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WRIT PETITION (CRIMINAL) NO. 103 OF 2009
HIMANSHU KUMAR AND OTHERS …Petitioner (s)
JUDGMENT
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 2022 INSC 720 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
4. By way of the Criminal M.P. No. 3173 of 2010, further reliefs have been prayed for as under: “(a) Order directing the State of Chhattisgarh to constitute and notify a Special Investigation Team (SIT) headed by Shri Sankar Sen (IPS) Dr.K.S.Subramanian, IPS and Mr.Rajneesh Rai, DIG and such other officers as the SIT may deem necessary with additional directions for the proper functioning of the SIT as given by the Supreme Court in the case of NHRC vs. State of Gujarat (2009) 6 SCC 342, 767). (b) Order directing the State of Chhattisgarh to produce Petitioners 2-12 at Delhi and hand them over to Dr.Mohini Giri, Chairperson, Guild for Services, ‘Shubham’, C-25, Qutab Institutional Area, New Delhi;
(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,
5. The facts giving rise to the present writ petition may be summarised as under:
6. The writ petitioner no.1, namely Himanshu Kumar, claims himself to be running an NGO in the name of Vanvasi Chetna Ashram, Kanwalnar – Dantewada Chhattisgarh. He claims to be running an NGO for the welfare and development of the tribals residing in the Bastar region. He also claims to be rendering help to the other tribals of the Dantewada district of Chhattisgarh.
7. The writ petitioners nos. 2 to 13 respectively are the kith and kin of the victims of the alleged massacre.
8. It is the case of the petitioner no.1 that after the two horrifying incidents referred to above, the tribals are in a state of shock. They constantly remain under the fear of being killed by the Special Forces referred to above.
9. It is his case that with a view to help the tribals and seek justice for them, he took up the cause and thought fit to prefer the present writ petition seeking an investigation into the alleged massacre through the Central Bureau of Investigation (CBI) and an appropriate compensation to be paid to the victims and their families.
10. It is the case of the petitioner no.1 that he helped the tribals to lodge their respective complaints as regards the alleged mass killings that took place on 17th September 2009 and 1st October 2009 respectively.
11. According to the petitioner no.1, the tongue and other parts of the body, such as, the upper limbs, lower limbs, etc. of the family members of the petitioners nos.[2] to 13 respectively were chopped off by the security force. It is alleged that the security forces did not spare even the infants. It is also alleged that the breast of a 70-year-old tribal woman were chopped off and was stabbed to death by the members of the police forces. It is also alleged that a 2-year-old infant was brutally murdered. The houses of the tribals were burnt. Money and properties were looted.
12. It has been further pointed out that on 8th January 2009, 19 people were killed by the above referred forces at the village Singaram, Tehsil Konta, District Dantewada.
13. On 18th March 2008, 3 tribals were killed at Matwada, Salwa Judum Camp, District Bijapur, by the Chhattisgarh Police and SPOs.
14. It has been pointed out that with respect to the aforesaid two incidents, the matter was taken up by the National Human Rights Commission.
15. It is the case of the petitioner no.1 that as the Special Forces and the State of Chhattisgarh itself are involved in the alleged brutal massacre of the tribals, the investigation of all the complaints should be at the instance of none other than the CBI.
16. In the memorandum of the writ petition, the information as regards the relationship between the petitioners nos.[2] to 13 respectively and the deceased has been furnished as under: Petitioner No. Relation with the deceased Village of the deceased Name of deceased Date of Killings Soyam Rama Paternal Uncle Paternal Aunt Niece Niece Nephew Gompad Madvi Bajaar Madvi Subi Ku. Madvi Mutti Smt Kartam Kunni Madvi Enka 01.10.09 Shri Kunjam Hidma Son Belpocha Kunjam Hurra 01.10.09 Shri Madavi Hidma Brother Gachhanpalli Madvi Hadma 17.09.09 Shri Madavi Sukda Son Gachhanpalli Madvi Deva 17.09.09 Shri Madavi Pojja Aunt Gachhanpalli Dudhi Moye 17.09.09 Shri Soyam Dulla Son Gompad Soyam Subba 01.10.09 Smt. Muchaki Sukdi Husband Nulkatong Muchaki Mukka 01.10.09 Madavi Hurre Sister Gachhanpalli Dudhi Moye 17.09.09 Shri Madavi Raja Father Gachhanpalli Madvi Dora 17.09.09 Smt.Madkam Muke Husband Gachhanpalli Madkam Chula 17.09.09 Shri Kowasi Kosa Father Gachhanpalli Kowasi Ganga 17.09.09 Sodhi Sambo Himself Gompad Petitioner No.13 Himself (injured for shooting) 01.10.09
17. The details of the alleged killings on different dates have also been furnished in the memorandum of the writ petition. However, we may not verbatim reproduce the same in our order.
18. The details on the First Information Reports are as under:
┌────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┐ │ Sl. FIR No., Date, Complainant(s) Accused Gist of Gist of Final Present │ │ No. PS, Sections allegations Report Status │ ├────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┤ │ 1 2 3 4 5 6 7 │ │ 01 PS-Bhejji Shri Ravindra Unknown On information According to the The closure │ │ Dt. - Singh, Maoist Cadres about the Investigating report was │ │ 18.09.2009 Assistant and Sangam presence of Officer, even accepted on │ │ Crime No. Commndt. 201 Members. Naxal cadres, an after a long 26.10.2010 │ │ 04/2009 Cobra Bn. anti naxal search, no by the │ │ Sec.- 147, operation was accused were learned Chief │ │ 148, 149, 307 launched on found and on Judicial │ │ IPC, 25, 27 16.9.2009 from no possibility of Magistrate, │ │ Arms Act. PS Bhejji finding the Dantewada. │ │ towards accused in near │ │ Gachchanpalli, future, the │ │ Aitrajpad and closure report │ │ Entapad by the was forwarded │ │ Security forces. on 20.10.2010 │ │ The Maoists to the learned │ │ made an attempt CJM, │ │ to kill the Sfs by Dantewada │ │ Gun-fire, failing having │ │ so, ran away jurisdiction. │ │ burning their │ │ hideouts. │ │ 02 PS-Chintagufa Shri Unknown On 16.09.2009, According to the The closure │ │ Dt. - Premprakash Uniformed the police party Investigating report was │ │ 20.09.2009 Awadhiya, Sub female and left for Officer, even accepted on │ │ Crime No. Inspector male naxalites Singanmadgu for after a long 26.10.2010 │ │ 10/2009 PS. - Sukma about 200- Anti Naxal search, no by the │ │ Sec.- 307, 300 in operation from accused were learned Chief │ │ 395, 397, number. police station found and on Judicial │ │ 147, 148, Chintagufa. On no possibility of Magistrate, │ │ 149, 302 IPC, the morning of finding the Dantewada. │ │ 25, 27 Arms 17.09.2009, accused in near │ │ Act, 3, 4 when the party future, the │ │ Explosive reached the closure report │ │ Subs. Act. dense forests of was forwarded │ │ Singanmadgu, on 20.10.2010 │ │ the camp of to the learned │ │ Naxalites was CJM, │ │ seen from where Dantewada │ │ some weapons having │ │ and other items jurisdiction. │ │ 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, │ │ Constable │ │ Kamalvoshe and │ │ Constable │ │ Mohammad │ │ Husain Quraishi │ │ were of CoBRA │ │ company also │ │ injured. │ │ 03. PS-Bhejji Shri Matram Unknown On the According to the The closure │ │ Dt. - Bariha, Head Uniformed information of Investigating report was │ │ 25.11.2009 Constable – Naxalites in increased Maoist Officer, even accepted on │ │ Crime No. 156 PS. - Bhejji large activities and after a long 26.10.2010 │ │ 05/2009 numbers. presence of search, no by the │ │ Sec.- 147, hideout camps of accused were learned Chief │ │ 148, 149, 307 armed Naxalites found and on Judicial │ │ IPC, 25, 27 in Gompad no possibility of Magistrate, │ │ Arms Act. village PS Bhejji, finding the Dantewada. │ │ three teams of accused in near │ │ CoBRA 201 Bn. future, the │ │ Departed on an closure report │ │ anti Naxal was forwarded │ │ operation on on 20.10.2010 │ │ 30.09.2009 from to the learned │ │ injram. On CJM, │ │ 01.10.2009 this Dantewada │ │ combined party having │ │ was attacked in jurisdiction. │ │ form an ambush │ │ by Naxalites in │ │ Gompad with │ │ objectives of │ │ killing the SFs. │ │ 04. PS-Bhejji Shri Soyam Unknown On 08.01.2010 Charge sheet Permanent │ │ Dt. - Rama Armed on information of filed on Non-Bailable │ │ 08.01.2010 Add. - Gompad Uniformed applicant Soyam 09.09.2010 Warrant has │ │ Crime No. persons 20- Rama s/o Soyam against 10 been issued │ │ 01/2010 25. Kanna resident named against the │ │ Sec.- 396, 397 Gompad village, absconding accused by │ │ IPC, 25, 27 Absconding a FIR-01/2010 accused u/sec. the Hon’ble │ │ Arms Act. accused - under sec.396, 396, 397 IPC, Judicial │ │ 1-Venktesh 397 IPC, 25, 27 25, 27 Arms Magistrate │ │ s/o Unknown Arms Act was Act. First Class │ │ 2-Rajesh alias registered in PS (JMFC) │ │ Joga s/o Bhejji and taken Konta. │ │ Unknown into investigation │ │ 3-Vijay alias against unknown │ │ Ekanna Naxalites │ │ 4-Savitri Bai causing murder │ │ w/o Unknown of 7 deceased │ │ 5-Manila w/o named – Madvi │ │ Unknown Bazar, Madvi │ │ 6-Bhima s/o Subbi, Madvi │ │ Unknown Mutti, Kattam │ │ 7-Jayram s/o Kanni, Madvi │ │ Unknown Enka, Soyam │ │ 8-Samita w/o Subba and │ │ Chandrana Soyam Jogi. │ │ 9-Bhaskar │ │ alias Rajesh │ │ s/o │ │ Venkteswerlu │ │ 10-Kavita d/o │ │ Jayram │ │ 05. PS-Bhejji Shri Maadvi 20-25 On 21.02.2010 Charge sheet Permanent │ │ Dt. - Hadma Unknown on report of filed on Non-Bailable │ │ 21.02.2010 Add.- Uniformed applicant Madvi 09.09.2010 Warrant has │ │ Crime No. Gachchanpalli person Hadma resident against 10 been issued │ │ 06/2010 village. carrying gun of Gachchanpalli named against the │ │ Sec.- 147, and banda. FIR No.-06/2010 absconding accused by │ │ 148, 149, 302 under sections – accused u/sec. the Hon’ble │ │ IPC, 25, 27 147, 148, 149, 147, 148, 149, Judicial │ │ Arms Act. 302 IPC & 25, 27 302 IPC, 25, 27 Magistrate │ │ Arms Act was Arms Act. First Class │ │ registered at PS- (JMFC) │ │ Bhejji against Konta. │ │ unknown │ │ Naxalites for │ │ murder of Madvi │ │ Hidma, Madvi │ │ Joga, Kawasi │ │ Ganga, Madkami │ │ Chula & Dudhi │ │ Muye. │ │ 06. PS-Bhejji Shri Komram Unknown On 21.02.2010 Charge sheet Permanent │ │ Dt. - Lachcha number of 20- on report of filed on Non-Bailable │ │ 22.02.2010 Add.- 30 persons applicant Madvi 09.09.2010 Warrant has │ │ Crime No. Chintagufa holding gun in Hadma resident against 10 been issued │ │ 07/2010 uniform. of Gachchanpalli named against the │ │ Sec.- 147, FIR No.-06/2010 absconding accused by │ │ 148, 149, 302 Absconding under sections – accused u/sec. the Hon’ble │ │ IPC, 25, 27 accused - 147, 148, 149, 147, 148, 149, Judicial │ │ Arms Act. 1-Venktesh 302 IPC & 25, 27 302 IPC, 25, 27 Magistrate │ │ s/o Unknown Arms Act was Arms Act. First Class │ │ 2-Rajesh alias registered at PS- (JMFC) │ │ Joga s/o Bhejji against Konta. │ │ Unknown unknown │ │ 3-Vijay alias Naxalites for │ │ Ekanna murder of Madvi │ │ 4-Savitri Bai Hidma, Madvi │ │ w/o Unknown Joga, Kawasi │ │ 5-Manila w/o Ganga, Madkami │ │ Unknown Chula & Dudhi │ │ 6-Bhima s/o Muye. │ │ Unknown │ │ 7-Jayram s/o │ │ Unknown │ │ 8-Samita w/o │ │ Chandrana │ │ 9-Bhaskar │ │ alias Rajesh │ │ s/o │ │ Venkteswerlu │ │ 10-Kavita d/o │ │ Jayram │ │ 19. It is the case of the petitioners that after the registration of │ └────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┘
31. In such circumstances referred to above, Mr. Gonsalves prays that this Court may issue a mandamus directing the CBI to carry out the investigation of all the First Information Reports referred to above.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS:
32. Mr. Tushar Mehta, the learned Solicitor General appearing for the Union of India, on the other hand, has vehemently opposed the present writ petition. He would submit that the petition deserves to be rejected not only with exemplary costs, but each of the petitioners should be held guilty of levelling false charges of offence and of giving false and fabricated evidence before this Court with an intention to procure conviction for a capital offence or for life imprisonment against the personnel of security forces with a view to screen off the actual offenders of the Left Wing (Naxal) terrorism.
33. Mr. Mehta would submit that if such palpably false and motivated writ petition at the instance of an NGO is entertained by this Court, then the same may lead to disastrous results as the very morale of the different police and paramilitary forces fighting against the Naxals would be shaken.
34. Mr. Mehta, in the course of his submissions, highlighted a very shocking picture as to how the Naxalites, over a period of time, have brutally killed the members of the police forces. According to Mr. Mehta, the mastermind behind this writ petition is the petitioner no.1 claiming to run an NGO for the welfare and interest of the tribals. According to Mr. Mehta, the petitioners nos.[2] to 13 are absolutely rustic and illiterate tribals. It is at the instigation of the petitioner no.1 that they might have thought fit to join as the petitioners.
35. Mr. Mehta would submit that this petition is of the year
2009. Almost 13 years have passed by till this date. However, it is very shocking to know that none of the petitioners have any idea about the investigation which has already been carried out by the police with respect to each of the FIRs.
36. Mr. Mehta invited the attention of this Court to one order passed by a Coordinate Bench dated 15th February 2010. The same reads thus: “O R D E R The Chief Secretary, in terms of our directions, has filed his Report, which shall form part of the record and to be put in a sealed cover. On 8.2.2010, after hearing the parties, we have issued the following directions: “Learned senior counsel appearing on behalf of the petitioners submits that after the adjournment of this Writ Petition on 5th February, 2010 Petitioner Nos. 2 to 13 were illegally taken into custody or caused their disappearance by the respondentpolice. Learned counsel appearing for the State of Chhatisgarh seriously disputes the correctness of the assertion made by the learned senior counsel about the police being responsible for causing the disappearance of Petitioner Nos. 2 to 13. We at this stage do not propose to express any opinion whatsoever on this issue relating to the alleged disappearance of the Petitioner Nos. 2 to
13. Be that as it may, we would like to examine the Petitioner Nos. 2 to 13 and hear their version as to what transpired in the matter after we have heard and adjourned the hearing of this petition on 5th February, 2010 or prior thereto. The interest of justice requires the production of Petitioner Nos. 2 to 13 in this Court. We, accordingly, direct Respondent No.1 to produce the Petitioner Nos. 2 to 13 in this Court on 15th February, 2010 for the purpose of further hearing of this petition. The Chief Secretary, State of Chhatisgarh is directed to ensure the compliance of this Order and submit his own report on or before 15th February, 2010.” Pursuant to our directions the first respondent produced six out of 13 petitioners, namely, Shri Soyam Rama, Shri Kunjam Hidma, Shri Madavi Hidma, Shri Soyam Dulla, Smt. Muchki Sukri and Smt. Sodhi Sambo (Petitioner Nos. 2, 3, 4, 7, 8 and 13 respectively). We are informed that the six petitioners who are produced before us today speak only ‘Gondi language’ and no other language. In the circumstances, it would not be possible for us even to elicit any information from them and interact with them. We are of the view that their security is a paramount consideration. It is equally important that they should be allowed to express themselves freely without being influenced by any outside agencies or individuals. In the circumstances, we consider it appropriate to request Mr. G.P. Mittal, District Judge-I, Tis Hazari, Delhi to record their statements in the presence of the interpreter, namely, Mohan Sinha, as well as the first petitioner Mr. Himanshu Kumar, who is stated to be conversant with their language. The District Judge shall first satisfy to himself that the petitioners, who are required to be examined by him are not under any pressure or threat from any quarter whatsoever. We also request the District Judge to ensure their safety as along as they are in Delhi, for which purpose the Union of India shall comply with such directions as may be issued by the District Judge from time to time. The learned Attorney General for India has stated before us that in terms of the directions to be issued by the District Judge, the Union of India shall ensure their safety and protection. We also permit the learned counsel for the petitioner Shri Colin Gonsalves or any other lawyer to be nominated by him to be present in the proceedings before the District Judge along with counsel for the Union of India and the counsel for the State of Chhatisgarh. We make it very clear that the District Judge shall proceed to record the statement only after being satisfied to himself that the persons produced before him are free from any pressure and are capable of making statement freely without being influenced by any of the outside agency/parties. The learned District Judge is requested to arrange for a videography of the entire proceedings. The Registrar Judicial will immediately convey this order to the District Judge. Copy of this order shall also be given to the counsel for all the parties. List this matter tomorrow at 1-15 p.m. in Court for further directions.”
37. According to Mr. Mehta, in context with the aforesaid order, various statements of the petitioners came to be recorded by the District Judge-I and Sessions Judge, Delhi. The plain reading of such statements of the petitioners would indicate that they have no idea as to what has been stated in the memorandum of the writ petition and for what reasons the writ petition came to be filed. The statements recorded by the Judicial Officer in accordance with the directions issued by a Coordinate Bench of this Court vide the order referred to above, destroys the entire case put up by the writ petitioner no.1.
38. Mr. Mehta urged before this Court to take a strict view of the matter. Mr. Mehta also pointed out that the Union of India has filed an Interlocutory Application No. 52290 of 2022 seeking appropriate action against the petitioners. We shall look into and deal with the Interlocutory Application a little later.
39. In such circumstances referred to above, Mr. Mehta prays that this writ petition may be rejected with exemplary costs and appropriate action may be taken against the writ petitioners.
SUBMISSIONS ON BEHALF OF THE STATE OF CHHATTISGARH:
40. Mr. Sumeer Sodhi, the learned counsel appearing for the State of Chhattisgarh, has also vehemently opposed this writ petition. In a written note provided to us, Mr. Sodhi has highlighted in what manner the Chhattisgarh Police carried out the investigation of both the incidents and also the details as regards the registration of the FIRs. The same reads thus: “Crime No.: 04/2009 Police Station: Bhejji Date of Registration: 18/09/2009 Sections: 147, 148, 149, 307 IPC; 25, 27 Arms Act. Date of Incident: 17.09.2009. Complainant: Shri Ravindra Singh, Assistant Commdt. 201 Cobra Bn. Accused: Unknown Maoist Cadres and Sangam Members Allegations: On information about the presencc of Naxal cadres, an anti-naxal operation was launched on 16.09.2009 from PS Bhejji towards Gachchanpalli, Aitrajpad and Entapad by the Security forces. Naxals made a life threatening attack on security forces near Gachchanpalli and run away putting their shelter on fire. Gist of Final Report: Even after a long search no accused were found and on no possibility of finding in near future, closure report was filed before the Hon'ble court on 20.10.2010. Present Status: According to the closure report presented by the investigating officer, even after a long search no accused were found and on no possibility of finding in near future closure report is accepted on 26.10.2010 by the learned chief Judicial Magistrate. Crime No.: 10/2009: Police Station: Chintagufa Date of Registration: 20/09/2009 Sections: 395, 397, 147, 148, 149, 302 IPC; 25, 27 Arms Act; 3,[4] Explosive. Subs. Act. Date of Incident: 17.09.2009 and 18.09.2009. Complainant: Shri Premprakash Awadhiya, Sub Inspector, PS.-Sukma Accused: Unknown Uniformed female and male naxalites about 200-300. Allegations: On 16/09/2009, the police party left for Singanmadgu for Anti Naxal operation from police station Chintagufa. On the morning of 17/09/2009, when the party reached the dense forests of Singanmadgu, the camp of Naxalites were seen and exchange of fire took place. After encounter in search of the place of incident weapons and a body of naxal was recovered. Then after a while one km ahead 200-300 unknown Naxalites again cordoned the police party and attacked the Security forces, in which - Assistant Commandant Shriram Manoranjan, Assistant Commandant Shri Rakesh Kumar Chaurasiya, Sub Inspector Shri Sushil Kumar Varma, Head-Constable Lalit Kumar, Constable Manoharlal Chandra and Constable Uday Kumar Yaday of Cobra Company were martyred and four others Constable Satpal, Constable Harish Thakur, Constable Kamalvoshe and Constable Mohammad Husain Quraishi were also injured. Gist of Final Report: According to the investigating officer, even after a long search no accused were found and since there was no possibility of finding in near future, closure report has been filed before the Hon’ble Trial court on 20.10.2010. Present Status: According to the closure report presented by the investigating officer, even after a long search no accused were found and on no possibility of finding in near future closure report is accepted on 26.10.2010 by the learned Chief Judicial Magistrate. Crime No.: 06/2010 Police Station: Bhejji Date of Registration: 21/02/2010 Sections: 147, 148, 149, 302 IPC; 25, 27 Arms Act. Date of Incident: Approximately three-four months ago at 7.00 am in the morning from the date of incident, (therefore, probable incident here is 01.10.2009) Complainant: Shri Maadvi Hadma Address: Gachhanpalli (Petitioner No. 4) Accused: 20-25 Unknown uniformed person holding gun and banda. Absconding accused- 1-Venktesh s/o Unknown 2-Rajesh alias Joga s/o Unknown 3-Vijay alias Vijay alias Ekanna 4-Savitri Bhai w/o Unknown 5-Manila w/o Unknown 6-Bhima s/o Unknown 7-Jayram s/o Unknown 8-Samita w/o Chandrana 9-Bhaskar alias Rajesh s/o Venkteshwerlu 10-Kavita D/o jayram Allegations: On 21/02/2010 upon report of applicant Madvi Hadma, resident of Gachchanpalli, FIR No.06/2010 u/s 147, 148, 149, 302 IPC & 25, 27 Arms Act was registered at Police Station Bhejji against unknown naxalites for murder of Madvi Hidma, Madvi Joga, Kawasi Ganga, Madkami Chula & Dudhi Muye. Gist of Final Report: Chargesheet filed on 09/09/2010 against 10 named absconding accused u/sec.147, 148, 149, 302 IPC; 25, 27 Arms Act. Present Status: Permanent warrant has been issued against the absconding accused by the Hon’ble Judicial Magistrate First Class Konta.
6. In respect of the incident dated 01.10.2010 that took place at Gompad, the State of Chhattisgarh has already registered following FIRs against the offences committed on that day. The details of the FIRs are: Crime No.: 05/2009 Police Station: Bhejji Date of Registration: 25/11/2009 Sections: 147, 148, 149, 307 IPC; 25, 27 Arms Act. Date of Incident: 01.10.2009. Complainant: Shri Matram Bariha, Head Constable, PS.-Bhejji Accused: Unknown Uniformed Naxalites in large numbers. Allegations: On the information of increased activities and camps of armed naxalites in Gompad village PS Bhejji, three teams of Cobra 201 Bn departed on an anti naxal operation on 30/09/2009 from injram. On 01.10.2009 this combined party was ambushed by Naxalites in Gompad. Gist of Final Report: According to the investigating officer, even after a long search no accused were found and on no possibility of finding in near future closure report is filed before the Hon’ble court on 20.10.2010 Present Status: According to the closure report presented by the investigating officer, even after a long search no accused were found and on no possibility of finding in near future closure report is accepted on 26.10.2010 by the learned Chief Judicial Magistrate. Crime No.: 01/2010 Police Station: Bhejji Date of Registration: 08/01/2010 Sections: 396, 397 IPC, 25, 27 Arms Act. Date of Incident: Approximately a week before Deewali. Complainant: Shri Soyam Rama (Petitioner No.2) Accused: Unknown Armed uniformed person 20-25 Absconding accused- 1-Venktesh s/o Unknown 2-Rajesh alias Joga s/o Unknown 3-Vijay alias Vijay alias Ekanna 4-Savitri Bhai w/o Unknown 5-Manila w/o Unknown 6-Bhima s/o Unknown 7-Jayram s/o Unknown 8-Samita w/o Chandrana 9-Bhaskar alias Rajesh s/o Venkteshwerlu 10-Kavita D/o Jayram Allegations: On 08/01/2010 upon information of applicant Soyam Rama s/o Soyam Kanna resident Gompad village, a FIR-01/2010 u/s 396, 397 IPC, 25, 27 Arms Act was registered in PS Bhejji and taken into investigation against unknown naxalites causing murder of 7 deceased named - Madvi Bazar, Madvi Subbi, Madvi Mutti, Kattam Kanni, Madvi Enka, Soyam Subba and Soyam Jogi. Gist of Final Report: Chargesheet filed on 09/09/2010 against 10 named absconding accused u/s 396, 397 IPC; 25, 27 Arms Act. Present Status: Permanent warrant has been issued against the absconding accused by the Hon’ble Judicial Magistrate First Class Konta. Crime No.: 07 2010 Police Station: Bhejji Date of Registration: 22/02/2010 Sections: 147, 148, 149, 302 IPC, 25, 27 Arms Act. Date of Incident: A approximately five months ago in the morning from the date of incident, (therefore, probable incident here is 01.10.2009) Complainant: Shri. Komram Lachcha, Address- Chintagufa Accused: 20-25 Unknown uniformed person holding gun and banda. Absconding accused- 1-Venktesh s/o Unknown 2-Rajesh alias Joga s/o Unknown 3-Vijay alias Vijay alias Ekanna 4-Savitri Bhai w/o Unknown 5-Manila w/o Unknown 6-Bhima s/o Unknown 7-Jayram s/o Unknown 8-Samita w/o Chandrana 9-Bhaskar alias Rajesh s/o Venkteshwerlu 10-Kavita D/o Jayram Allegations: On 22/02/2010 upon report of applicant Komram Lachcha, resident of Chintagufa, FIR No.07/2010 u/s 147, 148, 149, 302 IPC & 25, 27 Arms Act was registered at PS - Bhejji against unknown naxalites for murder of Komram Mutta. Gist of Final Report: Chargesheet filed on 09/09/2010 against 10 named absconding accused u/sec.147, 148, 149, 302 IPC & 25, 27 Arms Act. Present Status: Permanent warrant has been issued against the absconding accused by the Hon’ble Judicial Magistrate First Class Konta.”
41. Mr. Sodhi also highlighted the following contradictions and anomalies in the case of the petitioners: “1. Hot oil theory retracted: Petitioner claimed in the Writ Petition at Page E of the Synopsis and Page 9 of the Petition Paper book that one Muchki Deva (60yrs) of Ondhepara was grazing cattle on the morning of 17th September. He was caught, beaten and dragged into the village by security forces. He was hanged upside down from a tree and a pot of oil was lit below and he was dropped into it. As a result, the upper part of his body was severely burnt and he had developed maggots in his wounds. However, thereafter the Petitioners filed an Application before this Hon’ble Court dated 02.02.2010 bearing Crl.M.P. No. 3173/2010 seeking directions from this Hon’ble Court. In the said Application, the Petitioners retracted the Hot Oil Theory in Paragraph 18 of the Application stating that it was a mistake that took place during translations. It was now claimed that Muchki was burnt by electrocution by attaching wires to his head. It is important to note that the present Writ Petition was filed on around 27.10.2009, notice by this Court was issued on 23.11.2009 on the basis of the contents of the Writ Petition, and the Interlocutory Application bearing Cri. MP No. 3173.2010 was moved on 02.02.2010. Therefore, it is pertinent to note that Petitioners have changed their stand multiple times in respect of serious allegations levelled against the defence forces of the country and the Chhattisgarh Police Department.
2. Contradictions in complaint vis-a-vis Sec. 164 Statements about killings - Petitioner No. 5 in the complaint filed alongwith the present Writ Petition at Page 35 of the Paperbook has alleged that his son was killed on 17.09.2009 by SPOs. It is pertinent to note that the State of Chhattisgarh in its affidavit dated 30.08.2010 has stated in paragraph 8 that in Statement of Petitioner No. 5 recorded under Section 164 of the Criminal Procedure Code, 1973 on 11.03.2010, he has stated that his son was killed three years ago.
3. False narrative sought to be created in Petitioner’s Written submissions - A plain reading of Paragraph 13 of the Written Submissions filed by the Petitioner creates a brutal impression of the security forces to the effect that Petitioner No.13’s two year old grandchild was killed after chopping off the child’s fingers. The purported cyclostyle complaint of Petitioner No. 13 is at Page 53 whereas her statement recorded under orders of this Court can be found at Page 171 of the Paperbook. A perusal of both these documents reveals that no such case was ever made out by Sodhi Sambo i.e. Petitioner No. 13.
4. Non-corroboration of contents of Writ Petition with statements made by the Petitioners before District Judge appointed by this Court — Looking at the seriousness of the allegations contained in the Writ Petition, which were vehemently denied by the State, this Court directed that statements of Petitioner Nos. 2-13 be recorded by a District Judge at New Delhi. A bare perusal of the statements made by the Petitioners reveal that none of the Petitioners corroborate the allegations made in the writ petition. Further the petitioners do not even say that their relatives were killed by uniformed persons. - Ref can be made to the Statements - Page 154 onwards
5. No Affidavit of authorisation of Petitioners No. 2 to It is pertinent to note that the present petition has been filed by the Petitioner No. 1 (Himanshu Kumar) on behalf of Petitioner No. 2 to 13. However, there is no affidavit on record whereby Petitioners No. 2 to 13 have authorised Petitioner No. 1.”
42. In such circumstances referred to above, Mr. Sodhi prays that there being no merit in the present writ petition, the same may be rejected with exemplary costs and appropriate actions against each of the writ petitioners for misleading the Court and fabricating false evidence. ANALYSIS:
43. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is, whether any case has been made out by the writ petitioners for the investigation of the two incidents through the CBI.
POSITION OF LAW:
44. It is now settled law that if a citizen, who is a de facto complainant in a criminal case alleging commission of cognizable offence affecting violation of his legal or fundamental rights against high Government officials or influential persons, prays before a Court for a direction of investigation of the said alleged offence by the CBI, such prayer should not be granted on mere asking. A Constitution Bench of this Court, in the case of the State of West Bengal and others v. Committee for Protection of Democratic Rights, West Bengal, reported in (2010) 3 SCC 571, has made the following observations pointing out the situations where the prayer for investigation by the CBI should be allowed: “70.… In so far as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such powers should be exercised, but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.” (emphasis supplied)
45. In the above decision, it was also pointed out that the same court in Secretary, Minor Irrigation & Rural Engineering Services, U.P. v. Sahngoo Ram Arya & Anr., (2002) 5 SCC 521, had said that an order directing an enquiry by the CBI should be passed only when the High Court, after considering the material on record, comes to the conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency.
46. In an appropriate case when the Court feels that the investigation by the police authorities is not in a proper direction, and in order to do complete justice in the case and if high police officials are involved in the alleged crime, the Court may be justified in such circumstances to handover the investigation to an independent agency like the CBI. By now it is well-settled that even after the filing of the charge sheet the court is empowered in an appropriate case to handover the investigation to an independent agency like the CBI.
47. The extraordinary power of the Constitutional Courts under Articles 32 and 226 respectively of the Constitution of India qua the issuance of directions to the CBI to conduct investigation must be exercised with great caution as underlined by this Court in the case of Committee for Protection of Democratic Rights, West Bengal (supra) as adverted to herein above, observing that although no inflexible guidelines can be laid down in this regard, yet it was highlighted that such an order cannot be passed as a matter of routine or merely because the parties have levelled some allegations against the local police and can be invoked in exceptional situations where it becomes necessary to provide credibility and instill confidence in the investigation or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice and for enforcing the fundamental rights. We are conscious of the fact that though a satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of the charge sheet ipso facto or the pendency of the trial can, by no means, be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analyzed to decide the needfulness of further investigation or re-investigation to unravel the truth and mete out justice to the parties. The prime concern and the endeavour of the court of law should be to secure justice on the basis of true facts which ought to be unearthed through a committed, resolved and a competent investigating agency.
48. The above principle has been reiterated in K.V. Rajendran v. Superintendent of Police, CBCID South Zone, Chennai, (2013) 12 SCC 480. Dr. B.S. Chauhan, J. speaking for a three- Judge Bench of this Court held: “13. …This Court has time and again dealt with the issue under what circumstances the investigation can be transferred from the State investigating agency to any other independent investigating agency like CBI. It has been held that the power of transferring such investigation must be in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instil confidence in the public mind, or where investigation by the State police lacks credibility and it is necessary for having “a fair, honest and complete investigation”, and particularly, when it is imperative to retain public confidence in the impartial working of the State agencies. …”
49. Elaborating on this principle, this Court further observed: “17. … the Court could exercise its constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency like CBI only in rare and exceptional cases. Such as where high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to instil confidence in the investigation or where the investigation is prima facie found to be tainted/biased.”
50. The Court reiterated that an investigation may be transferred to the CBI only in “rare and exceptional cases”. One factor that courts may consider is that such transfer is “imperative” to retain “public confidence in the impartial working of the State agencies.” This observation must be read with the observations made by the Constitution Bench in the case of Committee for Protection of Democratic Rights, West Bengal (supra), that mere allegations against the police do not constitute a sufficient basis to transfer the investigation.
51. In Romila Thapar v. Union of India, (2018) 10 SCC 753, one of us, A.M. Khanwilkar, J., speaking for a three-Judge Bench of this Court (Dr. D.Y. Chandrachud, J. dissenting) noted the dictum in a line of precedents laying down the principle that the accused “does not have a say in the matter of appointment of investigating agency”. In reiterating this principle, this Court relied upon its earlier decisions in Narmada Bai v. State of Gujarat, (2011) 5 SCC 79, Sanjiv Rajendra Bhatt v. Union of India, (2016) 1 SCC 1, E. Sivakumar v. Union of India, (2018) 7 SCC 365, and Divine Retreat Centre v. State of Kerala,
“30…the consistent view of this Court is that the accused cannot ask for changing the investigating agency or to do investigation in a particular manner including for court- monitored investigation.”
52. It has been held by this Court in CBI & another v. Rajesh Gandhi and another, 1997 Cr.L.J 63, that no one can insist that an offence be investigated by a particular agency. We fully agree with the view in the aforesaid decision. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice.
53. The principle of law that emerges from the precedents of this Court is that the power to transfer an investigation must be used “sparingly” and only “in exceptional circumstances”. In assessing the plea urged by the petitioner that the investigation must be transferred to the CBI, we are guided by the parameters laid down by this Court for the exercise of that extraordinary power.
54. Bearing in mind the position of law as discussed above, we now proceed to consider, whether in the facts of the present case, more particularly, from the materials on record, it has been prima facie established that it is a fit case for allowing the prayers of the writ petitioners for investigation by the CBI.
55. We are really taken by surprise that the learned senior counsel appearing for the writ petitioners is absolutely oblivious of the fact that all the FIRs were investigated by the concerned investigating agencies and, at the end of the investigation, charge sheets came to be filed in different courts of the State of Chhattisgarh for the offences under the IPC like murder, dacoity, etc.
56. We are of the view, having regard to the materials on record, that no case, worth the name for further investigation or re-investigation, could also be said to have been made out.
57. The filing of the charge sheets at the conclusion of the investigation into the various FIRs referred to above would indicate that the alleged massacre was at the end of the Naxalites (Maoists). The materials collected in the form of the charge sheets substantiate the case put up by the respondents that the villagers were attacked and killed by the Naxalites. There is not an iota of material figuring in the investigation on the basis of which even a finger can be pointed towards the members of the police force.
58. If we go by the tenor of the writ petition, it gives an impression that proper investigation is not being done and, therefore, the same should be handed over to the CBI. However, the fact is that the investigation has already been carried out and charge sheets have been filed. Unfortunately, neither the learned senior counsel appearing for the writ petitioners nor any of the writ petitioners, more particularly, the writ petitioner no.1, the protagonist behind the filing of the present writ petition, running an NGO, has any idea about the charge sheets and the materials collected in the course of the investigation. If the investigation has already been carried out and charge sheets have been filed and if the court has to now consider the plea of the writ petitioners, then the same would become a case of further investigation.
59. We shall highlight as to why we are saying so as above. We come back to the order passed by a Coordinate Bench of this Court dated 15th February 2010. Pursuant to the same, the statements of the petitioners were recorded by the District and Sessions Judge, Delhi. We may quote one such statement recorded by the District and Sessions Judge of the petitioner no.2, namely, Soyam Rama. We quote the entire statement as under: “Present: Petitioner No.1 Himansu Kumar alongwith Counsel Shri Colin Gonslaves. Sr. Advocate alongwith Shri Divya Jyoti, Advocate. Shri Atul Jha Advocate alongwith Shri D.K. Sinha Advocate, Counsel for State of Chattisgarh. Shri P.K. Dey, Advocate on behalf of UOI alongwith Shri Jitender, Advocate. Shri R.K. Tanwar, Addl. PP for Govt. of NCT of Delhi alongwith Shri Navin Kumar, Asstt.Public Prosecutor At 3:49 p.m., order dated 15.2.2010 passed by the Hon’ble Supreme Court in Writ Petition (Cr.) 103/09 titled as Himanshu Kumar & Ors vs. State of Chattishgarh, was received in my office titled as Himanshu Kr. & Ors. Before that, I had received a telephonic call from Mr. T.Sivadasan, Registrar (Judicial), informing me about the order passed by the Hon’ble Supreme Court. At about 5 pm., the file of the writ petition was received. Thereafter corrigendum of this order, wherein, name of petitioner No.8 was mentioned at page 2 of the order was also received. At about 6 pm the petitioners had reached my court No.301. The counsel for the parties aforementioned were also present. I have talked to the Counsels for the parties as well as petitioner No.1 in the court and have explained that I shall be talking to each of the petitioners. Except the petitioners, all the persons including the counsel were requested to move out of the court room. I got down from the dias and talked to the petitioners through petitioner No.1 Himanshu Kumar. I tried to make petitioners comfortable and served them with tea and biscuits. I have enquired from them if there was any fear or pressure from any quarter which they have negatived. I have told the petitioners present that I would be calling them one by one for the purpose of recording their statements in the adjoining Room No.302 in Tis Hazari Court. In the first instance, petitioner No.2 Shri Soyam Rama has been called. Apart from the abovenamed Counsel for the parties, petitioner No.1 Shri Himanshu Kumar and interpreter Shri Mohan Sinha have also been called in room No.302. Petitioner No.2 has been made to sit in the middle of the petitioner No.1 and Shri Mohan Sinha, the interpreters. Let statement of Sh. Soyam Rama be recorded. Question: What is your name ? Ans.: My name is Soyam Rama Question: Where do you stay? Ans. I am resident of village Gompad.
(I am satisfied that Shri Soyam Rama is not under any pressure coercion or terror to make the statement.) I feel that the statement being made by him is out of his free will. Let the statement be recorded on oath. The oath be also administered to both the interpreters. Statement of Shri Soyam Rama s/o Shri Soyam Kanna, aged 38 years r/o village Gopade, on S.A. (through interpreter Shri Mohan Sinha, in presence of petitioner Himanshu Kumar. Both the interpreters have also stated on oath that whatever shall be asked from the witness and his answers shall be interpreted correctly & truly). On. 1.10.2009, there was a firing in the house of my paternal uncle Madhvi Bajaar. In the firing, my paternal uncle Madvi Bajaar and paternal aunt Smt. Madvi Sudvi Subi and niece Madvi Muddi and Smt. Kartan Katti were killed. One more person, whose name I cannot tell, was also killed in the firing. We had run away from the spot and therefore, could not see as to who had opened fire. Question: Are you sure that this firing had taken place on 1.10.2009 or before that ? Ans. I am sure, the firing had taken place on 01.10.2009. Some other persons were also killed, but not in my presence. Question: Can you say, if any other weapon was used in the above mentioned killing or it was only by bullets ? Ans. In the first instance, the above named four persons were stabbed with knife and thereafter, they were shot with bullets. Question: Can you tell the description of the firearm if the same was a big gun or a pistol ? Ans. I cannot tell the same. I heard the shot and then ran away. Question: Who had caused the said injury and who had opened the fire ? Ans. The persons who stabbed the above stated persons and opened fire, had come from the Jungle. I ran away after the above stated persons were stabbed and fire was opened. Question: Would you be in a position to identify the assailants. Ans. I would not be in a position to identify them. Question: Do you want to say anything else. Ans. I do not want to say anything further. Left thumb impression of Sd/- Soyam Rama District Judge-I/Delhi 15.02.2010 Sh. G.P.MITTAL District Judge-I & Sessions Judge (We have interpreted the questions and answers truly and have gone through the statement of the witness recorded above. The same is correct Sd/- Sd/- (Himanshu Kumar) D.J.,-1/15-2-2010 Sh. G.P.MITTAL District Judge-I & Sessions Judge Sd/- (Mohan Sinha)” (emphasis supplied)
60. All other statements of the rest of the writ petitioners are on the same line and footing.
61. When we called upon Mr. Gonsalves to make us understand as to why his clients had to make such statements before the Judicial Officer, a very curious reply came from Mr. Gonsalves. According to Mr. Gonsalves, the entire mode and manner in which the statements were recorded by the Judicial Officer of the rank of District and Sessions Judge was absolutely incorrect. According to the learned senior counsel, specific questions ought to have been put by the Judicial Officer to each of the writ petitioners while recording their statements in accordance with the directions issued by this Court vide order dated 15th February 2010 referred to above.
62. We are afraid, we are not in a position to accept such submission after a period of almost 12 years. The statements we are referring to recorded by the Judicial Officer are of the year
2010. Not once in the last 12 years any grievance has been made either orally or in writing before this Court as regards the mode and manner of recording of the statements. It is for the first time in 12 years that such a grievance has been made. Had the writ petitioners raised such a plea at the appropriate time and contemporaneously as regards the mode and manner of the recording of the statements, this Court would have passed necessary orders asking the Judicial Officer to record the further statements in a particular manner. It is too late in the day now to cast any insinuations or aspersions against the Judicial Officer of the rank of District and Sessions Judge, who had acted under the directions of this Court.
63. What we are trying to convey is that the statements of the petitioners nos.[2] to 13 recorded before the Judicial Officer demolishes the entire case put up by the petitioner no.1, who is running an NGO.
64. It appears from the materials on record that all those persons who have been arraigned as accused and against whom charge sheets have been filed are absconding. It is now for the concerned trial court to take appropriate steps in this regard. If the persons named as accused in the charge sheets are absconding, then it is expected of the investigating agency to take necessary steps for their arrest. In any view of the matter, it is now for the trial court to do the needful in accordance with law.
65. In the overall view of the matter, we have reached to the conclusion that no case, worth the name, has been made out by the writ petitioners for any further investigation much less through an independent agency to be appointed by this Court. In the facts of the above case, we are of the view that the conditions laid down by this Court in the case of Committee for Protection of Democratic Rights, West Bengal (supra) quoted earlier are not fulfilled.
66. The writ petition accordingly fails and is hereby rejected with exemplary costs of Rs. 5,00,000/- (Rupees Five Lakh Only). The requisite amount towards the costs shall be paid by the petitioner no.1 viz. Himanshu Kumar. The petitioner no.1 shall deposit the amount with the Supreme Court Legal Services Authority within a period of 4 weeks from today; failing which, it shall be open for the authority concerned to take appropriate steps in accordance with law for the recovery of the requisite amount. Pending application, if any, stands disposed of.
INTERLOCUTORY APPLICATION NO. 52290 OF 2022
67. This is an application at the instance of the Union of India with the following prayers: “(a) Hold the petitioners guilty of leveling false charges of offence and of giving false and fabricated evidence before this Hon’ble Court with an intention to procure conviction for a capital offence or for life imprisonment against the personnel of security forces and to screen off the actual offenders of Left Wing (Naxal) terrorism; (b) Pass an order directing CBI/NIA or any other central investigating agency or any other monitoring committee, as this Hon’ble Court deems fit and proper, to register an FIR and conduct an in-depth investigation to identify the individuals/organizations, who have been conspiring, abetting and facilitating filing of petitions premised on false and fabricated evidence before this Hon’ble Court as well as before the Hon’ble High Courts with a motive to either deter the security agencies to act against the Left Wing (Naxal) militia by imputing false charges on them or to screen off the Left Wing (Naxal) militia from being brought to justice by creating a false narrative of victimization before the Hon’ble Courts;
(c) And direct appropriate action against the
(d) Pass any other just and reasonable orders to meet the ends of justice.”
68. We have closely looked into the averments made in the Interlocutory Application.
69. Mr. Tushar Mehta, the learned Solicitor General has pressed this application very hard.
70. Although no particular nomenclature has been given to this application, yet it is apparent that the same is under Section 340 of the Code of Criminal Procedure, 1973 (for short, “the CrPC”) read with Section 195 of the CrPC. The Union of India wants this Court to initiate appropriate proceedings against the writ petitioners for the offence of perjury punishable under Section 193 of the IPC. The Union of India vehemently asserts that the writ petitioners are guilty of levelling false charges of various offences and could be said to have fabricated evidence before this Court in a judicial proceedings. The Union of India asserts that the writ petitioner no.1 has affirmed the false averments made in the writ petition on oath. He could be said to have made a false affidavit. The making of false affidavit and giving false evidence comes within the purview of Section 191 of the IPC.
71. Before we proceed to examine this application filed by the Union of India, we must look into few averments made therein: “4. Shockingly, in the petition, the petitioner had portrayed the incidents of 17.9.2009 and 1.10.2009, as an act of not restricted to extra judicial killings, but had sought to portray such acts as act of barbarianism committed by security forces, where the. special operation teams of police and paramilitary forces were alleged to have indulged into torturing, looting and outraging the modesty of family members of those encountered. The Petitioners had, thus, on affidavit, narrated incidents alleging it to be gruesome killings and massacres of innocent tribal villagers on 17.9.2009 and 1.10.2009, in the petition. It is pertinent to mention here that the acts of torture and killings of the villagers have been pleaded to be of such beastly and horrific nature, so as to invoke and instigate an instantaneous response of outrage by this Hon’ble Court, undeniably leading to grant of relief/interim relief as prayed in the petition. In pith and substance, the reliefs prayed were of the nature where operations of security forces were sought to be halted and Left Wing Extremists were sought to be granted legal protection under the narrative of victimization.
8. It is respectfully submitted that a bare perusal of the recordings etc. submitted by the Ld. District Judge before this Hon'ble Court reveals that all the averments made by the petitioner in the petition were ex-facie false and fabricated and it is now clear that all the said deceitful averments were made by the petitioner with malicious and audacious attempt to mislead this Hon'ble court and to obtain orders from this court by playing fraud on its conscience and magnanimity.
9. In the respectful submission of the applicant, it is apparent that the said insolent false averments were made with a malafide objective to change the narrative of the incident and with malicious designs i.e. to portray the dreaded Left Wing Extremists (Naxals), who were waging an armed rebellion against the security forces of the country and threatening the sovereignty and integrity of the country, as innocent tribal victims being massacred by the security forces.
10. This was done with a deceitful design to instigate an instantaneous response of outrage by this Hon’ble Court and mislead it to pass adverse orders against security forces under an erroneous assumption of facts causing an adverse and deterrent effect on the operations and morale of the security forces. It is submitted that the modus adopted in the instant case, has over the period of time, become a norm where false petitions are filed by individuals and organization who are either supporters of Left Wing Extremism or benefit, financially and politically, from Left Wing Extremist activities and protective orders are obtained from the courts by playing fraud. Further absence of a stern action being taken against them for playing fraud on the court has embolden them who have now made a practice of filing such false and vexatious petitions based on self-serving/selfgenerated fact finding reports.
11. Aposteriori, it has become clear that this false narrative of a massacre of innocent tribals by security forces was created to somehow achieve immediate cessation of advancement of the security forces against the cornered armed Left Wing Extremists. The said object was sought to be achieved, and was in fact achieved by the petitioner, by misleading this Hon'ble Court and by seeking adverse orders against security forces by portraying false facts/ picture before the court and by playing fraud on this Hon'ble Court.
12. In addition to the same the purpose and motive of the present petition was also to derail the ongoing efforts of security forces in neutralizing the Left Wing Extremism movement and the armed Left Wing Extremists; to take away the dignity and credibility of security forces and the attempts made by them to neutralize the armed rebellion by Left Wing Extremists; to lower the moral of the security agencies by portraying them as demons and national villains, i.e. slayers of innocent tribal people; and to foist false cases on them so that in future the said false cases acts as a deterrent and chilling factor for the rest of the members of the armed forces in planning or participating in a similar operations. It is submitted that all this was done before the highest court of the country and at the altar of the national security. This was a fraud played on the constitutional remedies and an abuse thereof of the highest order.
13. In effect in the respectful submission of the applicant/UOI, it is now also apparent that the present ex-facie false and fraudulent petition was filed to deceit this Hon'ble court and to provide a legal protective shield to the members of Left Wing Extremist outfits. In the respectful submission of the applicant the present petition is nothing but a subterfuge and a part of the conspiracy to cover the offence committed by the Left Wing Extremists and to facilitate unhindered future operations by weakening the security forces which is the only challenge deterring their intentions and operations. The petitioners, in the respectful submission of the applicant, by preferring the instant deceitful petition, have not only conspired and abetted the commissioning of the crime but have also conspired and abetted in covering up the crime and screening the offenders/perpetrators of Left Wing (Naxal) terrorism.
14. It is submitted that scurrilous allegations made against the security personnel of the country have nevertheless has brought about a chilling effect of demoralizing the esprit de corps and self-esteem of the members of the forces, which has been since then acted against national interests.
15. In this perspective, when it is manifested that the present petition was nothing but a fraud on this Hon'ble court, where orders were sought to be obtained from this Hon'ble court through deceitful designs/fabricated and false assertions, it has become incumbent and imperative, both in the interest of justice, as well as, in the interest of security of the nation that the people and organizations involved in playing fraud on constitutional remedies and on whose instance false affidavits, pleadings and evidence have been submitted before this Hon'ble Court are identified and appropriate criminal action is initiated against them. This is necessary to serve as a deterrent against repeating such modus.
22. It is submitted that in the process, the security personal have been made scapegoats to bear the brunt of false accusations. It is an admitted fact that rarely does any individual security personal comes forward to contest such allegations, since their service protocol deters them from doing so. Unwittingly and unfairly, they become easy targets of such accusations leading to a resigned acceptance of such blemishes as an incident of duty. Such an environment for the functioning of security apparatus in any country is extremely undesirable and in fact dangerous for the security of the nation and its people. The trust reposed by the society in the police and other security personal is coveted and necessary for the smooth functioning of any administration. The law enforcement machinery is not and cannot appear to be blemished. Moreover, it is also a fact that wherever any such machinery is found to be indulging in illegal or irregular activities, this Hon’ble Court and other courts have been prompt and undeterred in taking action against such personal. However, there is an expedient and urgent need to guard against irresponsible, unjustified and by far, brazen false accusations against the security personal.”
POSITION OF LAW: “Indian Penal Code Section 191. Giving false evidence.—Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence. Section 192. Fabricating false evidence.—Whoever causes any circumstance to exist or makes any false entry in any book or record, or electronic record or makes any document containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said to “to fabricate false evidence”. Section 193. Punishment for false evidence. - Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.” Code of Criminal Procedure, 1973 Section 195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.—(1) No Court shall take cognizance- (a)........... … (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in subclause (i) or sub-clause (ii), except on the complaint in writing of that Court, or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate. Section 340. Procedure in cases mentioned in section 195. — (1) When upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,- (a) record a finding to that effect; (b) make a complaint thereof in writing;
(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. Thus, from the above, it follows that there are two conditions, on fulfillment of which, a complaint can be filed against a person who has given a false affidavit or evidence in a proceeding before a court. The first condition being that a person has given a false affidavit in a proceeding before the court and, secondly, in the opinion of the court it is expedient in the interest of justice to make an inquiry against such a person in relation to the offence committed by him.
73. In K. Karunakaran v. T.V. Eachara Warrier and another, reported in AIR 1978 SC 290, this Court held in paragraphs 19, 20 and 21 as under: “19. Chapter XXVI of the Code of Criminal Procedure 1973 makes provisions as to offences affecting the administration of justice. Sec. 340, Cr.P.C, with which the chapter opens is the equivalent of the old Section 476 of the Criminal Procedure Code, 1898. The chapter has undergone one significant change with regard to the provision of appeal which was there under the old section 476-B, Cr.P.C. Under Section 476-B, Cr.P.C. (old) there was a right of appeal from the order of a subordinate court to the superior court to which appeals ordinarily lay from an appealable decree or sentence of such former court. Under Section 476-B (old) there would have ordinarily been a right of appeal against the order of the High Court to this Court. There is, however, a distinct departure from that position under Section 341, Cr.P.C. (new) with regard to an appeal against the order of a High Court under Section 340 to this Court. An order of the High Court made under sub-section (1) or sub-section (2) of Section 340 is specifically excluded for the purpose of appeal to the superior court under Section 341 (1), Cr.P.C (new). This is, therefore, a new restriction in the way of the appellant when he approaches this Court under Article 136 of the Constitution.
20. Whether, suo motu, or on an application by a party under Section 340 (1), Cr.P.C., a court having been already seized of a matter may be tentatively of opinion that further action against some party or witness may be necessary in the interest of justice. In a proceeding under Section 340 (1), Cr.P.C, the reasons recorded in the principal case, in which a false statement has been made, have a great bearing and indeed action is taken having regard to the overall opinion formed by the court in the earlier proceedings.
21. At an enquiry held by the court under Section 340 (1), Cr.P.C, irrespective of the result of the main case, the only question is whether a prima facie case is made out which, if unrebutted, may have a reasonable likelihood to establish the specified offence and whether it is also expedient in the interest of justice to take such action.”
74. In Baban Singh and another v. Jagdish Singh and others, reported in AIR 1967 SC 68, this Court observed the following in paragraph 7 as under: “7. The matter has to be considered from three stand points. Does the swearing of the false affidavits amount to an offence under S.199, Indian Penal Code or under either Ss.191 or 192, Indian Penal Code? If it comes under the two latter sections, the present prosecution cannot be sustained, Section 199 deals with a declaration and does not state that the declaration must be on oath. The only condition necessary is that the declaration must be capable of being used as evidence and which any Court of justice or any public servant or other person, is bound or authorized by law to receive as evidence. Section 191 deals with evidence on oath and S.192 with fabricating false evidence. If we consider this matter from the standpoint of S.191, Indian Penal Code the offence is constituted by swearing falsely when one is bound by oath to state the truth because an affidavit is a declaration made under an oath. The definition of the offence of giving false evidence thus applies to the affidavits. The offence may also fall within S.192. It lays down inter alia that a person is said to fabricate false evidence if he makes a document containing a false statement intending that such false statement may appear in evidence in a judicial proceeding and so appearing in evidence may cause any person who, in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding. When Baban Singh and Dharichhan Kuer made declarations in their affidavits which were tendered in the High Court to be taken into consideration, they intended the statements to appear in evidence in a judicial proceeding, and so appearing, to cause the Court to entertain an erroneous opinion regarding the compromise. In this way their offence came within the words of Ss. 191/192 rather than S.199 of the Indian Penal Code. They were thus prima facie guilty of an offence of giving false evidence or of fabricating false evidence for the purpose of being used in a judicial proceeding.”
75. The law under Section 340 of the CrPC on initiating proceedings has been laid down in several of our judgments. Thus in Chajoo Ram v. Radhey Shyam, (1971) 1 SCC 774, this Court, in para 7, stated as under: “7. … No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge.”
76. Similarly in Chandrapal Singh and Others v. Maharaj Singh and Another, (1982) 1 SCC 466, this Court, in para 14, stated as under: “14. That leaves for our consideration the alleged offence under Section 199. Section 199 provides punishment for making a false statement in a declaration which is by law receivable in evidence. We will assume that the affidavits filed in a proceeding for allotment of premises before the Rent Control Officer are receivable as evidence. It is complained that certain averments in these affidavits are false though no specific averment is singled out for this purpose in the complaint. When it is alleged that a false statement has been made in a declaration which is receivable as evidence in any Court of Justice or before any public servant or other person, the statement alleged to be false has to be set out and its alleged falsity with reference to the truth found in some document has to be referred to pointing out that the two situations cannot co-exist, both being attributable to the same person and, therefore, one to his knowledge must be false. Rival contentions set out in affidavits accepted or rejected by courts with reference to onus probandi do not furnish foundation for a charge under Section 199, I.P.C. To illustrate the point, appellant-1 Chandrapal Singh alleged that he was in possession of one room forming part of premises No. 385/2. The learned Additional District Judge after scrutinising all rival affidavits did not accept this contention. It thereby does not become false. The only inference is that the statement made by Chandrapal Singh did not inspire confidence looking to other relevant evidence in the case. Acceptance or rejection of evidence by itself is not a sufficient yardstick to dub the one rejected as false. Falsity can be alleged when truth stands out glaringly and to the knowledge of the person who is making the false statement. Day in and day out, in courts averments made by one set of witnesses are accepted and the counter averments are rejected. If in all such cases complaints under Section 199, I.P.C. are to be filed not only there will open up floodgates of litigation but it would unquestionably be an abuse of the process of the Court. The learned Counsel for the respondents told us that a tendency to perjure is very much on the increase and unless by firm action courts do not put their foot down heavily upon such persons the whole judicial process would come to ridicule. We see some force in the submission but it is equally true that chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal court. Complainant herein is an Advocate. He lost in both courts in the rent control proceedings and has now rushed to the criminal court. This itself speaks volumes. Add to this the fact that another suit between the parties was pending from 1975. The conclusion is inescapable that invoking the jurisdiction of the criminal court in this background is an abuse of the process of law and the High Court rather glossed over this important fact while declining to exercise its power under Section 482, Cr. P.C.”
77. Both the aforesaid judgments were referred to and relied upon with approval in R.S. Sujatha v. State of Karnataka and Others, (2011) 5 SCC 689. This Court, after setting down the law laid down in these two judgments concluded: “18. Thus, from the above, it is evident that the inquiry/contempt proceedings should be initiated by the court in exceptional circumstances where the court is of the opinion that perjury has been committed by a party deliberately to have some beneficial order from the court. There must be grounds of a nature higher than mere surmise or suspicion for initiating such proceedings. There must be distinct evidence of the commission of an offence by such a person as mere suspicion cannot bring home the charge of perjury. More so, the court has also to determine as on facts, whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed.”
78. It is clear through from a reading of the aforesaid judgments that there should be something deliberate - a statement should be made deliberately and consciously which is found to be false as a result of comparing it with unimpeachable evidence, documentary or otherwise.
79. It is true that an affidavit is ‘evidence’ within the meaning of Section 191 of the IPC and a person swearing to a false affidavit is guilty of perjury. But the matter does not rest here. Before initiating the proceedings for perjury, the court concerned has to consider whether it would be expedient in the interest of justice to sanction such prosecution. What the courts have to see at this stage is whether there is evidence in support of the allegations made by the Union of India (respondent herein) to justify the initiation of proceedings against the writ petitioners, more particularly, the writ petitioner no.1 herein who had filed the affidavit on behalf of himself and the other writ petitioners and not whether the evidence is sufficient to warrant his conviction. However, this does not mean that the court should not prima facie be of the opinion that there are sufficient and reasonable grounds for setting the machinery of criminal law in motion against the accused. As noted above, the Court has further to see that the false statement was deliberate and conscious and the conviction is reasonably probable or likely. In other words, before sanctioning the prosecution there must be a prima facie case of a falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge. (see S.P. Kohli v. High Court of Punjab & Haryana, AIR 1978 SC 1753)
80. This Court, in the case of Muthu Karuppan, Commissioner of Police, Chennai v. Parithi Ilamvazhuthi and another, reported in (2011) 5 SCC 496, has held as under: “15. Giving false evidence by filing false affidavit is an evil which must be effectively curbed with a strong hand. Prosecution should be ordered when it is considered expedient in the interest of justice to punish the delinquent, but there must be a prima facie case of "deliberate falsehood" on a matter of substance and the court should be satisfied that there is a reasonable foundation for the charge.
16. In a series of decisions, this Court held that the enquiry/contempt proceedings should be initiated by the court in exceptional circumstances where the court is of the opinion that perjury has been committed by a party deliberately to have some beneficial order from the court. There must be grounds of a nature higher than mere surmise or suspicion for initiating such proceedings. There must be distinct evidence of the commission of an offence by such a person as mere suspicion cannot bring home the charge of making false statement, more so, the court has to determine as on facts whether it is expedient in the interest of justice to enquire into offence which appears to have been committed.”
81. Section 340 of the CrPC came up for the consideration before a three-Judge Bench of this Court in the case of Pritish v. State of Maharashtra, (2002) 1 SCC 253. In Pritish (supra), this Court was called upon to consider, whether it is mandatory on the part of the court to make a preliminary inquiry under Section 340 of the CrPC before filing a complaint under Section 195 of the CrPC and further, whether the court is required to afford an opportunity of hearing to the person against whom a complaint is filed before a Magistrate for initiating prosecution proceedings. This Court took the view that an opportunity to the would be accused before the filing of the complaint was not mandatory, and observed that the preliminary inquiry was itself not mandatory. The Court observed thus: “9. Reading of the sub-section makes it clear that the hub of this provision is formation of an opinion by the court (before which proceedings were to be held) that it is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed. In order to form such opinion the court is empowered to hold a preliminary inquiry. It is not peremptory that such preliminary inquiry should be held. Even without such preliminary inquiry the court can form such an opinion when it appears to the court that an offence has been committed in relation to a proceeding in that court. It is important to notice that even when the court forms such an opinion it is not mandatory that the court should make a complaint. This subsection has conferred a power on the court to do so. It does not mean that the court should, as a matter of course, make a complaint. But once the court decides to do so, then the court should make a finding to the effect that on the fact situation it is expedient in the interest of justice that the offence should further be probed into. If the court finds it necessary to conduct a preliminary inquiry to reach such a finding it is always open to the court to do so, though absence of any such preliminary inquiry would not vitiate a finding reached by the court regarding its opinion. It should again be remembered that the preliminary inquiry contemplated in the sub-section is not for finding whether any particular person is guilty or not. Far from that, the purpose of preliminary inquiry, even if the court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed.
10. “Inquiry” is defined in Section 2(g) of the Code as “every inquiry, other than a trial, conducted under this Code by a Magistrate or court”. It refers to the pre-trial inquiry, and in the present context it means the inquiry to be conducted by the Magistrate. Once the court which forms an opinion, whether it is after conducting the preliminary inquiry or not, that it is expedient in the interest of justice that an inquiry should be made into any offence the said court has to make a complaint in writing to the Magistrate of the First Class concerned. As the offences involved are all falling within the purview of “warrant case” [as defined in Section 2(x)] of the Code the Magistrate concerned has to follow the procedure prescribed in Chapter XIX of the Code. In this context we may point out that Section 343 of the Code specifies that the Magistrate to whom the complaint is made under Section 340 shall proceed to deal with the case as if it were instituted on a police report. That being the position, the Magistrate on receiving the complaint shall proceed under Section 238 to Section 243 of the Code.
11. Section 238 of the Code says that the Magistrate shall at the outset satisfy himself that copies of all the relevant documents have been supplied to the accused. Section 239 enjoins on the Magistrate to consider the complaint and the documents sent with it. He may also make such examination of the accused, as he thinks necessary. Then the Magistrate has to hear both the prosecution and the accused to consider whether the allegations against the accused are groundless. If he finds the allegations to be groundless he has to discharge the accused at that stage by recording his reasons thereof. Section 240 of the Code says that if the Magistrate is of opinion, in the aforesaid inquiry, that there is ground for presuming that the accused has committed the offence he has to frame a charge in writing against the accused. Such charge shall then be read and explained to the accused and he shall be asked whether he pleads guilty of the offence charged or not. If he pleads not guilty then the Magistrate has to proceed to conduct the trial. Until then the inquiry continues before the Magistrate.
12. Thus, the person against whom the complaint is made has a legal right to be heard whether he should be tried for the offence or not, but such a legal right is envisaged only when the Magistrate calls the accused to appear before him. The person concerned has then the right to participate in the pre-trial inquiry envisaged in Section 239 of the Code. It is open to him to satisfy the Magistrate that the allegations against him are groundless and that he is entitled to be discharged.
13. The scheme delineated above would clearly show that there is no statutory requirement to afford an opportunity of hearing to the persons against whom that court might file a complaint before the Magistrate for initiating prosecution proceedings. Learned counsel for the appellant contended that even if there is no specific statutory provision for affording such an opportunity during the preliminary inquiry stage, the fact that an appeal is provided in Section 341 of the Code, to any person aggrieved by the order, is indicative of his right to participate in such preliminary inquiry.
14. Section 341 of the Code confers a power on the party on whose application the court has decided or not decided to make a complaint, as well as the party against whom it is decided to make such complaint, to file an appeal to the court to which the former court is subordinate. But the mere fact that such an appeal is provided, it is not a premise for concluding that the court is under a legal obligation to afford an opportunity (to the persons against whom the complaint would be made) to be heard prior to making the complaint. There are other provisions in the Code for reaching conclusions whether a person should be arrayed as accused in criminal proceedings or not, but in most of those proceedings there is no legal obligation cast on the court or the authorities concerned, to afford an opportunity of hearing to the would-be accused. In any event the appellant has already availed of the opportunity of the provisions of Section 341 of the Code by filing the appeal before the High Court as stated earlier. x x x x
18. We are unable to agree with the said view of the learned Single Judge as the same was taken under the impression that a decision to order inquiry into the offence itself would prima facie amount to holding him, if not guilty, very near to a finding of his guilt. We have pointed out earlier that the purpose of conducting preliminary inquiry is not for that purpose at all. The would-be accused is not necessary for the court to decide the question of expediency in the interest of justice that an inquiry should be held. We have come across decisions of some other High Courts which held the view that the persons against whom proceedings were instituted have no such right to participate in the preliminary inquiry (vide M.Muthuswamy v. Special Police Establishment [1985 Cri LJ 420 (Mad)]).” (emphasis supplied)
82. In M.S. Sheriff and Another v. State of Madras and Others, AIR 1954 SC 397, a Constitution Bench of this Court said that no expression on the guilt or innocence of persons should be made by court while passing an order under Section 340 of CrPC. An exercise at that stage is not for finding whether any offence was committed or who committed the same. The scope is confined to see whether the court could then decide on the materials available that the matter requires inquiry by a criminal court and that it is expedient in the interest of justice to have it inquired into. This decision of the Constitution Bench has also been followed in Pritish (supra) observing that the court, when decides to make a complaint under Section 340, is not to record finding of guilt or innocence of person against whom complaint is to be made before a Magistrate.
83. We may also refer and reply upon the decision of this Court in the case of Aarish Asgar Qureshi v. Fareed Ahmed Qureshi and another, reported in (2019) 18 SCC 172, wherein this Court discussed and explained the necessary requirements for the purpose of initiation of proceeding under Section 340 read with Section 195(1)(b) of the CrPC. This Court laid much emphasis on two words namely “deliberate” and “intentional”. This Court talked about the requirement of impeachable evidence for the purpose of initiation of proceedings. In other words, this Court took the view that a statement should be made deliberately and consciously and the same should be found to be false as a result of comparing it with unimpeachable evidence, documentary or otherwise. We quote the relevant observations made by this Court:- “10. It is clear therefore from a reading of these judgments that there should be something deliberate a statement should be made deliberately and consciously which is found to be false as a result of comparing it with unimpeachable evidence, documentary or otherwise. In the facts of the present case, it is clear that the statement made in the anticipatory bail application cannot be tested against unimpeachable evidence as evidence has not yet been led. Moreover, the report dated 12.11.2011 being a report, which is in the nature of a preliminary investigation report by the investigating officer filed only two days after the F.I.R. is lodged, can in no circumstances be regarded as unimpeachable evidence contrary to the statements that have been made in the anticipatory bail application. …” (emphasis supplied)
84. However, in the subsequent decision in the case of Sharad Pawar v. Jagmohan Dalmiya, (2010) 15 SCC 290, while dealing with a similar question as above, a three-Judge Bench of this Court went on to observe as follows: “7. Having heard the learned Senior Counsel for both sides and after perusal of the record, we are of the considered view that before giving a direction to file complaint against Defendants 1 to 6, it was necessary for the learned Single Judge to conduct a preliminary enquiry as contemplated under Section 340 CrPC and also to afford an opportunity of being heard to the defendants, which was admittedly not done.
8. We, therefore, in the interest of justice, allow these appeals, set aside the impugned order of the High Court passed in the application filed by Respondent 1plaintiff under Section 340 CrPC and remit the matter to the learned Single Judge to decide the application under Section 340 CrPC afresh in accordance with law, and after affording reasonable opportunity of being heard to the defendants, against whom the learned Single Judge ordered enquiry.”
85. Later, the judgment in Pritish (supra) came to be relied upon by a two Judges Bench of this Court in Amarsang Nathaji (supra). While dealing with the propriety of the procedure adopted by the court making a complaint under Section 340 of the CrPC, the Bench in Amarsang Nathaji observed as follows: “7. In the process of formation of opinion by the court that it is expedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been committed. It is open to the court to hold a preliminary inquiry though it is not mandatory. In case, the court is otherwise in a position to form such an opinion, that it appears to the court that an offence as referred to under Section 340 CrPC has been committed, the court may dispense with the preliminary inquiry. Even after forming an opinion as to the offence which appears to have been committed also, it is not mandatory that a complaint should be filed as a matter of course. (See Pritish v. State of Maharashtra [Pritish v. State of Maharashtra,
86. The conflict between the two decisions of this Court of equal strength, i.e. Pritish (supra) and Sharad Pawar (supra), was taken notice of by this Court in the case of the State of Punjab v. Jasbir Singh, (2020) 12 SCC 96. A Bench of two Judges of this Court ultimately thought fit to refer the question to a Larger Bench. The Court observed as under: “14. In any event, given that the decision of the three-Judge Bench in Sharad Pawar (supra) did not assign any reason as to why it was departing from the opinion expressed by a Coordinate Bench in Pritish (supra) regarding the necessity of a preliminary inquiry under Section 340 of the CrPC, as also the observations made by a Constitution Bench of this Court in Iqbal Singh Marwah (supra), we find it necessary that the present matter be placed before a larger Bench for its consideration, particularly to answer the following questions: 14.[1] (i) Whether Section 340 of the Code of Criminal Procedure, 1973 mandates a preliminary inquiry and an opportunity of hearing to the would-be accused before a complaint is made under Section 195 of the Code by a Court ? 14.[2] (ii) What is the scope and ambit of such preliminary inquiry ?”
87. It appears that the reference on the aforesaid two questions to a larger Bench is still pending.
88. However, we do not intend to dwell upon any further in the aforesaid context i.e. whether it would be expedient in the interests of justice to proceed against the writ petitioners for perjury. We are saying so as we do not want to precipitate this issue any further. We have said in so many words that this is a very serious matter as it relates directly to the security of the nation.
89. In the aforesaid context, we have something else in mind. We propose to look into Section 211 of the IPC. Section 211 of the IPC is extracted hereunder:- “Section 211. False charge of offence made with intent to injure.—Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; and if such criminal proceeding be instituted on a false charge of an offence punishable with death, [imprisonment for life], or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
90. The essential ingredients for invoking Section 211, I.P.C. are that the complaint must have falsely charged a person with having committed an offence. The complainant, at the time of giving the complaint must have known that there is no just or lawful ground for making a charge against the person. This complaint must have been given with an intention to cause injury to a person.
91. The CrPC does not define what constitutes the making of a "charge" of an offence or what amounts to the "institution of criminal proceedings". But, in our opinion, a false "charge" in this Section must not be understood in any restricted or technical sense, but in its ordinary meaning, of a false accusation made to any authority bound by law to investigate it or to take any steps in regard to it, such as giving information of it to the superior authorities with a view to investigation or other proceedings, and the institution of criminal proceedings includes the setting of the criminal law in motion. The nature of both expressions, and the difference between them has been explained in lucid terms in the decision of the Full Bench of the Calcutta High Court in the case of Karim Buksh v. Queen Emp, 17 C. 574. It points out that there may be a charge which does not amount to the institution of criminal proceedings "and there may be criminal proceedings which do not necessarily involve a charge" of any offence. As an illustration of the former it points out that a charge made to the Judge of a Civil Court or to public officers of other kinds, in order to obtain sanction to prosecute may well be a charge "but is not the institution of criminal proceedings". It further points out that an aggrieved person may seek to put the criminal law in motion either by making a charge or in the language of the Code giving information to the Police (Section 154 CrPC) "or he may" lay a charge, or as the Code calls it, a complaint (Section 190 CrPC) before a Magistrate”.
92. We are referring to Section 211 of the IPC as above keeping in mind the fact that the first information reports lodged by the writ petitioners at the different police stations were investigated and at the end of the investigation, the investigating agency reached to the conclusion that the police force had no role to play, rather Naxals were responsible for the massacre. Prima facie, it could be said that false information was given by the first informants to the police as regards the alleged massacre by the police force.
93. The essential to be satiated in order to attract the offence under Section 211 of the IPC was elucidated by this Court in in Santokh Singh & Ors. v. Izhar Hussan & Anr., (1973) 2 SCC 406. The relevant paragraph is extracted hereinunder: “10. … This section as its marginal note indicates renders punishable false charge of offence with intent to injure. The essential ingredient of an offence under Section 211 IPC is to institute or cause to be instituted any criminal proceeding against a person with intent to cause him injury or with similar intent to falsely charge any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge. Instituting or causing to institute false criminal proceedings assume false charge but false charge may be preferred even when no criminal proceedings result. It is frankly conceded by Shri Kohli that the appellant cannot be said to have instituted any criminal proceeding against any person. So that part of Section 211 IPC is eliminated. Now, the expression “falsely charges” in this section, in our opinion, cannot mean giving false evidence as a prosecution witness against an accused person during the course of a criminal trial. To “falsely charge” must refer to the original or initial accusation putting or seeking to put in motion the machinery of criminal investigation and not when speaking to prove the false charge by making deposition in support of the charge framed in that trial. The words “falsely charges” have to be read along with the expression “institution of criminal proceeding”. Both these expressions, being susceptible of analogous meaning should be understood to have been used in their cognate sense. They get as it were their colour and content from each other. They seem to have been used in a technical sense as commonly understood in our criminal law. The false charge must, therefore, be made initially to a person in authority or to someone who is in a position to get the offender punished by appropriate proceedings. In other words, it must be embodied either in a complaint or in a report of a cognizable offence to the police officer or an officer having authority over the person against whom the allegations are made. The statement in order to constitute the “charge” should be made with the intention and object of setting criminal law in motion. …”.
94. Thus, as explained by this Court in Santokh Singh v. Izhar Hussain (supra), the essential ingredient of an offence under Section 211 IPC is to institute or cause, to be instituted any criminal proceeding against a person with intent to cause him injury or with similar intent to falsely charge any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge. Instituting or causing to institute false criminal proceedings assume false charge but false charge may be preferred even when no criminal proceedings result. Now, the expression “falsely charges” in this section, in our opinion, cannot mean giving false evidence as a prosecution witness against an accused person during the course of a criminal trial. “To falsely charge” must refer to the original or initial accusation putting or seeking to put in motion the machinery of criminal investigation and not when seeking to prove the false charge by making deposition in support of the charge framed in that trial. The words “falsely charges” have to be, read along with the expression “institution of criminal proceeding”. Both these expressions, being susceptible of analogous meaning should be understood to have been used in their cognate sense. They get as it were their colour and content from each other. They seem to have been used in a technical sense as commonly understood in our criminal law. The false charge must, therefore, be made initially to a person in authority or to someone who is in a position to get the offender punished by appropriate proceedings. In other words, it must be’ embodied either in a complaint or in a report of a cognizable offence to the police officer or to an officer having authority over the person against whom the allegations are made. The statement in order to constitute the “charges” should be made with the intention and object of setting criminal law in motion.
95. Thus, we leave it to the State of Chhattisgarh/CBI (Central Bureau of Investigation) to take appropriate steps in accordance with law as discussed above in reference to the assertions made in the interim application. We clarify that it shall not be limited only to the offence under Section 211 of the IPC. A case of criminal conspiracy or any other offence under the IPC may also surface. We may not be understood of having expressed any final opinion on such action/proceedings. We leave it to the better discretion of the State of Chhattisgarh/CBI to act accordingly keeping in mind the seriousness of the entire issue. Thus, the relief prayed for in terms of Para 67(b) hereinabove, of the subject interlocutory application is hereby granted.
96. We have not remained oblivious of Section 195 CrPC while discussing the aforesaid. We make it clear that having regard to the facts of the present case the bar of Section 195 CrPC would not apply if ultimately the State of Chhattisgarh/CBI decides to take appropriate action in accordance with law as discussed above. The issue is no longer res integra in view of the decision of this Court in M.L. Sethi v. R.P. Kapur, reported in AIR 1967 SC 528, wherein this Court observed as under: “10. In the interpretation of this clause (b) of subsection (1) of Section 195, considerable emphasis has been laid before us on the expression “in, or in relation to”, and it has been urged that the use of the expression “in relation to” very considerably widens the scope of this section and makes it applicable to cases where there can even in future be a proceeding in any court in relation to which the offence under Section 211 IPC, may be alleged to have been committed. A proper interpretation of this provision requires that each ingredient in it be separately examined. This provision bars taking of cognizance if all the following circumstances exist viz. (1) that the offence in respect of which the case is brought falls under Section 211 IPC; (2) that there should be a proceeding in any court; and (3) that the allegation should be that the offence under Section 211 was committed in, or in relation to, such a proceeding. Unless all the three ingredients exist, the bar under Section 195(1)(b) against taking cognizance by the Magistrate, except on a complaint in writing of a court, will not come into operation. In the present case also, therefore, we have to see whether all these three ingredients were in existence at the time when the Judicial Magistrate at Chandigarh proceeded to take cognizance of the charge under Section 211 IPC against the appellant.
11. There is, of course, no doubt that in the complaint before the Magistrate a charge under Section 211 IPC, against the appellant was included, so that the first ingredient clearly existed. The question on which the decision in the present cases hinges is whether it can be held that any proceeding in any court existed when that Magistrate took cognizance. If any proceeding in any court existed and the offence under Section 211 IPC, in the complaint filed before him was alleged to have been committed in such a proceeding, or in relation to any such proceeding, the Magistrate would have been barred from taking cognizance of the offence. On the other hand, if there was no proceeding in any court at all in which, or in relation to which, the offence under Section 211 could have been alleged to have been committed, this provision barring cognizance would not be attracted at all. 12. In this case, as we have already indicated when enumerating the facts, the complaint of which cognizance was taken by the Judicial Magistrate at Chandigarh was filed on April 11, 1959 and at that stage, the only proceeding that was going on was investigation by the police on the basis of the First Information Report lodged by the appellant before the Inspector-General of Police on December 10, 1958. There is no mention at all that there was, at that stage, any proceeding in any court in respect of that FIR When examining the question whether there is any proceeding in any court, there are three situations that can be envisaged. One is that there may be no proceeding in any court at all. The second is that a proceeding in a court may actually be pending at the point of time when cognizance is sought to be taken of the offence under Section 211 IPC. The third is that, though there may be no proceeding pending in any court in which, or in relation, to which the offence under Section 211 IPC could have been committed, there may have been a proceeding which had already concluded and the offence under Section 211 may be alleged to have been committed in, or in relation to, that proceeding. It seems to us that in both the latter two circumstances envisaged above, the bar to taking cognizance under Section 195(1)(b) would come into operation. If there be a proceeding actually pending in any court and the offence under Section 211 IPC is alleged to have been committed in relation to that proceeding, Section 195(1)(b) would clearly apply. Even if there be a case where there was, at one stage, a proceeding in any Court which may have concluded by the time the question of applying the provisions of Section 195(1)(b) arises, the bar under that provision would apply if it is alleged that the offence under Section 211 IPC, was committed in relation to that proceeding. The fact that the proceeding had concluded would be immaterial because Section 195(1)(b) does not require that the proceeding in any court must actually be pending at the time applying this bar arises.”
97. With the aforesaid, we dispose of this Interlocutory Application. ………………………………………..J. (A.M. KHANWILKAR) ………………………………………..J. (J.B. PARDIWALA) NEW DELHI; JULY 14, 2022