164

Statements about killings -

Petitioner No. 5 in the complaint filed alongwith the

present Writ Petition at Page 35 of the Paperbook has

alleged that his son was killed on 17.09.2009 by

SPOs. It is pertinent to note that the State of

Chhattisgarh in its affidavit dated 30.08.2010 has

stated in paragraph 8 that in Statement of Petitioner

No. 5 recorded under Section 164 of the Criminal

Procedure Code, 1973 on 11.03.2010, he has stated

that his son was killed three years ago.

3. False narrative sought to be created in Petitioner’s

Written submissions -

A plain reading of Paragraph 13 of the Written

Submissions filed by the Petitioner creates a brutal

impression of the security forces to the effect that

Petitioner No.13’s two year old grandchild was killed

after chopping off the child’s fingers. The purported

cyclostyle complaint of Petitioner No. 13 is at Page 53

whereas her statement recorded under orders of this

Court can be found at Page 171 of the Paperbook. A

perusal of both these documents reveals that no such

case was ever made out by Sodhi Sambo i.e.

Petitioner No. 13.

4. Non-corroboration of contents of Writ Petition with

statements made by the Petitioners before District

Judge appointed by this Court —

Looking at the seriousness of the allegations

contained in the Writ Petition, which were vehemently

denied by the State, this Court directed that

statements of Petitioner Nos. 2-13 be recorded by a

District Judge at New Delhi. A bare perusal of the

statements made by the Petitioners reveal that none of

the Petitioners corroborate the allegations made in the

writ petition. Further the petitioners do not even say

that their relatives were killed by uniformed persons. -

Ref can be made to the Statements - Page 154

onwards

5. No Affidavit of authorisation of Petitioners No. 2 to

It is pertinent to note that the present petition has

been filed by the Petitioner No. 1 (Himanshu Kumar)

on behalf of Petitioner No. 2 to 13. However, there is

no affidavit on record whereby Petitioners No. 2 to 13

have authorised Petitioner No. 1.”

42. In such circumstances referred to above, Mr. Sodhi prays

that there being no merit in the present writ petition, the same

may be rejected with exemplary costs and appropriate actions

against each of the writ petitioners for misleading the Court and

fabricating false evidence.

ANALYSIS :

43. Having heard the learned counsel appearing for the parties

and having gone through the materials on record, the only

question that falls for our consideration is, whether any case has

been made out by the writ petitioners for the investigation of the

two incidents through the CBI.

POSITION OF LAW :

44. It is now settled law that if a citizen, who is a de facto

complainant in a criminal case alleging commission of cognizable

offence affecting violation of his legal or fundamental rights

against high Government officials or influential persons, prays

before a Court for a direction of investigation of the said alleged

offence by the CBI, such prayer should not be granted on mere

asking. A Constitution Bench of this Court, in the case of the

State of West Bengal and others v. Committee for Protection

of Democratic Rights, West Bengal, reported in (2010) 3 SCC

571, has made the following observations pointing out the

situations where the prayer for investigation by the CBI should

be allowed :

“70.… In so far as the question of issuing a direction

to CBI to conduct investigation in a case is concerned,

although no inflexible guidelines can be laid down to

decide whether or not such powers should be

exercised, but time and again it has been reiterated

that such an order is not to be passed as a matter of

routine or merely because a party has levelled some

allegations against the local police. This

extraordinary power must be exercised

sparingly, cautiously and in exceptional

situations where it becomes necessary to provide

credibility and instil confidence in

investigations or where the incident may have

national and international ramifications or

where such an order may be necessary for doing

complete justice and enforcing the fundamental

rights. Otherwise CBI would be flooded with a large

number of cases and with limited resources, may find

it difficult to properly investigate even serious cases

and in the process lose its credibility and purpose

with unsatisfactory investigations.”

(emphasis supplied)

45. In the above decision, it was also pointed out that the same

court in Secretary, Minor Irrigation & Rural Engineering

Services, U.P. v. Sahngoo Ram Arya & Anr., (2002) 5 SCC

521, had said that an order directing an enquiry by the CBI

should be passed only when the High Court, after considering

the material on record, comes to the conclusion that such

material does disclose a prima facie case calling for an

investigation by the CBI or any other similar agency.

46. In an appropriate case when the Court feels that the

investigation by the police authorities is not in a proper

direction, and in order to do complete justice in the case and if

high police officials are involved in the alleged crime, the Court

may be justified in such circumstances to handover the

investigation to an independent agency like the CBI. By now it is

well-settled that even after the filing of the charge sheet the court

is empowered in an appropriate case to handover the

investigation to an independent agency like the CBI.

47. The extraordinary power of the Constitutional Courts

under Articles 32 and 226 respectively of the Constitution of

India qua the issuance of directions to the CBI to conduct

investigation must be exercised with great caution as underlined

by this Court in the case of Committee for Protection of

Democratic Rights, West Bengal (supra) as adverted to herein

above, observing that although no inflexible guidelines can be

laid down in this regard, yet it was highlighted that such an

order cannot be passed as a matter of routine or merely because

the parties have levelled some allegations against the local police

and can be invoked in exceptional situations where it becomes

necessary to provide credibility and instill confidence in the

investigation or where the incident may have national or

international ramifications or where such an order may be

necessary for doing complete justice and for enforcing the

fundamental rights. We are conscious of the fact that though a

satisfaction of want of proper, fair, impartial and effective

investigation eroding its credence and reliability is the

precondition for a direction for further investigation or reinvestigation, submission of the charge sheet ipso facto or the

pendency of the trial can, by no means, be a prohibitive

impediment. The contextual facts and the attendant

circumstances have to be singularly evaluated and analyzed to

decide the needfulness of further investigation or re-investigation

to unravel the truth and mete out justice to the parties. The

prime concern and the endeavour of the court of law should be

to secure justice on the basis of true facts which ought to be

unearthed through a committed, resolved and a competent

investigating agency.

48. The above principle has been reiterated in K.V. Rajendran

v. Superintendent of Police, CBCID South Zone, Chennai,

(2013) 12 SCC 480. Dr. B.S. Chauhan, J. speaking for a threeJudge Bench of this Court held :

“13. …This Court has time and again dealt with the

issue under what circumstances the investigation can

be transferred from the State investigating agency to

any other independent investigating agency like CBI. It

has been held that the power of transferring such

investigation must be in rare and exceptional cases

where the court finds it necessary in order to do justice

between the parties and to instil confidence in the

public mind, or where investigation by the State police

lacks credibility and it is necessary for having “a fair,

honest and complete investigation”, and particularly,

when it is imperative to retain public confidence in the

impartial working of the State agencies. …”

49. Elaborating on this principle, this Court further observed:

“17. … the Court could exercise its constitutional

powers for transferring an investigation from the State

investigating agency to any other independent

investigating agency like CBI only in rare and

exceptional cases. Such as where high officials of State

authorities are involved, or the accusation itself is

against the top officials of the investigating agency

thereby allowing them to influence the investigation,

and further that it is so necessary to do justice and to

instil confidence in the investigation or where the

investigation is prima facie found to be tainted/biased.”

50. The Court reiterated that an investigation may be

transferred to the CBI only in “rare and exceptional cases”. One

factor that courts may consider is that such transfer is

“imperative” to retain “public confidence in the impartial

working of the State agencies.” This observation must be read

with the observations made by the Constitution Bench in the

case of Committee for Protection of Democratic Rights, West

Bengal (supra), that mere allegations against the police do not

constitute a sufficient basis to transfer the investigation.

51. In Romila Thapar v. Union of India, (2018) 10 SCC 753,

one of us, A.M. Khanwilkar, J., speaking for a three-Judge

Bench of this Court (Dr. D.Y. Chandrachud, J. dissenting) noted

the dictum in a line of precedents laying down the principle that

the accused “does not have a say in the matter of appointment of

investigating agency”. In reiterating this principle, this Court

relied upon its earlier decisions in Narmada Bai v. State of

Gujarat, (2011) 5 SCC 79, Sanjiv Rajendra Bhatt v. Union of

India, (2016) 1 SCC 1, E. Sivakumar v. Union of India, (2018)

7 SCC 365, and Divine Retreat Centre v. State of Kerala,

2008) 3 SCC 542. This Court observed:

“30…the consistent view of this Court is that the

accused cannot ask for changing the investigating

agency or to do investigation in a particular manner

including for court- monitored investigation.”

52. It has been held by this Court in CBI & another v. Rajesh

Gandhi and another, 1997 Cr.L.J 63, that no one can insist

that an offence be investigated by a particular agency. We fully

agree with the view in the aforesaid decision. An aggrieved

person can only claim that the offence he alleges be investigated

properly, but he has no right to claim that it be investigated by

any particular agency of his choice.

53. The principle of law that emerges from the precedents of

this Court is that the power to transfer an investigation must be

used “sparingly” and only “in exceptional circumstances”. In

assessing the plea urged by the petitioner that the investigation

must be transferred to the CBI, we are guided by the parameters

laid down by this Court for the exercise of that extraordinary

power.

54. Bearing in mind the position of law as discussed above, we

now proceed to consider, whether in the facts of the present

case, more particularly, from the materials on record, it has been

prima facie established that it is a fit case for allowing the

prayers of the writ petitioners for investigation by the CBI.

55. We are really taken by surprise that the learned senior

counsel appearing for the writ petitioners is absolutely oblivious

of the fact that all the FIRs were investigated by the concerned

investigating agencies and, at the end of the investigation,

charge sheets came to be filed in different courts of the State of

Chhattisgarh for the offences under the IPC like murder, dacoity,

etc.

56. We are of the view, having regard to the materials on

record, that no case, worth the name for further investigation or

re-investigation, could also be said to have been made out.

57. The filing of the charge sheets at the conclusion of the

investigation into the various FIRs referred to above would

indicate that the alleged massacre was at the end of the

Naxalites (Maoists). The materials collected in the form of the

charge sheets substantiate the case put up by the respondents

that the villagers were attacked and killed by the Naxalites.

There is not an iota of material figuring in the investigation on

the basis of which even a finger can be pointed towards the

members of the police force.

58. If we go by the tenor of the writ petition, it gives an

impression that proper investigation is not being done and,

therefore, the same should be handed over to the CBI. However,

the fact is that the investigation has already been carried out

and charge sheets have been filed. Unfortunately, neither the

learned senior counsel appearing for the writ petitioners nor any

of the writ petitioners, more particularly, the writ petitioner no.1,

the protagonist behind the filing of the present writ petition,

running an NGO, has any idea about the charge sheets and the

materials collected in the course of the investigation. If the

investigation has already been carried out and charge sheets

have been filed and if the court has to now consider the plea of

the writ petitioners, then the same would become a case of

further investigation.

59. We shall highlight as to why we are saying so as above. We

come back to the order passed by a Coordinate Bench of this

Court dated 15th February 2010. Pursuant to the same, the

statements of the petitioners were recorded by the District and

Sessions Judge, Delhi. We may quote one such statement

recorded by the District and Sessions Judge of the petitioner

no.2, namely, Soyam Rama. We quote the entire statement as

under :

“Present:

Petitioner No.1 Himansu Kumar alongwith Counsel Shri

Colin Gonslaves. Sr. Advocate alongwith Shri Divya

Jyoti, Advocate.

Shri Atul Jha Advocate alongwith Shri D.K. Sinha

Advocate, Counsel for State of Chattisgarh.

Shri P.K. Dey, Advocate on behalf of UOI alongwith Shri

Jitender, Advocate.

Shri R.K. Tanwar, Addl. PP for Govt. of NCT of Delhi

alongwith Shri Navin Kumar, Asstt.Public Prosecutor

At 3:49 p.m., order dated 15.2.2010 passed by the

Hon’ble Supreme Court in Writ Petition (Cr.) 103/09

titled as Himanshu Kumar & Ors vs. State of

Chattishgarh, was received in my office titled as

Himanshu Kr. & Ors.

Before that, I had received a telephonic call from Mr.

T.Sivadasan, Registrar (Judicial), informing me about

the order passed by the Hon’ble Supreme Court.

At about 5 pm., the file of the writ petition was

received. Thereafter corrigendum of this order, wherein,

name of petitioner No.8 was mentioned at page 2 of the

order was also received. At about 6 pm the petitioners

had reached my court No.301. The counsel for the

parties aforementioned were also present. I have

talked to the Counsels for the parties as well as

petitioner No.1 in the court and have explained that I

shall be talking to each of the petitioners. Except the

petitioners, all the persons including the counsel were

requested to move out of the court room. I got down

from the dias and talked to the petitioners through

petitioner No.1 Himanshu Kumar. I tried to make

petitioners comfortable and served them with tea and

biscuits. I have enquired from them if there was any

fear or pressure from any quarter which they have

negatived. I have told the petitioners present that I

would be calling them one by one for the purpose of

recording their statements in the adjoining Room

No.302 in Tis Hazari Court.

In the first instance, petitioner No.2 Shri Soyam Rama

has been called. Apart from the abovenamed Counsel

for the parties, petitioner No.1 Shri Himanshu Kumar

and interpreter Shri Mohan Sinha have also been

called in room No.302. Petitioner No.2 has been made

to sit in the middle of the petitioner No.1 and Shri

Mohan Sinha, the interpreters.

Let statement of Sh. Soyam Rama be recorded.

Question: What is your name ?

Ans. : My name is Soyam Rama

Question: Where do you stay?

Ans. I am resident of village Gompad.

Q. Do you have any proof of identity:

Ans. I do not have one.

Q. Do you know for what purpose you have been

brought here ?

A. The persons from our family have died and

therefore, I have come.

Q. Has anybody put any pressure upon you to make

any particular statement ? Has anybody terrorized

you?

Ans. Nobody has pressurized or terrorized me.

Q. Do you want to make a statement of your own free

will ?

A. Yes.

(I am satisfied that Shri Soyam Rama is not under any

pressure coercion or terror to make the statement.)

I feel that the statement being made by him is out

of his free will.

Let the statement be recorded on oath. The oath

be also administered to both the interpreters.

Statement of Shri Soyam Rama s/o Shri Soyam Kanna,

aged 38 years r/o village Gopade, on S.A. (through

interpreter Shri Mohan Sinha, in presence of petitioner

Himanshu Kumar. Both the interpreters have also

stated on oath that whatever shall be asked from the

witness and his answers shall be interpreted correctly

& truly).

On. 1.10.2009, there was a firing in the house of my

paternal uncle Madhvi Bajaar. In the firing, my

paternal uncle Madvi Bajaar and paternal aunt Smt.

Madvi Sudvi Subi and niece Madvi Muddi and Smt.

Kartan Katti were killed. One more person, whose

name I cannot tell, was also killed in the firing. We had

run away from the spot and therefore, could not see as

to who had opened fire.

Question: Are you sure that this firing had taken place

on 1.10.2009 or before that ?

Ans. I am sure, the firing had taken place on

01.10.2009.

Some other persons were also killed, but not in my

presence.

Question: Can you say, if any other weapon was used

in the above mentioned killing or it was only by

bullets ?

Ans. In the first instance, the above named four

persons were stabbed with knife and thereafter,

they were shot with bullets.

Question: Can you tell the description of the firearm if

the same was a big gun or a pistol ?

Ans. I cannot tell the same. I heard the shot and then

ran away.

Question: Who had caused the said injury and who

had opened the fire ?

Ans. The persons who stabbed the above stated

persons and opened fire, had come from the

Jungle. I ran away after the above stated persons

were stabbed and fire was opened.

Question: Would you be in a position to identify the

assailants.

Ans. I would not be in a position to identify them.

Question: Do you want to say anything else.

Ans. I do not want to say anything further.

Left thumb impression of Sd/-

Soyam Rama District Judge-I/Delhi

15.02.2010

Sh. G.P.MITTAL

District Judge-I & Sessions Judge

(We have interpreted the questions and answers truly

and have gone through the statement of the witness

recorded above.

The same is correct

Sd/- Sd/-

(Himanshu Kumar) D.J.,-1/15-2-2010

Sh. G.P.MITTAL

District Judge-I & Sessions Judge

Sd/-

(Mohan Sinha)”

(emphasis supplied)

60. All other statements of the rest of the writ petitioners are

on the same line and footing.

61. When we called upon Mr. Gonsalves to make us

understand as to why his clients had to make such statements

before the Judicial Officer, a very curious reply came from Mr.

Gonsalves. According to Mr. Gonsalves, the entire mode and

manner in which the statements were recorded by the Judicial

Officer of the rank of District and Sessions Judge was absolutely

incorrect. According to the learned senior counsel, specific

questions ought to have been put by the Judicial Officer to each

of the writ petitioners while recording their statements in

accordance with the directions issued by this Court vide order

dated 15th February 2010 referred to above.

62. We are afraid, we are not in a position to accept such

submission after a period of almost 12 years. The statements we

are referring to recorded by the Judicial Officer are of the year

2010. Not once in the last 12 years any grievance has been made

either orally or in writing before this Court as regards the mode

and manner of recording of the statements. It is for the first time

in 12 years that such a grievance has been made. Had the writ

petitioners raised such a plea at the appropriate time and

contemporaneously as regards the mode and manner of the

recording of the statements, this Court would have passed

necessary orders asking the Judicial Officer to record the further

statements in a particular manner. It is too late in the day now

to cast any insinuations or aspersions against the Judicial

Officer of the rank of District and Sessions Judge, who had acted

under the directions of this Court.

63. What we are trying to convey is that the statements of the

petitioners nos.2 to 13 recorded before the Judicial Officer

demolishes the entire case put up by the petitioner no.1, who is

running an NGO.

64. It appears from the materials on record that all those

persons who have been arraigned as accused and against whom

charge sheets have been filed are absconding. It is now for the

concerned trial court to take appropriate steps in this regard. If

the persons named as accused in the charge sheets are

absconding, then it is expected of the investigating agency to

take necessary steps for their arrest. In any view of the matter, it

is now for the trial court to do the needful in accordance with

law.

65. In the overall view of the matter, we have reached to the

conclusion that no case, worth the name, has been made out by

the writ petitioners for any further investigation much less

through an independent agency to be appointed by this Court. In

the facts of the above case, we are of the view that the conditions

laid down by this Court in the case of Committee for Protection

of Democratic Rights, West Bengal (supra) quoted earlier are

not fulfilled.

66. The writ petition accordingly fails and is hereby rejected

with exemplary costs of Rs. 5,00,000/- (Rupees Five Lakh Only).

The requisite amount towards the costs shall be paid by the

petitioner no.1 viz. Himanshu Kumar. The petitioner no.1 shall

deposit the amount with the Supreme Court Legal Services

Authority within a period of 4 weeks from today; failing which, it

shall be open for the authority concerned to take appropriate

steps in accordance with law for the recovery of the requisite

amount. Pending application, if any, stands disposed of.

INTERLOCUTORY APPLICATION NO. 52290 OF 2022

67. This is an application at the instance of the Union of India

with the following prayers :

“(a) Hold the petitioners guilty of leveling false

charges of offence and of giving false and fabricated

evidence before this Hon’ble Court with an intention to

procure conviction for a capital offence or for life

imprisonment against the personnel of security forces

and to screen off the actual offenders of Left Wing

(Naxal) terrorism;

(b) Pass an order directing CBI/NIA or any other

central investigating agency or any other monitoring

committee, as this Hon’ble Court deems fit and proper,

to register an FIR and conduct an in-depth

investigation to identify the individuals/organizations,

who have been conspiring, abetting and facilitating

filing of petitions premised on false and fabricated

evidence before this Hon’ble Court as well as before

the Hon’ble High Courts with a motive to either deter

the security agencies to act against the Left Wing

(Naxal) militia by imputing false charges on them or to

screen off the Left Wing (Naxal) militia from being

brought to justice by creating a false narrative of

victimization before the Hon’ble Courts;

Petitioners and other person/s responsible for the

aforesaid acts of perjury;

(d) Pass any other just and reasonable orders to

meet the ends of justice.”

68. We have closely looked into the averments made in the

Interlocutory Application.

69. Mr. Tushar Mehta, the learned Solicitor General has

pressed this application very hard.

70. Although no particular nomenclature has been given to

this application, yet it is apparent that the same is under Section

340 of the Code of Criminal Procedure, 1973 (for short, “the

CrPC”) read with Section 195 of the CrPC. The Union of India

wants this Court to initiate appropriate proceedings against the

writ petitioners for the offence of perjury punishable under

Section 193 of the IPC. The Union of India vehemently asserts

that the writ petitioners are guilty of levelling false charges of

various offences and could be said to have fabricated evidence

before this Court in a judicial proceedings. The Union of India

asserts that the writ petitioner no.1 has affirmed the false

averments made in the writ petition on oath. He could be said to

have made a false affidavit. The making of false affidavit and

giving false evidence comes within the purview of Section 191 of

the IPC.

71. Before we proceed to examine this application filed by the

Union of India, we must look into few averments made therein :

“4. Shockingly, in the petition, the petitioner had

portrayed the incidents of 17.9.2009 and 1.10.2009,

as an act of not restricted to extra judicial killings, but

had sought to portray such acts as act of

barbarianism committed by security forces, where the.

special operation teams of police and paramilitary

forces were alleged to have indulged into torturing,

looting and outraging the modesty of family members

of those encountered. The Petitioners had, thus, on

affidavit, narrated incidents alleging it to be gruesome

killings and massacres of innocent tribal villagers on

17.9.2009 and 1.10.2009, in the petition.

It is pertinent to mention here that the acts of torture

and killings of the villagers have been pleaded to be of

such beastly and horrific nature, so as to invoke and

instigate an instantaneous response of outrage by this

Hon’ble Court, undeniably leading to grant of

relief/interim relief as prayed in the petition. In pith

and substance, the reliefs prayed were of the nature

where operations of security forces were sought to be

halted and Left Wing Extremists were sought to be

granted legal protection under the narrative of

victimization.

8. It is respectfully submitted that a bare perusal of

the recordings etc. submitted by the Ld. District Judge

before this Hon'ble Court reveals that all the

averments made by the petitioner in the petition were

ex-facie false and fabricated and it is now clear that

all the said deceitful averments were made by the

petitioner with malicious and audacious attempt to

mislead this Hon'ble court and to obtain orders from

this court by playing fraud on its conscience and

magnanimity.

9. In the respectful submission of the applicant, it is

apparent that the said insolent false averments were

made with a malafide objective to change the

narrative of the incident and with malicious designs

i.e. to portray the dreaded Left Wing Extremists

(Naxals), who were waging an armed rebellion

against the security forces of the country and

threatening the sovereignty and integrity of the

country, as innocent tribal victims being massacred by

the security forces.

10. This was done with a deceitful design to instigate

an instantaneous response of outrage by this Hon’ble

Court and mislead it to pass adverse orders against

security forces under an erroneous assumption of

facts causing an adverse and deterrent effect on the

operations and morale of the security forces. It is

submitted that the modus adopted in the instant case,

has over the period of time, become a norm where

false petitions are filed by individuals and

organization who are either supporters of Left Wing

Extremism or benefit, financially and politically, from

Left Wing Extremist activities and protective orders

are obtained from the courts by playing fraud. Further

absence of a stern action being taken against them for

playing fraud on the court has embolden them who

have now made a practice of filing such false and

vexatious petitions based on self-serving/selfgenerated fact finding reports.

11. Aposteriori, it has become clear that this false

narrative of a massacre of innocent tribals by security

forces was created to somehow achieve immediate

cessation of advancement of the security forces

against the cornered armed Left Wing Extremists. The

said object was sought to be achieved, and was in

fact achieved by the petitioner, by misleading this

Hon'ble Court and by seeking adverse orders against

security forces by portraying false facts/ picture

before the court and by playing fraud on this Hon'ble

Court.

12. In addition to the same the purpose and motive of

the present petition was also to derail the ongoing

efforts of security forces in neutralizing the Left Wing

Extremism movement and the armed Left Wing

Extremists; to take away the dignity and credibility of

security forces and the attempts made by them to

neutralize the armed rebellion by Left Wing

Extremists; to lower the moral of the security agencies

by portraying them as demons and national villains,

i.e. slayers of innocent tribal people; and to foist false

cases on them so that in future the said false cases

acts as a deterrent and chilling factor for the rest of

the members of the armed forces in planning or

participating in a similar operations. It is submitted

that all this was done before the highest court of the

country and at the altar of the national security. This

was a fraud played on the constitutional remedies

and an abuse thereof of the highest order.

13. In effect in the respectful submission of the

applicant/UOI, it is now also apparent that the

present ex-facie false and fraudulent petition was

filed to deceit this Hon'ble court and to provide a legal

protective shield to the members of Left Wing

Extremist outfits. In the respectful submission of the

applicant the present petition is nothing but a

subterfuge and a part of the conspiracy to cover the

offence committed by the Left Wing Extremists and to

facilitate unhindered future operations by weakening

the security forces which is the only challenge

deterring their intentions and operations. The

petitioners, in the respectful submission of the

applicant, by preferring the instant deceitful petition,

have not only conspired and abetted the

commissioning of the crime but have also conspired

and abetted in covering up the crime and screening

the offenders/perpetrators of Left Wing (Naxal)

terrorism.

14. It is submitted that scurrilous allegations made

against the security personnel of the country have

nevertheless has brought about a chilling effect of

demoralizing the esprit de corps and self-esteem of the

members of the forces, which has been since then

acted against national interests.

15. In this perspective, when it is manifested that the

present petition was nothing but a fraud on this

Hon'ble court, where orders were sought to be

obtained from this Hon'ble court through deceitful

designs/fabricated and false assertions, it has

become incumbent and imperative, both in the interest

of justice, as well as, in the interest of security of the

nation that the people and organizations involved in

playing fraud on constitutional remedies and on

whose instance false affidavits, pleadings and

evidence have been submitted before this Hon'ble

Court are identified and appropriate criminal action is

initiated against them. This is necessary to serve as a

deterrent against repeating such modus.

22. It is submitted that in the process, the security

personal have been made scapegoats to bear the

brunt of false accusations. It is an admitted fact that

rarely does any individual security personal comes

forward to contest such allegations, since their service

protocol deters them from doing so. Unwittingly and

unfairly, they become easy targets of such

accusations leading to a resigned acceptance of such

blemishes as an incident of duty. Such an

environment for the functioning of security apparatus

in any country is extremely undesirable and in fact

dangerous for the security of the nation and its

people. The trust reposed by the society in the police

and other security personal is coveted and necessary

for the smooth functioning of any administration. The

law enforcement machinery is not and cannot appear

to be blemished. Moreover, it is also a fact that

wherever any such machinery is found to be indulging

in illegal or irregular activities, this Hon’ble Court and

other courts have been prompt and undeterred in

taking action against such personal. However, there is

an expedient and urgent need to guard against

irresponsible, unjustified and by far, brazen false

accusations against the security personal.”

POSITION OF LAW :

“Indian Penal Code

Section 191. Giving false evidence.—Whoever, being

legally bound by an oath or by an express provision of law

to state the truth, or being bound by law to make a

declaration upon any subject, makes any statement which is

false, and which he either knows or believes to be false or

does not believe to be true, is said to give false evidence.

Section 192. Fabricating false evidence.—Whoever

causes any circumstance to exist or makes any false entry

in any book or record, or electronic record or makes any

document containing a false statement, intending that such

circumstance, false entry or false statement may appear in

evidence in a judicial proceeding, or in a proceeding taken

by law before a public servant as such, or before an

arbitrator, and that such circumstance, false entry or false

statement, so appearing in evidence, may cause any person

who in such proceeding is to form an opinion upon the

evidence, to entertain an erroneous opinion touching any

point material to the result of such proceeding, is said to “to

fabricate false evidence”.

Section 193. Punishment for false evidence. - Whoever

intentionally gives false evidence in any stage of a judicial

proceeding, or fabricates false evidence for the purpose of

being used in any stage of a judicial proceeding, shall be

punished with imprisonment of either description for a term

which may extend to seven years, and shall also be liable to

fine, and whoever intentionally gives or fabricates false

evidence in any other case, shall be punished with

imprisonment of either description for a term which may

extend to three years, and shall also be liable to fine.”

Code of Criminal Procedure, 1973

Section 195. Prosecution for contempt of lawful

authority of public servants, for offences against public

justice and for offences relating to documents given in

evidence.—(1) No Court shall take cognizance-

(a) ... .... .... …

(b) (i) of any offence punishable under any of the following

sections of the Indian Penal Code (45 of 1860), namely,

sections 193 to 196 (both inclusive), 199, 200, 205 to 211

(both inclusive) and 228, when such offence is alleged to

have been committed in, or in relation to, any proceeding in

any court, or

(ii) of any offence described in section 463, or punishable

under section 471, section 475 or section 476, of the said

Code, when such offence is alleged to have been committed

in respect of a document produced or given in evidence in a

proceeding in any court, or

(iii) of any criminal conspiracy to commit, or attempt to

commit, or the abetment of, any offence specified in subclause (i) or sub-clause (ii),

except on the complaint in writing of that Court, or by such

officer of the Court as that Court may authorize in writing in

this behalf, or of some other Court to which that Court is

subordinate.

Section 340. Procedure in cases mentioned in section 195. —

(1) When upon an application made to it in this behalf or

otherwise, any Court is of opinion that it is expedient in the

interest of justice that an inquiry should be made into any

offence referred to in clause (b) of sub-section (1) of section

195, which appears to have been committed in or in relation

to a proceeding in that Court or, as the case may be, in

respect of a document produced or given in evidence in a

proceeding in that Court, such Court may, after such

preliminary inquiry, if any, as it thinks necessary,-

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

jurisdiction;

(d) take sufficient security for the appearance for the

accused before such Magistrate, or if the alleged offence is

non-bailable and the Court thinks it necessary so to do,

send the accused in custody to such Magistrate; and

(e) bind over any person to appear and given evidence before

such Magistrate;

(2) The power conferred on a Court by sub-section (1) in

respect of an offence may, in any case where that Court has

neither made a complaint under sub-section (1) in respect of

that offence nor rejected an application for the making of

such complaint, be exercised by the Court to which such

former Court is subordinate within the meaning of subsection (4) of Section 195.

(3) A complaint made under this section shall be signed, -

(a) where the Court making the complaint is a High Court, by

such officer of the Court as the court may appoint;

(b) in any other case, by the presiding officer of the court or

by such officer of the Court as the Court may authorise in

writing in this behalf.

(4) In this section, “Court” has the same meaning as in

section 195.”

72. Thus, from the above, it follows that there are two

conditions, on fulfillment of which, a complaint can be filed

against a person who has given a false affidavit or evidence in a

proceeding before a court. The first condition being that a person

has given a false affidavit in a proceeding before the court and,

secondly, in the opinion of the court it is expedient in the

interest of justice to make an inquiry against such a person in

relation to the offence committed by him.

73. In K. Karunakaran v. T.V. Eachara Warrier and

another, reported in AIR 1978 SC 290, this Court held in

paragraphs 19, 20 and 21 as under :

“19. Chapter XXVI of the Code of Criminal Procedure

1973 makes provisions as to offences affecting the

administration of justice. Sec. 340, Cr.P.C, with which

the chapter opens is the equivalent of the old Section

476 of the Criminal Procedure Code, 1898. The

chapter has undergone one significant change with

regard to the provision of appeal which was there

under the old section 476-B, Cr.P.C. Under Section

476-B, Cr.P.C. (old) there was a right of appeal from

the order of a subordinate court to the superior court

to which appeals ordinarily lay from an appealable

decree or sentence of such former court. Under Section

476-B (old) there would have ordinarily been a right of

appeal against the order of the High Court to this

Court. There is, however, a distinct departure from

that position under Section 341, Cr.P.C. (new) with

regard to an appeal against the order of a High Court

under Section 340 to this Court. An order of the High

Court made under sub-section (1) or sub-section (2) of

Section 340 is specifically excluded for the purpose of

appeal to the superior court under Section 341 (1),

Cr.P.C (new). This is, therefore, a new restriction in

the way of the appellant when he approaches this

Court under Article 136 of the Constitution.

20. Whether, suo motu, or on an application by a

party under Section 340 (1), Cr.P.C., a court having

been already seized of a matter may be tentatively of

opinion that further action against some party or

witness may be necessary in the interest of justice. In

a proceeding under Section 340 (1), Cr.P.C, the

reasons recorded in the principal case, in which a

false statement has been made, have a great bearing

and indeed action is taken having regard to the

overall opinion formed by the court in the earlier

proceedings.

21. At an enquiry held by the court under Section 340

(1), Cr.P.C, irrespective of the result of the main case,

the only question is whether a prima facie case is

made out which, if unrebutted, may have a

reasonable likelihood to establish the specified offence

and whether it is also expedient in the interest of

justice to take such action.”

74. In Baban Singh and another v. Jagdish Singh and

others, reported in AIR 1967 SC 68, this Court observed the

following in paragraph 7 as under :

“7. The matter has to be considered from three stand

points. Does the swearing of the false affidavits

amount to an offence under S.199, Indian Penal Code

or under either Ss.191 or 192, Indian Penal Code? If

it comes under the two latter sections, the present

prosecution cannot be sustained, Section 199 deals

with a declaration and does not state that the

declaration must be on oath. The only condition

necessary is that the declaration must be capable of

being used as evidence and which any Court of justice

or any public servant or other person, is bound or

authorized by law to receive as evidence. Section 191

deals with evidence on oath and S.192 with

fabricating false evidence. If we consider this matter

from the standpoint of S.191, Indian Penal Code the

offence is constituted by swearing falsely when one is

bound by oath to state the truth because an affidavit

is a declaration made under an oath. The definition of

the offence of giving false evidence thus applies to the

affidavits. The offence may also fall within S.192. It

lays down inter alia that a person is said to fabricate

false evidence if he makes a document containing a

false statement intending that such false statement

may appear in evidence in a judicial proceeding and

so appearing in evidence may cause any person who,

in such proceeding is to form an opinion upon the

evidence, to entertain an erroneous opinion touching

any point material to the result of such proceeding.

When Baban Singh and Dharichhan Kuer made

declarations in their affidavits which were tendered in

the High Court to be taken into consideration, they

intended the statements to appear in evidence in a

judicial proceeding, and so appearing, to cause the

Court to entertain an erroneous opinion regarding the

compromise. In this way their offence came within the

words of Ss. 191/192 rather than S.199 of the Indian

Penal Code. They were thus prima facie guilty of an

offence of giving false evidence or of fabricating false

evidence for the purpose of being used in a judicial

proceeding.”

75. The law under Section 340 of the CrPC on initiating

proceedings has been laid down in several of our judgments.

Thus in Chajoo Ram v. Radhey Shyam, (1971) 1 SCC 774, this

Court, in para 7, stated as under :

“7. … No doubt giving of false evidence and filing false

affidavits is an evil which must be effectively curbed

with a strong hand but to start prosecution for perjury

too readily and too frequently without due care and

caution and on inconclusive and doubtful material

defeats its very purpose. Prosecution should be

ordered when it is considered expedient in the

interests of justice to punish the delinquent and not

merely because there is some inaccuracy in the

statement which may be innocent or immaterial. There

must be prima facie case of deliberate falsehood on a

matter of substance and the court should be satisfied

that there is reasonable foundation for the charge.”

76. Similarly in Chandrapal Singh and Others v. Maharaj

Singh and Another, (1982) 1 SCC 466, this Court, in para 14,

stated as under :

“14. That leaves for our consideration the alleged

offence under Section 199. Section 199 provides

punishment for making a false statement in a

declaration which is by law receivable in evidence. We

will assume that the affidavits filed in a proceeding

for allotment of premises before the Rent Control

Officer are receivable as evidence. It is complained

that certain averments in these affidavits are false

though no specific averment is singled out for this

purpose in the complaint. When it is alleged that a

false statement has been made in a declaration which

is receivable as evidence in any Court of Justice or

before any public servant or other person, the

statement alleged to be false has to be set out and its

alleged falsity with reference to the truth found in

some document has to be referred to pointing out that

the two situations cannot co-exist, both being

attributable to the same person and, therefore, one to

his knowledge must be false. Rival contentions set out

in affidavits accepted or rejected by courts with

reference to onus probandi do not furnish foundation

for a charge under Section 199, I.P.C. To illustrate the

point, appellant-1 Chandrapal Singh alleged that he

was in possession of one room forming part of

premises No. 385/2. The learned Additional District

Judge after scrutinising all rival affidavits did not

accept this contention. It thereby does not become

false. The only inference is that the statement made

by Chandrapal Singh did not inspire confidence

looking to other relevant evidence in the case.

Acceptance or rejection of evidence by itself is not a

sufficient yardstick to dub the one rejected as false.

Falsity can be alleged when truth stands out glaringly

and to the knowledge of the person who is making the

false statement. Day in and day out, in courts

averments made by one set of witnesses are accepted

and the counter averments are rejected. If in all such

cases complaints under Section 199, I.P.C. are to be

filed not only there will open up floodgates of litigation

but it would unquestionably be an abuse of the

process of the Court. The learned Counsel for the

respondents told us that a tendency to perjure is very

much on the increase and unless by firm action courts

do not put their foot down heavily upon such persons

the whole judicial process would come to ridicule. We

see some force in the submission but it is equally true

that chagrined and frustrated litigants should not be

permitted to give vent to their frustration by cheaply

invoking jurisdiction of the criminal court. Complainant

herein is an Advocate. He lost in both courts in the

rent control proceedings and has now rushed to the

criminal court. This itself speaks volumes. Add to this

the fact that another suit between the parties was

pending from 1975. The conclusion is inescapable that

invoking the jurisdiction of the criminal court in this

background is an abuse of the process of law and the

High Court rather glossed over this important fact

while declining to exercise its power under Section

482, Cr. P.C.”

77. Both the aforesaid judgments were referred to and relied

upon with approval in R.S. Sujatha v. State of Karnataka

and Others, (2011) 5 SCC 689. This Court, after setting down

the law laid down in these two judgments concluded:

“18. Thus, from the above, it is evident that the

inquiry/contempt proceedings should be initiated by

the court in exceptional circumstances where the court

is of the opinion that perjury has been committed by a

party deliberately to have some beneficial order from

the court. There must be grounds of a nature higher

than mere surmise or suspicion for initiating such

proceedings. There must be distinct evidence of the

commission of an offence by such a person as mere

suspicion cannot bring home the charge of perjury.

More so, the court has also to determine as on facts,

whether it is expedient in the interest of justice to

inquire into the offence which appears to have been

committed.”

78. It is clear through from a reading of the aforesaid

judgments that there should be something deliberate - a

statement should be made deliberately and consciously which is

found to be false as a result of comparing it with unimpeachable

evidence, documentary or otherwise.

79. It is true that an affidavit is ‘evidence’ within the meaning

of Section 191 of the IPC and a person swearing to a false

affidavit is guilty of perjury. But the matter does not rest here.

Before initiating the proceedings for perjury, the court concerned

has to consider whether it would be expedient in the interest of

justice to sanction such prosecution. What the courts have to

see at this stage is whether there is evidence in support of the

allegations made by the Union of India (respondent herein) to

justify the initiation of proceedings against the writ petitioners,

more particularly, the writ petitioner no.1 herein who had filed

the affidavit on behalf of himself and the other writ petitioners

and not whether the evidence is sufficient to warrant his

conviction. However, this does not mean that the court should

not prima facie be of the opinion that there are sufficient and

reasonable grounds for setting the machinery of criminal law in

motion against the accused. As noted above, the Court has

further to see that the false statement was deliberate and

conscious and the conviction is reasonably probable or likely. In

other words, before sanctioning the prosecution there must be a

prima facie case of a falsehood on a matter of substance and the

court should be satisfied that there is reasonable foundation for

the charge. (see S.P. Kohli v. High Court of Punjab &

Haryana, AIR 1978 SC 1753)

80. This Court, in the case of Muthu Karuppan,

Commissioner of Police, Chennai v. Parithi Ilamvazhuthi

and another, reported in (2011) 5 SCC 496, has held as under :

“15. Giving false evidence by filing false affidavit is an

evil which must be effectively curbed with a strong

hand. Prosecution should be ordered when it is

considered expedient in the interest of justice to

punish the delinquent, but there must be a prima facie

case of "deliberate falsehood" on a matter of

substance and the court should be satisfied that there

is a reasonable foundation for the charge.

16. In a series of decisions, this Court held that the

enquiry/contempt proceedings should be initiated by

the court in exceptional circumstances where the court

is of the opinion that perjury has been committed by a

party deliberately to have some beneficial order from

the court. There must be grounds of a nature higher

than mere surmise or suspicion for initiating such

proceedings. There must be distinct evidence of the

commission of an offence by such a person as mere

suspicion cannot bring home the charge of making

false statement, more so, the court has to determine

as on facts whether it is expedient in the interest of

justice to enquire into offence which appears to have

been committed.”

81. Section 340 of the CrPC came up for the consideration

before a three-Judge Bench of this Court in the case of Pritish v.

State of Maharashtra, (2002) 1 SCC 253. In Pritish (supra),

this Court was called upon to consider, whether it is mandatory

on the part of the court to make a preliminary inquiry under

Section 340 of the CrPC before filing a complaint under Section

195 of the CrPC and further, whether the court is required to

afford an opportunity of hearing to the person against whom a

complaint is filed before a Magistrate for initiating prosecution

proceedings. This Court took the view that an opportunity to the

would be accused before the filing of the complaint was not

mandatory, and observed that the preliminary inquiry was itself

not mandatory. The Court observed thus :

“9. Reading of the sub-section makes it clear that the

hub of this provision is formation of an opinion by the

court (before which proceedings were to be held) that

it is expedient in the interest of justice that an inquiry

should be made into an offence which appears to

have been committed. In order to form such opinion

the court is empowered to hold a preliminary inquiry.

It is not peremptory that such preliminary inquiry

should be held. Even without such preliminary inquiry

the court can form such an opinion when it appears to

the court that an offence has been committed in

relation to a proceeding in that court. It is important to

notice that even when the court forms such an opinion

it is not mandatory that the court should make a

complaint. This subsection has conferred a power on

the court to do so. It does not mean that the court

should, as a matter of course, make a complaint. But

once the court decides to do so, then the court should

make a finding to the effect that on the fact situation it

is expedient in the interest of justice that the offence

should further be probed into. If the court finds it

necessary to conduct a preliminary inquiry to reach

such a finding it is always open to the court to do so,

though absence of any such preliminary inquiry would

not vitiate a finding reached by the court regarding its

opinion. It should again be remembered that the

preliminary inquiry contemplated in the sub-section is

not for finding whether any particular person is guilty

or not. Far from that, the purpose of preliminary

inquiry, even if the court opts to conduct it, is only to

decide whether it is expedient in the interest of justice

to inquire into the offence which appears to have been

committed.

10. “Inquiry” is defined in Section 2(g) of the Code as

“every inquiry, other than a trial, conducted under this

Code by a Magistrate or court”. It refers to the pre-trial

inquiry, and in the present context it means the

inquiry to be conducted by the Magistrate. Once the

court which forms an opinion, whether it is after

conducting the preliminary inquiry or not, that it is

expedient in the interest of justice that an inquiry

should be made into any offence the said court has to

make a complaint in writing to the Magistrate of the

First Class concerned. As the offences involved are all

falling within the purview of “warrant case” [as

defined in Section 2(x)] of the Code the Magistrate

concerned has to follow the procedure prescribed in

Chapter XIX of the Code. In this context we may point

out that Section 343 of the Code specifies that the

Magistrate to whom the complaint is made under

Section 340 shall proceed to deal with the case as if it

were instituted on a police report. That being the

position, the Magistrate on receiving the complaint

shall proceed under Section 238 to Section 243 of the

Code.

11. Section 238 of the Code says that the Magistrate

shall at the outset satisfy himself that copies of all the

relevant documents have been supplied to the

accused. Section 239 enjoins on the Magistrate to

consider the complaint and the documents sent with

it. He may also make such examination of the

accused, as he thinks necessary. Then the Magistrate

has to hear both the prosecution and the accused to

consider whether the allegations against the accused

are groundless. If he finds the allegations to be

groundless he has to discharge the accused at that

stage by recording his reasons thereof. Section 240 of

the Code says that if the Magistrate is of opinion, in

the aforesaid inquiry, that there is ground for

presuming that the accused has committed the offence

he has to frame a charge in writing against the

accused. Such charge shall then be read and

explained to the accused and he shall be asked

whether he pleads guilty of the offence charged or not.

If he pleads not guilty then the Magistrate has to

proceed to conduct the trial. Until then the inquiry

continues before the Magistrate.

12. Thus, the person against whom the complaint is

made has a legal right to be heard whether he should

be tried for the offence or not, but such a legal right is

envisaged only when the Magistrate calls the accused

to appear before him. The person concerned has then

the right to participate in the pre-trial inquiry

envisaged in Section 239 of the Code. It is open to him

to satisfy the Magistrate that the allegations against

him are groundless and that he is entitled to be

discharged.

13. The scheme delineated above would clearly show

that there is no statutory requirement to afford an

opportunity of hearing to the persons against whom

that court might file a complaint before the Magistrate

for initiating prosecution proceedings. Learned counsel

for the appellant contended that even if there is no

specific statutory provision for affording such an

opportunity during the preliminary inquiry stage, the

fact that an appeal is provided in Section 341 of the

Code, to any person aggrieved by the order, is

indicative of his right to participate in such

preliminary inquiry.

14. Section 341 of the Code confers a power on the

party on whose application the court has decided or

not decided to make a complaint, as well as the party

against whom it is decided to make such complaint, to

file an appeal to the court to which the former court is

subordinate. But the mere fact that such an appeal is

provided, it is not a premise for concluding that the

court is under a legal obligation to afford an

opportunity (to the persons against whom the

complaint would be made) to be heard prior to making

the complaint. There are other provisions in the Code

for reaching conclusions whether a person should be

arrayed as accused in criminal proceedings or not, but

in most of those proceedings there is no legal

obligation cast on the court or the authorities

concerned, to afford an opportunity of hearing to the

would-be accused. In any event the appellant has

already availed of the opportunity of the provisions of

Section 341 of the Code by filing the appeal before the

High Court as stated earlier.

x x x x

18. We are unable to agree with the said view of the

learned Single Judge as the same was taken under

the impression that a decision to order inquiry into the

offence itself would prima facie amount to holding

him, if not guilty, very near to a finding of his guilt. We

have pointed out earlier that the purpose of conducting

preliminary inquiry is not for that purpose at all. The

would-be accused is not necessary for the court to

decide the question of expediency in the interest of

justice that an inquiry should be held. We have come

across decisions of some other High Courts which

held the view that the persons against whom

proceedings were instituted have no such right to

participate in the preliminary inquiry (vide

M.Muthuswamy v. Special Police Establishment [1985

Cri LJ 420 (Mad)]).”

(emphasis supplied)

82. In M.S. Sheriff and Another v. State of Madras and

Others, AIR 1954 SC 397, a Constitution Bench of this Court

said that no expression on the guilt or innocence of persons

should be made by court while passing an order under Section

340 of CrPC. An exercise at that stage is not for finding whether

any offence was committed or who committed the same. The

scope is confined to see whether the court could then decide on

the materials available that the matter requires inquiry by a

criminal court and that it is expedient in the interest of justice to

have it inquired into. This decision of the Constitution Bench

has also been followed in Pritish (supra) observing that the court,

when decides to make a complaint under Section 340, is not to

record finding of guilt or innocence of person against whom

complaint is to be made before a Magistrate.

83. We may also refer and reply upon the decision of this Court

in the case of Aarish Asgar Qureshi v. Fareed Ahmed Qureshi

and another, reported in (2019) 18 SCC 172, wherein this

Court discussed and explained the necessary requirements for

the purpose of initiation of proceeding under Section 340 read

with Section 195(1)(b) of the CrPC. This Court laid much

emphasis on two words namely “deliberate” and “intentional”.

This Court talked about the requirement of impeachable

evidence for the purpose of initiation of proceedings. In other

words, this Court took the view that a statement should be made

deliberately and consciously and the same should be found to be

false as a result of comparing it with unimpeachable evidence,

documentary or otherwise. We quote the relevant observations

made by this Court:-

“10. It is clear therefore from a reading of these

judgments that there should be something deliberate -

a statement should be made deliberately and

consciously which is found to be false as a result of

comparing it with unimpeachable evidence,

documentary or otherwise. In the facts of the present

case, it is clear that the statement made in the

anticipatory bail application cannot be tested against

unimpeachable evidence as evidence has not yet been

led. Moreover, the report dated 12.11.2011 being a

report, which is in the nature of a preliminary

investigation report by the investigating officer filed

only two days after the F.I.R. is lodged, can in no

circumstances be regarded as unimpeachable evidence

contrary to the statements that have been made in the

anticipatory bail application. …”

(emphasis supplied)

84. However, in the subsequent decision in the case of Sharad

Pawar v. Jagmohan Dalmiya, (2010) 15 SCC 290, while

dealing with a similar question as above, a three-Judge Bench of

this Court went on to observe as follows :

“7. Having heard the learned Senior Counsel for both

sides and after perusal of the record, we are of the

considered view that before giving a direction to file

complaint against Defendants 1 to 6, it was necessary

for the learned Single Judge to conduct a preliminary

enquiry as contemplated under Section 340 CrPC and

also to afford an opportunity of being heard to the

defendants, which was admittedly not done.

8. We, therefore, in the interest of justice, allow these

appeals, set aside the impugned order of the High

Court passed in the application filed by Respondent 1-

plaintiff under Section 340 CrPC and remit the matter

to the learned Single Judge to decide the application

under Section 340 CrPC afresh in accordance with law,

and after affording reasonable opportunity of being

heard to the defendants, against whom the learned

Single Judge ordered enquiry.”

85. Later, the judgment in Pritish (supra) came to be relied

upon by a two Judges Bench of this Court in Amarsang Nathaji

(supra). While dealing with the propriety of the procedure

adopted by the court making a complaint under Section 340 of

the CrPC, the Bench in Amarsang Nathaji observed as follows:

“7. In the process of formation of opinion by the court

that it is expedient in the interests of justice that an

inquiry should be made into, the requirement should

only be to have a prima facie satisfaction of the

offence which appears to have been committed. It is

open to the court to hold a preliminary inquiry though

it is not mandatory. In case, the court is otherwise in a

position to form such an opinion, that it appears to the

court that an offence as referred to under Section 340

CrPC has been committed, the court may dispense

with the preliminary inquiry. Even after forming an

opinion as to the offence which appears to have been

committed also, it is not mandatory that a complaint

should be filed as a matter of course. (See Pritish v.

State of Maharashtra [Pritish v. State of Maharashtra,

(2002) 1 SCC 253)

86. The conflict between the two decisions of this Court of

equal strength, i.e. Pritish (supra) and Sharad Pawar (supra),

was taken notice of by this Court in the case of the State of

Punjab v. Jasbir Singh, (2020) 12 SCC 96. A Bench of two

Judges of this Court ultimately thought fit to refer the question

to a Larger Bench. The Court observed as under :

“14. In any event, given that the decision of the

three-Judge Bench in Sharad Pawar (supra) did not

assign any reason as to why it was departing from

the opinion expressed by a Coordinate Bench in

Pritish (supra) regarding the necessity of a preliminary

inquiry under Section 340 of the CrPC, as also the

observations made by a Constitution Bench of this

Court in Iqbal Singh Marwah (supra), we find it

necessary that the present matter be placed before a

larger Bench for its consideration, particularly to

answer the following questions:

14.1 (i) Whether Section 340 of the Code of

Criminal Procedure, 1973 mandates a

preliminary inquiry and an opportunity of

hearing to the would-be accused before a

complaint is made under Section 195 of the

Code by a Court ?

14.2 (ii) What is the scope and ambit of such

preliminary inquiry ?”

87. It appears that the reference on the aforesaid two questions

to a larger Bench is still pending.

88. However, we do not intend to dwell upon any further in the

aforesaid context i.e. whether it would be expedient in the

interests of justice to proceed against the writ petitioners for

perjury. We are saying so as we do not want to precipitate this

issue any further. We have said in so many words that this is a

very serious matter as it relates directly to the security of the

nation.

89. In the aforesaid context, we have something else in mind.

We propose to look into Section 211 of the IPC. Section 211 of

the IPC is extracted hereunder:-

“Section 211. False charge of offence made with

intent to injure.—Whoever, with intent to cause injury

to any person, institutes or causes to be instituted any

criminal proceeding against that person, or falsely

charges any person with having committed an offence,

knowing that there is no just or lawful ground for such

proceeding or charge against that person, shall be

punished with imprisonment of either description for a

term which may extend to two years, or with fine, or

with both; and if such criminal proceeding be

instituted on a false charge of an offence punishable

with death, [imprisonment for life], or imprisonment for

seven years or upwards, shall be punishable with

imprisonment of either description for a term which

may extend to seven years, and shall also be liable to

fine.”

90. The essential ingredients for invoking Section 211, I.P.C.

are that the complaint must have falsely charged a person with

having committed an offence. The complainant, at the time of

giving the complaint must have known that there is no just or

lawful ground for making a charge against the person. This

complaint must have been given with an intention to cause

injury to a person.

91. The CrPC does not define what constitutes the making of a

"charge" of an offence or what amounts to the "institution of

criminal proceedings". But, in our opinion, a false "charge" in

this Section must not be understood in any restricted or

technical sense, but in its ordinary meaning, of a false

accusation made to any authority bound by law to investigate it

or to take any steps in regard to it, such as giving information of

it to the superior authorities with a view to investigation or other

proceedings, and the institution of criminal proceedings includes

the setting of the criminal law in motion. The nature of both

expressions, and the difference between them has been

explained in lucid terms in the decision of the Full Bench of the

Calcutta High Court in the case of Karim Buksh v. Queen Emp,

17 C. 574. It points out that there may be a charge which does

not amount to the institution of criminal proceedings "and there

may be criminal proceedings which do not necessarily involve a

charge" of any offence. As an illustration of the former it points

out that a charge made to the Judge of a Civil Court or to public

officers of other kinds, in order to obtain sanction to prosecute

may well be a charge "but is not the institution of criminal

proceedings". It further points out that an aggrieved person may

seek to put the criminal law in motion either by making a charge

or in the language of the Code giving information to the Police

(Section 154 CrPC) "or he may" lay a charge, or as the Code calls

it, a complaint (Section 190 CrPC) before a Magistrate”.

92. We are referring to Section 211 of the IPC as above keeping

in mind the fact that the first information reports lodged by the

writ petitioners at the different police stations were investigated

and at the end of the investigation, the investigating agency

reached to the conclusion that the police force had no role to

play, rather Naxals were responsible for the massacre. Prima

facie, it could be said that false information was given by the

first informants to the police as regards the alleged massacre by

the police force.

93. The essential to be satiated in order to attract the offence

under Section 211 of the IPC was elucidated by this Court in

in Santokh Singh & Ors. v. Izhar Hussan & Anr., (1973) 2

SCC 406. The relevant paragraph is extracted hereinunder:

“10. … This section as its marginal note indicates

renders punishable false charge of offence with

intent to injure. The essential ingredient of an

offence under Section 211 IPC is to institute or cause

to be instituted any criminal proceeding against a

person with intent to cause him injury or with

similar intent to falsely charge any person with

having committed an offence, knowing that there is

no just or lawful ground for such proceeding or

charge. Instituting or causing to institute false

criminal proceedings assume false charge but false

charge may be preferred even when no criminal

proceedings result. It is frankly conceded by Shri

Kohli that the appellant cannot be said to have

instituted any criminal proceeding against any

person. So that part of Section 211 IPC is eliminated.

Now, the expression “falsely charges” in this section,

in our opinion, cannot mean giving false evidence as

a prosecution witness against an accused person

during the course of a criminal trial. To “falsely

charge” must refer to the original or initial

accusation putting or seeking to put in motion the

machinery of criminal investigation and not when

speaking to prove the false charge by making

deposition in support of the charge framed in that

trial. The words “falsely charges” have to be read

along with the expression “institution of criminal

proceeding”. Both these expressions, being

susceptible of analogous meaning should be

understood to have been used in their cognate sense.

They get as it were their colour and content from

each other. They seem to have been used in a

technical sense as commonly understood in our

criminal law. The false charge must, therefore, be

made initially to a person in authority or to someone

who is in a position to get the offender punished by

appropriate proceedings. In other words, it must be

embodied either in a complaint or in a report of a

cognizable offence to the police officer or an officer

having authority over the person against whom the

allegations are made. The statement in order to

constitute the “charge” should be made with the

intention and object of setting criminal law in

motion. …”.

94. Thus, as explained by this Court in Santokh Singh v.

Izhar Hussain (supra), the essential ingredient of an offence

under Section 211 IPC is to institute or cause, to be instituted

any criminal proceeding against a person with intent to cause

him injury or with similar intent to falsely charge any person

with having committed an offence, knowing that there is no just

or lawful ground for such proceeding or charge. Instituting or

causing to institute false criminal proceedings assume false

charge but false charge may be preferred even when no criminal

proceedings result. Now, the expression “falsely charges” in this

section, in our opinion, cannot mean giving false evidence as a

prosecution witness against an accused person during the

course of a criminal trial. “To falsely charge” must refer to the

original or initial accusation putting or seeking to put in motion

the machinery of criminal investigation and not when seeking to

prove the false charge by making deposition in support of the

charge framed in that trial. The words “falsely charges” have to

be, read along with the expression “institution of criminal

proceeding”. Both these expressions, being susceptible of

analogous meaning should be understood to have been used in

their cognate sense. They get as it were their colour and content

from each other. They seem to have been used in a technical

sense as commonly understood in our criminal law. The false

charge must, therefore, be made initially to a person in authority

or to someone who is in a position to get the offender punished

by appropriate proceedings. In other words, it must be’ embodied

either in a complaint or in a report of a cognizable offence to the

police officer or to an officer having authority over the person

against whom the allegations are made. The statement in order

to constitute the “charges” should be made with the intention

and object of setting criminal law in motion.

95. Thus, we leave it to the State of Chhattisgarh/CBI (Central

Bureau of Investigation) to take appropriate steps in accordance

with law as discussed above in reference to the assertions made

in the interim application. We clarify that it shall not be limited

only to the offence under Section 211 of the IPC. A case of

criminal conspiracy or any other offence under the IPC may also

surface. We may not be understood of having expressed any final

opinion on such action/proceedings. We leave it to the better

discretion of the State of Chhattisgarh/CBI to act accordingly

keeping in mind the seriousness of the entire issue. Thus, the

relief prayed for in terms of Para 67(b) hereinabove, of the

subject interlocutory application is hereby granted.

96. We have not remained oblivious of Section 195 CrPC while

discussing the aforesaid. We make it clear that having regard to

the facts of the present case the bar of Section 195 CrPC would

not apply if ultimately the State of Chhattisgarh/CBI decides to

take appropriate action in accordance with law as discussed

above. The issue is no longer res integra in view of the decision

of this Court in M.L. Sethi v. R.P. Kapur, reported in AIR 1967

SC 528, wherein this Court observed as under:

“10. In the interpretation of this clause (b) of subsection (1) of Section 195, considerable emphasis has

been laid before us on the expression “in, or in

relation to”, and it has been urged that the use of the

expression “in relation to” very considerably widens

the scope of this section and makes it applicable to

cases where there can even in future be a proceeding

in any court in relation to which the offence under

Section 211 IPC, may be alleged to have been

committed. A proper interpretation of this provision

requires that each ingredient in it be separately

examined. This provision bars taking of cognizance if

all the following circumstances exist viz. (1) that the

offence in respect of which the case is brought falls

under Section 211 IPC; (2) that there should be a

proceeding in any court; and (3) that the allegation

should be that the offence under Section 211 was

committed in, or in relation to, such a proceeding.

Unless all the three ingredients exist, the bar under

Section 195(1)(b) against taking cognizance by the

Magistrate, except on a complaint in writing of a

court, will not come into operation. In the present

case also, therefore, we have to see whether all these

three ingredients were in existence at the time when

the Judicial Magistrate at Chandigarh proceeded to

take cognizance of the charge under Section 211 IPC

against the appellant.

11. There is, of course, no doubt that in the complaint

before the Magistrate a charge under Section 211 IPC,

against the appellant was included, so that the first

ingredient clearly existed. The question on which the

decision in the present cases hinges is whether it can

be held that any proceeding in any court existed when

that Magistrate took cognizance. If any proceeding in

any court existed and the offence under Section 211

IPC, in the complaint filed before him was alleged to

have been committed in such a proceeding, or in

relation to any such proceeding, the Magistrate would

have been barred from taking cognizance of the

offence. On the other hand, if there was no proceeding

in any court at all in which, or in relation to which,

the offence under Section 211 could have been alleged

to have been committed, this provision barring

cognizance would not be attracted at all. 12. In this

case, as we have already indicated when enumerating

the facts, the complaint of which cognizance was

taken by the Judicial Magistrate at Chandigarh was

filed on April 11, 1959 and at that stage, the only

proceeding that was going on was investigation by the

police on the basis of the First Information Report

lodged by the appellant before the Inspector-General

of Police on December 10, 1958. There is no mention

at all that there was, at that stage, any proceeding in

any court in respect of that FIR When examining the

question whether there is any proceeding in any

court, there are three situations that can be

envisaged. One is that there may be no proceeding in

any court at all. The second is that a proceeding in a

court may actually be pending at the point of time

when cognizance is sought to be taken of the offence

under Section 211 IPC. The third is that, though there

may be no proceeding pending in any court in which,

or in relation, to which the offence under Section 211

IPC could have been committed, there may have been

a proceeding which had already concluded and the

offence under Section 211 may be alleged to have

been committed in, or in relation to, that proceeding.

It seems to us that in both the latter two

circumstances envisaged above, the bar to taking

cognizance under Section 195(1)(b) would come into

operation. If there be a proceeding actually pending in

any court and the offence under Section 211 IPC is

alleged to have been committed in relation to that

proceeding, Section 195(1)(b) would clearly apply.

Even if there be a case where there was, at one stage,

a proceeding in any Court which may have concluded

by the time the question of applying the provisions of

Section 195(1)(b) arises, the bar under that provision

would apply if it is alleged that the offence under

Section 211 IPC, was committed in relation to that

proceeding. The fact that the proceeding had

concluded would be immaterial because Section

195(1)(b) does not require that the proceeding in any

court must actually be pending at the time applying

this bar arises.”

97. With the aforesaid, we dispose of this Interlocutory

Application.

………………………………………..J.

(A.M. KHANWILKAR)

………………………………………..J.

(J.B. PARDIWALA)

NEW DELHI;

JULY 14, 2022

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HIMANSHU KUMAR AND OTHERS Versus STATE OF CHHATTISGARH AND OTHERS

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