HIMANSHU KUMAR AND OTHERS Versus STATE OF CHHATTISGARH AND OTHERS

HIMANSHU KUMAR AND OTHERS Versus STATE OF CHHATTISGARH AND OTHERS


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


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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
2
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;
(c) Pass any such further order or orders, as this
Hon’ble Court may deem fit and proper in the facts
and circumstances stated herein above.”
4. By way of the Criminal M.P. No. 3173 of 2010, further
reliefs 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
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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;
(c) Order permitting the petitioner no.1 and the
advocates for the petitioner no.1 along with their
interpreters to meet the petitioners 2-12 at the Guild
for Services, New Delhi in 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
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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
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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
2
Soyam Rama
Paternal Uncle
Paternal Aunt
Niece
Niece
Nephew
Gompad
Gompad
Gompad
Gompad
Gompad
Madvi Bajaar
Madvi Subi
Ku. Madvi Mutti
Smt Kartam Kunni
Madvi Enka
01.10.09
01.10.09
01.10.09
01.10.09
01.10.09
3
Shri Kunjam
Hidma
Son Belpocha Kunjam Hurra 01.10.09
4
Shri Madavi
Hidma
Brother Gachhanpalli Madvi Hadma 17.09.09
5
Shri Madavi
Sukda
Son Gachhanpalli Madvi Deva 17.09.09
6
Shri Madavi
Pojja
Aunt Gachhanpalli Dudhi Moye 17.09.09
6
7
Shri Soyam
Dulla
Son Gompad Soyam Subba 01.10.09
8
Smt. Muchaki
Sukdi
Husband Nulkatong Muchaki Mukka 01.10.09
9
Madavi Hurre
Sister Gachhanpalli Dudhi Moye 17.09.09
10
Shri Madavi
Raja
Father Gachhanpalli Madvi Dora 17.09.09
11
Smt.Madkam
Muke
Husband Gachhanpalli Madkam Chula 17.09.09
12
Shri Kowasi
Kosa
Father Gachhanpalli Kowasi Ganga 17.09.09
13
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.
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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.
8
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
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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
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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.
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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
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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.
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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
14
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
15
(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
16
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
17
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
18
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.
19
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.
20
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
21
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
22
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.
23
(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
24
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
25
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
26
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
27
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 :
28
“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
29
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.
30
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
31
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.
32
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
33
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
34
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.
35
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.
36
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
37
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
38
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.
39
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.”
40
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
41
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.
42
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
43
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.
44
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
45
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
46
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.”
47
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
48
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
13
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
49
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
50
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
51
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
52
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
53
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
54
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
55
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
56
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
57
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
58
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.
59
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.
60
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
61
(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
62
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
63
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.
64
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;
(c) And direct appropriate action against the
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.
65
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,
66
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
67
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.
68
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
69
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
70
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.
71
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;
(c) send it to a Magistrate of the first class having
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
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
73
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
74
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.”
75
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
76
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.”
77
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
78
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.”
79
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
80
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
81
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
82
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
83
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,
84
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,
85
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 :
86
“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
87
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
88
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
89
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
90
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
91
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
92
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
93
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
94
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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