SPECIAL CRIMINAL APPLICATION NO. OF 2005
Ameenaben Habib Rasool & Anr. …Petitioners.
V E R S U S
The State of Gujarat & Anr, ...Respondents .
LIST OF EVENTSDate. Event
1-3-2002: The petitioner no.1 herein is the witness of the offence registered as CR No. I 11 of 2002 with Khanpur Police Station for the offences registered under sec. 302, 147, 148, 149 etc IPC
wherein it is stated that the accused persons had caused death of innocent persons.The police had not only failed to protect the innocent citizens, but also not investigated the offence sincerely leading to lack of evidence and ultimately acquittal of the accused persons in a mass carnage case for want of evidence. The statements of the witnesses were not recorded as they had actually stated. The dead bodies of the deceased appear not to have been sent for the post mortem and disposed of. 27-12-2005: The local people, who had been in touch with petitioner no.2, informed the petitioner no. 2 and other people and therefore the petitioner no. 2 sent its co-ordinator to Lunavada and it was found that several dead bodies were buried after the commission of the offence on 1st March, 2002. The non removal of the clothes of the deceased itself suggests that the dead bodies were buried without the postmortem being conducted properly. Normally after post mortem, bodies are kept in white shrouds; here the clothes of the victims who had been massacred were found intact. Moreover, the original FIR recorded by the local police shows death of only 8 persons whereas in fact those dead were atleast 26. Family members and human rights groups including petitioner no 2 who documented the tragedy have averred that those dead in this massacre at Pandharwada totaled 43 The dead body of not a single deceased was given to the petitioners or any of the relative of the deceased. Thus, the petitioners have been deprived of free and fair investigation and for non corroboration of the injuries etc also, the accused persons have got away from the clutches of law. Thus, it appears that no proper postmortem of any of the deceased was performed by the police. The petitioners therefore pray for the sealing of the entire remains unearthed by relatives of the deceased on 27-12-2005, in the presence of the relatives who must be treated as complainants and panch witnesses, the dispatch of the remains for DNA testing to Red Hill, Hyderabad and the handing over the investigation of the above offence to be instituted by the CBI. The petitioners also pray that the sealed remains are sent immediately to the forensic laboratory at Red Hill Laboratory Hyderabad for DNA testing.The petitioners therefore pray for the handing over of the entire investigation of the above offence to the CBI.
Hence this petition.
Ahmedabad. (M.M.TIRMIZI)Date: - 12-2005 Advocate for the petitioners. IN THE HIGH COURT OF GUJARAT AT AHMEDABAD(DIST: AHMEDBAD)
SPECIAL CRIMINAL APPLICATION NO. OF 2005
In the matter of Articles 14, 21, 226 and 227 of the Constitution of India;
In the matter of transfer of the investigation to the C.B.I.
In the matter between;
(1) Ameenabibi Habib Rasool(2) Citizens for Justice and PeaceThrough its Secretary, Ms Teesta Atul Setalvad,Having its office at “Nirant”,Juhu-Tara Road, Juhu,Mumbai. …Petitioners
V E R S U S
1. The State of GujaratNotice to be served throughLd. Public Prosecutor,Gujarat High Court,Ahmedabad. 2. The Central Bureau of Investigation (CBI), Having its office near Police Bhavan Gandhinagar, Gujarat …Respondents.
TOTHE HON'BLE THE CHIEF JUSTICE AND HIS COMPANION JUDGES OF THE HON'BLE HIGH COURT OF GUJARAT AT AHMEDABAD.
THE HUMBLE PETITION OF THE PETITIONER ABOVENAMED
MOST RESPECTULLY SHEWETH: -1. The petitioners are the citizens of India and are entitled to invoke the fundamental rights enshrined under various provisions of the Constitution of India. The petitioner no. 1 is the victim of the mass carnage that occurred in the State of Gujarat in the year 2002. The petitioner no. 1 has lost her kith and kin. The petitioner no. 1 is also an eye witness of the offence registered as CR No. I 11 of 2002 with Khanpur police station. The petitioner no.2 is an Association of persons from Gujarat and Mumbai constituted to lead and support the struggle for justice and peace in Gujarat. The petitioner no.2 is a Non-Governmental Organization that has won national and international acclaim for its objective and fearless crusade against the politics of division and hatred, be it of the majority or the minority. The Petitioner no.2 , Non-Governmental Organization works for the cause of Human Rights. The petitioner no. 2 herein has been instrumental in the struggle for justice for the victims and has also assisted in their rehabilitation of the victims including the petitioner no. 1 and several other victims, thus the petitioner no. 2 is personally interested in the welfare of the petitioner no. 1 and other victims. 2. The petitioners state that the petitioners have been subjected to several injustices at the hands of the local police controlled and monitored by the State Of Gujarat. Firstly the police did not come to the rescue of the petitioners and other victims at the time of the offence on 1st March, 2002, secondly the dead bodies were also not returned to the family members of the deceased. The petitioners further state that as per the say of the police at the time of the commission of the offence on 1st March, 2002 the police had sent the dead bodies to the hospital for post mortem and thereafter the dead bodies have been disposed of. However, on 27th December, 2002 when the dead bodies were dug up in the bed of river Paanam, Lunavada, the clothes worn by the deceased had covered the dead bodies of the deceased persons. Thus, if the postmortem were done properly, the doctors would have covered the dead bodies with its own white clothes in accordance with the law. The petitioners state that the police was also required to draw the panchnama of the clothes of the deceased. However, on 27th Dec, 2002 the dead bodies were dug up and to the shock and surprise the deceased were found with same clothes which they had worn on 1st March, 2002. The petitioners state that it is therefore necessary that the investigation of the offence registered as CR No. I 11 of 2002 with Khanpur Police Station is required to be handed over to the CBI so as to repose the faith of the peace loving citizens in the secular fabric of the nation. The petitioners crave leave to annex the copies of the affidavits of relatives of the deceased namely Kutubsha Aiyubsha Diwan, Jabir Kalu Sheikh and Nasir kalu Sheikh as ANNEXURE: “A” to this petition.3. The petitioners say and submit that even after the discovery of the dead remains of their loved ones by the relatives on 27th March, 2005, the highhandedness of the district administration and the police continues. Instead of looking at this as an opportunity to regain the confidence of victims, the district administration and police brass have been detaining both the relatives of the dead and petitioner no 2’s field coordinator for hours at the police station for the mere recording of a statement. The petitioners would pray to ask under what law, Shri Ghulambhai Ghanibhai Kharadi, one of the relatives who lost his real brother and uncle in the massacre at Pandharwada was detained by the following policemen –PSI Puvaar and DYSP Mothalia at Lunawada from 6.30 p.m. on 27th December 2005 to 9.30 a.m. on 28th December 2005? The petitioners would also like to aver that already, even as we move this petition, the state administration is attempting a cover up operation by pulling out unknown persons as panch witnesses when the persons present from yesterday, relatives of the deceased and residents of Pandharwada and Lunawada are being forcibly kept away from the digging of bodies at the site. Even in it’s present conduct the district police and administration of the state of Gujarat is behaving in a high-handed and intimidatory manner, justifying the prayer for the immediate ordering of an independent, CBI Inquiry. Instead of being concerned about how these hapless victims were killed and summarily buried without dignity of last rites and acknowledgement and closure to the next of kin, the state of Gujarat through it’s administration appears keener to indict the relatives looking for their lost ones.4. The brief facts leading to this petition are such that the petitioner no. 1 herein is the eye witness of the offence that took place on 1st March, 2002. The petitioner no. 1 has seen her 24 year old son being slaughtered alongwith several others. The petitioners state that at the time of the morning prayers between 5 and 6 am., Jaswant Patel, the taluka member of the village panchayat came to tell her and others that ‘you are not safe; do not come out; you are in danger because there are rumours that some Muslims have killed two adivasis.” The petitioners further submit that one Sanabhai Jaisinghbhai who was watching this from a scooter ran away to summon the mob towards the petitioner no. 1.5. The petitioners state that soon thereafter, a mob of 5-6,000 with swords and dharias set upon the petitioner no. 1 and other victims. The petitioner no. 1 alongwith several other victims was trembling with fear in the fields and the hay stacks hidden there shivering. The mob comprising of the accused persons came and deliberately set fire to the dry grass. First, Jabbirbhai Ghanibhai, 34 years, ran out frightened pleading for his life. There in front of eyes of the petitioner no. 1 the accused persons slashed him on the head, neck an leg. The attackers had a black scarf on head and mouth. The petitioners further states that in a similar fashion the accused persons then finished off Yasinbhai, Akeelabehn’s husband. There were 10-12 persons after one life. The petitioners state that after killing Yasin, they slaughtered Jabbir Ayub Shah Dewan and thereafter Muradbhai Mehmoodbhai after whom Abbas Nathubhai was finished off. After these gruesome murders, the son of the petitioner no. 1 herein namely Ayubhai Habibhai Rasool, 24 years was killed. Thereafter, Abdulbhai Abbasbhai, the uncle –in –law of the petitioner no. 1 too was slain. The sarpanch and others made the petitioner no. 1 and others pick up the dead bodies –nine of them—and line them to one side in one of the vehicles. The petitioner no. 1 and other witnesses were put in another vehicle. The petitioner no. 1 herein pleaded with the sarpanch to be able to take the body of her son; the sarpanch and the police promised they would bring the dead body of her son to her. The petitioner no. 1 and other witnesses were taken to the Godhra camp; the bodies went to Lunawada and neither the petitioner no. 1 nor other witnesses have ever seen the dead bodies nor their near and dear ones given the dignity of the burial. The petitioners state that in the ghastly attack several persons had lost their lives and the dead bodies were not returned to the near and dear ones. 6. The petitioner no. 2 respectfully states that the petitioner no. 2 learnt in the early morning of 27th December, 2005 that the dead bodies of some of the persons in the Feb-March, 2002 carnage were buried by the accused persons in the bed of the river Paanam, Lunavada. The petitioner no. 2 therefore sent its co-coordinator Raeeskhan Pathan to the ‘scene’ of the offence in the morning to inquire into the incident. The petitioner no. 2 being a non-governmental organization, through its secretary Ms. Teesta A. Setalvad sent an application to the NHRC on 27th December, 2005. The said correspondence is reproduced as under:- December 27, 2005Shri A. S. AnandHon’ble Chairperson,National Human Rights Commission [NHRC]New Delhi.Cc: Shri Ajit Bariogi, Registrar, NHRC
Dear Shri Anand,This is to bring to your notice the discovery of a mass grave at Lunawada Gaon [Panam river bed] in Gujarat’s Panchmahal district by relatives of the deceased today. It is believed that the remains, body bones and skulls, are those of victims who died in the incident CR No 1-9/2002 at Khanpur Police Station. For over one year the relatives have been searching in vain for the remains of their loved ones with no help from the authorities. The massacre in Pandharwada took place on March 1, 2002 wherein over 40 persons were killed and within 6 months of the ghastly incidence the sessions court had acquitted the accused.This makes the relatives who excavated the bodies the complainants and given the situation in Gujarat it is imperative that the NHRC uses all the authority at its command to ensure that the investigation into both the circumstances of these bodies lying undiscovered for so long as well as the extremely unusual circumstances of their being found by relatives be investigated impartially by the CBI. We also urge that the forensic testing of DNA samples be done at Red Hill, Hyderabad, and not within the state of Gujarat.
At present the relatives are standing guard at the site to ensure that the remains are sealed in their presence and they are made panch witnesses in the inquest that follows. Given the circumstances of this case and the trajectory of the justice process in Gujarat we urge the NHRC to take immediate cognizance of the case and ensure that the victims get justice. We would also like to draw your attention to Sections 174 to Section 176 in this regard. We attach the copies of the affidavits filed by the eye witnesses. Yours truly,Teesta SetalvadSecretary
7. The petitioners state that on 27th December, 2005 as some dead bodies have been found surreptitiously buried by the accused persons in the bed of the river Paanam of Lunavada. The dead bodies were unearthed. The police is therefore required to follow the procedure as envisaged under sec. 174 and 176 Cr. P. C. For the sake of convenience of this Hon’ble Court the petitioner craves leave to re-produce the above provisions as under:- 174. Police to enquiry and report on suicide, etc. – (1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.(3) The report shall be signed by such police officer and other (4) persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub-divisional Magistrate.(3) When –(i) the case involves suicide by a woman within seven years of her marriage : or(ii) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman : or(iii) the case relates to the death of a woman within seven years of her marriage and any relative of the woman has made a request in this behalf : or(iv) there is any doubt regarding the cause of death : or(v) the police officer for any other reason considers it expedient so to do.he shall,] subject to such rules as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the State Government, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless.(4) The following Magistrates are empowered to hold inquests, namely, any District Magistrate or Sub-divisional Magistrate and any other Executive Magistrate specially empowered in this behalf by the State Government or the District Magistrate. COMMENTS Police submitting final report – Magistrate not accepting final report directing police to obtain sanction for prosecution. – C.B.I. registered corruption cases against the accused persons, but after investigation for paucity of evidence submitted final report to special judge who disagreed with the report and simultaneously directed the police to obtain sanction under section 197, Cr.P.C. held directing police to obtain sanction is improper and Magistrate has no jurisdiction to so order. – State (C.B.I.) v. R.S. Mathur, 1994 Cri LJ 794 (Del). Refusal to exhibit of panchanama – If a document, is admitted and corroborated by other evidence, it has to be given an exhibit numberor it could be considered for a period regardless of its evidentiary value, a panchanama is also always available for court, conviction on that basis is liable to be set aside. –Koli Arshi Lila v. State of Gujarat, 1999 Cri LJ 2595 (Guj). Sanction for prosecution – Consideration for. – For grant of sanction, application of mind to facts and evidence, by Sanctioning Authority is only required and defence of accused cannot be considered at the stage of granting of sanction. – Pancham Lal v. State of U.P. 1999 Cri LJ 4111 (All). 176. Inquiry by Magistrate into cause of death. – (1) [When any person dies while in the custody of the police or when the case is of the nature referred to in clause (i) or clause (ii) of sub-section (3) of Section 174], the nearest Magistrate empowered to hold inquests shall, and in any other case mentioned in sub-section (1) of Section 174, any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police officer : and if he does so, he shall have all the powers in conducting it which he would have in holding and inquiry into an offence.(2) The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in any manner hereinafter prescribed according to the circumstances of the case.(3) Wherever such Magistrate considers it expedient to make an examination of the dead body of any person who has been already interred, in order to discover the cause of his death, the Magistrate may cause the body to be disinterred and examined.(4) Where an inquiry is to be held under this section, the Magistrate shall, wherever practicable, inform the relatives of the deceased whose names and addresses are known, and shall allow them to remain present at the inquiry.Explanation. – In this section the expression “relative” means parents children, brothers, sisters and spouse. 8. The petitioners state that the petitioners have been subjected to several injustices at the hands of the local police controlled and monitored by the State Of Gujarat. Firstly the police did not come to the rescue of the petitioners and other victims at the time of the offence on 1st March, 2002, secondly the dead bodies were also not returned to the family members of the deceased. The petitioners further state that as per the say of the police at the time of the commission of the offence on 1st March, 2002 the police had sent the dead bodies to the hospital for post mortem and thereafter the dead bodies have been disposed of. However, on 27th December, 2002 when the dead bodies were dug up in the bed of river Paanam, Lunavada, the clothes worn by the deceased had covered the dead bodies of the deceased persons. Thus, if the postmortem were done, the doctors would have covered the dead bodies with its own white clothes in accordance with the law. The petitioners state that the police was also required to draw the panchnama of the clothes of the deceased. However, on 27th Dec, 2002 the dead bodies were dug up and to the shock and surprise the deceased were found with same clothes which they had worn on 1st March, 2002. The petitioners state that it is therefore necessary that the investigation of the offence registered as CR No. I 11 of 2002 with Khanpur Police Station is required to be handed over to the CBI so as to repose the faith of the peace loving citizens in the secular fabric of the nation. 9. The petitioners have not filed any petition before this Hon’ble Court or before the Hon’ble Supreme Court of India; and that the petitioners have no other efficacious remedy except by filing this writ petition before this Hon’ble Court. 10. The petitioners therefore humble pray that this HON'BLE COURT BE PLEASED: - (A) YOUR LORDSHIPS be pleased to issue appropriate writ, order or direction and be pleased to call for the records and proceedings of the offence registered as CR No. I 11 of 2002 with Khanpur Police Station, Lunavada and after perusing the same be pleased to transfer the investigation to the respondent no. 2, i.e, the Central Bureau Of Investigation the interest of the justice;(B) YOUR LORDSHIPS be pleased to order that pending admissions and or final disposal of this petition, the investigation of the offence registered as transfer the investigation of the offence registered as CR No. I 11 of 2002 with Khanpur Police Station, Lunavada to the CBI in the interest of justice; (C) YOUR LORDSHIPS be pleased to order that the unearthed remains of the deceased be sealed in the presence of the relatives –treating them as panch witnesses and be sent forthwith for DNA testing to Red Hill Hyderabad, the premier forensic laboratory in the country;(D) YOUR LORDSHIPS be pleased to direct that an FIR be registered with the relatives of the deceased as complainants about the unearthing of the remains yesterday(E) YOUR LORDSHIPS be pleased to direct that the intimidation of witnesses and possible of tampering of evidence by the Gujarat police that appears to have been party to the shady disposals of these bodies be immediately stoped;(F) YOUR LORDSHIPS be pleased to grant any other and further relief as may be deemed fit the facts and circumstances of the case.
AND FOR THIS ACT OF KINDNESS AND JUSTICE THE PETITIONER SAHLL AS IN DUTY BOUND FOR EVER PRAY.Ahmedabad. (M.M.TIRMIZI)Date: -12 -2005 Advocate for the Petitioner.
A F F I D A V I T I, Teesta Atul Setalvad, the petitioner no. 2 herein, Aged: 43 years approx, residing at Nirant, Juhu Tara Road, Mumbai 400049, do hereby solemnly affirm and state on oath as under: -1. I am petitioner no. 2 and am conversant with the facts and circumstances of the case facts and am competent to depose that what is stated petition is true to the best of my knowledge, belief and information and I believe the same to be true. 2. I have gone through a copy of this petition and I solemnly affirm that what is stated in para 1 to 9 are true to my own knowledge and what is stated in memo is true to the best of my information and belief. Its para 10 is the prayer clause.
Solemnly affirmed at Ahmedabad on this 28th day December , 2005.
Identified by me.Advocate Clerk.