- (1.) Narmada Bai-the petitioner herein, mother of Tulsiram Prajapati-the deceased, who, according to her, was killed on 27/28.12.2006 in a fake encounter by respondent Nos. 6 to 19, who are the officials of Gujarat and Rajasthan Police, somewhere on the road going from Ambalimal to Sarhad Chhapri, has filed the above writ petition under Article 32 of the Constitution of India praying for issuance of a writ of mandamus or in the nature thereof or any other writ, order or direction directing the Central Bureau of Investigation (in short 'the CBI') to register a First Information Report (in short 'FIR') and investigate into the fake encounter killing of her son and submit its report to this Court. In the same petition, she also prayed for compensation for the killing of her son in a fake encounter thereby causing gross violation of Articles 21 and 22 of the Constitution.
(2.) Case of the Writ Petitioner:- a) According to the petitioner, she is 55 years old illiterate widow. Her younger son had been done away by respondent Nos. 6-19 in a fake encounter with the ulterior intent to shield themselves in the investigation emanating under the directions of this Court in the case of Rubabbuddin Sheikh vs. State of Gujarat & Ors., 2010 2 SCC 200. She came to know through local persons about the fake encounter and killing of Sohrabuddin and his wife Kausarbi and the directions of this Court in that case. On being informed about the said incident, she approached this Court for directions to register an FIR into the fake encounter killing of her son Tulsiram Prajapati and investigation by an independent agency, like the CBI and for submission of its report to this Court for further action. According to the petitioner, the fake encounter killing of her son is directly connected to the case of Sohrabuddin and his wife Kausarbi as he would have been a material witness to the said killings. (b) It is further stated that her son Tulsiram Prajapati while lodged in Central Jail, Udaipur, had addressed a letter dated 11.05.2006 to the Collector, Udaipur informing him about the life threatening attack carried out on him in Udaipur Central Jail on 25.03.2006, when he was beaten up with iron rods and lathis by co-prisoners. He expressly wrote that there was conspiracy to kill him along with two others and also named the persons who were behind the conspiracy and requested that incident be investigated and his life be protected. Thereafter, on 18.05.2006, the deceased also addressed a letter to the Chairman, National Human Rights Commission (in short 'NHRC') alleging that there was conspiracy among the police officials of Gujarat, Rajasthan, Maharashtra, etc. to do away with him in a fake encounter by cooking up a false story of running away from custody. In the said letter, the deceased specifically requested that his security be ensured whenever he is taken on remand. In the same letter, he also mentioned that the Gujarat Crime Branch and Anti Terrorist Squad (in short 'ATS') were very notorious for staging fake encounters. The NHRC acknowledged the receipt of the said letter and forwarded a copy to the Superintendent of Police, Udaipur, Rajasthan vide letter dated 22.06.2006. (c) Thus from March 2006, the deceased had been expressing serious apprehensions and threat to his life at the hands of the police. The deceased had reasons to believe that Mr. Dinesh Kumar, Superintendent of Police, respondent No.8, had taken a huge sum of money from the Marble traders and dealers in Rajasthan with the assurance that he would do away with him in a fake encounter. Before he being interrogated by Ms. Geeta Johri, an officer investigating the matter of fake encounter killing of Sohrabuddin and his wife Kausarbi, in the night intervening 27/28 December, 2006, Tulsiram Prajapati was done away in a fake encounter by respondent Nos. 6-19. (d) Quoting from certain newspaper reports, more particularly, the Times of India dated 29.12.2006, the petitioner has alleged that her son was being escorted by Udaipur (Rajasthan) Police from Ahmedabad to Udaipur in a train. When the train was passing through Himatnagar- Shymlaji Stretch, the deceased sought permission to go to the toilet. The policemen escorted him to the toilet where two of his accomplices disguised as passengers attacked the policemen by throwing chilli powder in their eyes. When the policemen called for the other members of the escort party, the goons fired at them and jumped off the moving train. In response, the police opened fire but the accused fled in the cover of darkness after shooting back at the police. (e) Pursuant to such alleged fleeing of Tulsiram Prajapati from police custody, Mr. Dinesh Kumar, SP, Udaipur called Mr. Vipul Agarwal, SP Banaskantha and informed him of the same. Thereafter, local police of Banaskantha headed by Mr. Vipul Agarwal under direct supervision of Mr. D.G. Vanzara, Range DIG, swung into action and registered an FIR being Crime Register No. 115 of 2006 at Ambaji Police Station, Banaskantha, on 28.12.2006 at 8.00 hrs. claiming that Tulsiram Prajapati had been killed in an encounter. (f) It is further alleged that when patrolling was carried out, three persons tried to stop one Matador van but the vehicle did not stop there. It has also been alleged that a police jeep of Mr. A.A. Pandya, SI was coming behind the Matador and the said three persons tried to stop it. On stopping the police jeep, Mr. Narayansinh Fatehsinh Chauhan, ASI recognized one of the three persons in the light of jeep as the absconding Tulsiram Prajapati. On seeing that, the deceased took out a weapon kept in the nylon belt on his waist and fired which hit the left side of the mudguard of the police jeep and ran away in the darkness. While running, they fired at the police party in which one bullet hit at the left shoulder of Shri A.A. Pandya, SI. It is alleged that in self-defence Shri A.A. Pandya fired two rounds from his service revolver and Mr. Narayansinh Fatehsinh Chauhan and Mr. Yuddharamsinh Nathusinh Rajput, Rajasthan police constables also fired from their weapons. On account of the firing by the police party, bullets hit Tulsiram Prajapati and he fell down on road side and the other two persons ran away and could not be traced. Thereafter, he was taken to Ambaji Cottage Hospital where he was declared dead by the doctor on duty. (g) It is the further case of the petitioner that the deceased being a key eye witness to the murder of Sohrabuddin and his wife Kausarbi, the team of Mr. D.G. Vanzara and others planned to do away with him to avoid his interrogation by Ms. Geeta Johri, Inspector General of Police. The aforesaid facts create a strong suspicion on the conduct of respondent Nos. 6 to 19 and the petitioner has every reason to believe that her son- Tulsiram Prajapati has been killed by them in a fake encounter. She also alleged that the respondents/accused officers enjoy powerful position in their respective State Police and are trying to obstruct further inquiry into the fake encounter killing of her son, who was a material witness in the case of fake encounter of Sohrabuddin and his wife Kausarbi. Hence, the petitioner has preferred this petition before this Court praying for direction to CBI to register an FIR and investigate the case.
(3.) Stand of the State of Gujarat - respondent No.1 (a) Shri I.M. Desai, Deputy Inspector General of Police, CID (Crime), Gujarat State filed an affidavit wherein it was stated that the present petition under Article 32 of the Constitution is not maintainable as the case registered in respect of death of the petitioner's son in police firing on 28.12.2006 was under investigation. The Writ Petition (Crl.) No. 6 of 2007 being a Habeas Corpus was entertained by this Court as an exceptional case and, therefore, the same cannot be cited as a precedent. It was further stated in the said affidavit that Tulsiram Prajapati was a dreaded inter-state criminal and was also known as Tulsiram Prajapati @ Prafull @ Samir son of Ganga Ram Prajapati involved in 21 criminal cases and he was killed on 28.12.2006 in police firing after escaping from police custody. In respect of the same, an FIR was registered in Ahmedabad Railway Police Station of Gujarat vide CR No. 294/06 under Sections 307, 224, 225, 34 of Indian Penal Code (in short "IPC") and Section 25(1)(AB) of the Arms Act, 1959 and Section 135 of Bombay Police Act, 1951. (b) According to the State, after escaping from the Police Custody, Tulsiram Prajapati was again confronted by Gujarat Police and Rajasthan Police and was killed in police firing for which an FIR was registered in Ambaji Police Station vide CR No. 115 of 2006 dated 28.12.2006 under Sections 307, 427, 34 of IPC and Section 25(1)(C) of the Arms Act, 1959 and Section 135 of the Bombay Police Act, 1951. Since the cases in respect of the above two incidents had already been registered in the Police Stations, there is no need to register a fresh case as claimed by the petitioner. It was further stated that Tulsiram Prajapati was not a material witness in the case of Sohrabuddin. He also denied that any such incident had taken place within the premises of Udaipur Central Jail as claimed by the petitioner on 25.03.2006 but there was a quarrel among the prisoners on 24.03.2006 in the Court lock- up for which a criminal case was registered at Bhopalpura Police Station in C.R.No. 131 of 2006 under Sections 341, 323, 506 and 34 IPC. (c) As regards the complaint made to the NHRC, investigation carried out so far revealed that no such conspiracy amongst the police officers of Maharashtra, Gujarat, Madhya Pradesh and Rajasthan has come on record. The deceased also never showed any apprehension to the petitioner about danger to his life from marble dealers or police officers of Udaipur. The petitioner's claim about Tulsiram Prajapati's apprehension to his life is at the most hearsay and based on extraneous considerations. (d) The claim that the deceased-Tulsiram Prajapati was highly inconvenient witness for respondent Nos. 6-19 is without substance as respondent No. 10 - Mr. V.L. Solanki, an inquiry officer, has stated in respect of alleged killing of Sohrabuddin that during preliminary enquiry there was no link between Tulsiram Prajapati and the death of Sohrabuddin and his wife Kausarbi in an encounter. The same view has been expressed by Ms. Geeta Johri, IGP under whose direct supervision the case relating to Sohrabuddin was investigated. The 'third person' allegedly present at the time of abduction of Sohrabuddin and Kausarbi was Kalimuddin and not Tulsiram Prajapati. (e) In the subsequent affidavit dated 19.08.2010, Dashrathbhai R. Patel, Under Secretary, Government of Gujarat, Home Department has stated that the State CID (Crime) has filed a charge-sheet which is the subject-matter of present writ petition. It is the consistent stand of the State that the encounter killing of Tulsiram Prajapati (subject- matter of Writ Petition (Crl.) No. 115 of 2007) has nothing to do with the killing of Sohrabuddin and Kausarbi (which was the subject-matter decided by this Court in Writ Petition (Crl.) No. 6 of 2007).;