Lunawada Mass Graves I

SCR.A/1875/2005

ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 1875 of 2005

AMEENABIBI HABIB RASOOL & 1 – Applicant (s)

Versus

THE STATE OF GUJARAT & 1 –

Respondent (s)
Appearance :
Mr. MM TIRMIZI for Applicant (s) : 1 – 2Mr. Kamal Trivedi, Addl. AG with Mr. AY Kogje, Addl. PUBLIC PROSECUTOR for Respondent (s) : 1, None for Respondent (s) 2.
CORAM : HONOURABLE MR. JUSTICE C. K. BUCH
Date : 29/12/2005

ORAL ORDER

1. Heard ld. Counsel Mr. MM Tirmizi for the petitioners, 1d. Addl. AG Mr. Kamal Trivedi assisted by ld. APP Mr. AY Kogje for the respondent No. 1 State.
2. The present petition is filed for appropriate writ, order or directions seeking following main reliefs :-
“ (A) Your Lordship 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, in the interest of 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 disposal of these bodies be immediately stopped ”
3. After some deliberations and detailed submissions that are made before the court by 1d. Counselappearing for the parties, by way of an interim arrangement, some orders are required to be passed becausesome digged out bodies at present must be lying somewhere in a probably bad and decomposed shape and condition. Close relatives of the deceased must be under a particular state of mind and anxiety. Ld. Addl. Advocate General Mr. Trivedi has tried to convince the Court and submitted that each body was disposed of either by relatives of the deceased or by the municipal authority on completion of necessary formalities and the same have been disposed of in accordance with law and norms that are required to be followed while disposing of the body when none of the relatives of such deadbody had claimed the body for disposal. Even then, to rule out the doubt in the minds of the petitioners and anybody interested in the ultimate out-come and the attempts that have been made by the present petitioners, the State is ready even to send sample of the remnance of each body for analysis and DNA testing to Red Hill Laboratory, Hyderabad, though the State has premier and reputed laboratory herein in Gandhinagar. The State has acted transparently in entire event. He has taken this Court through the details of different crimes being CR.No. I.11/2002 and CR.No. 1.13/2002.
4. Ld. Counsel Mr. Tirmizi for the petitioners has also given details of deadbodies found when the crime was actually under investigation and bodies were disposed of on completion of formalities as aforesaid. The anxiety of the State is that entire exercise can be undertaken though Red Hill Laboratory, Hyderabad under the supervision and control of the Highest Officer of the State of the rank of Addl. D.G. of State CID Crimes or it can be done under the supervision and control of the Commissioner appointed by the Court and Laboratory can be directed to send the findings recorded to the Registrar General of the High Court directly, but there is no need to entrust anything at this stage to Central Bureau of Investigation (CBI for short) because the entry of a third agency in the event may lead to lot of frustration to the officers who have performed their statutory duties earlier and the same shall have effect of demoralization on the strength and morale of the police officers.5. Without entering into the detailed discussions, the Court is of the view that such a task should not be handed over to the Court Commissioner. If the say of the State is accepted and finding recorded by Red Hill Laboratory, Hyderabad corroborates the stand taken by the State of Gujarat, then State government and its officers who had performed their duties including the local-self government, doctors who have performed post-mortem etc. would touch the point of the highest transparency, but if things, for the sake of arguments are found otherwise, then the Court has scope to pass appropriate further orders in the interest of justice. In this fact situation, ultimately the CBI is asked to undertake that task, that would not prejudice in any way either the State administration or the morale of the police because at present by way of interim arrangement, they have to perform the duties as intervener because in their presence, remnance of each body taken out shall be taken, sealed and sent to Red Hill Laboratory, Hyderabad. Ld. Counsel Mr. Tirmizi appearing for the petitioners states that all the close relatives who can have DNA testing of the deceased are ready to co-operate with investigation and for blood samples or sample of any part of their body at the instance of CBI which can be gathered by the doctors or responsible officer of the State and can be sent for analysis to Red Hill Laboratory, Hyderabad. The finding in turn will throw light directly or indirectly on the allegations made by the petitioners in the present petition. It may unveil the attempt if is made by anybody to tarnish the image of police or administration. It is true that CBI can be said to be a third agency, but ultimately, it is yet to be traced out whether the bodies that have been found out are of the persons who were named deceased in earlier incidents and disposed of in accordance with norms and scheme under the Municipalities Act and other norms that are being adopted by the State. But if it is found that deadbodies or any one of such deadbodies is not accounted for in connection with any of two earlier incidents, then it may lead to new case and, therefore, the scope to investigate the crime de-novo qua that is there. I am told that relatives of the persons who are declared missing, have been paid compensation, but that by itself would not be sufficient to resolve the situation that has come to light by act of digging out the bodies already buried earlier by the State machinery or municipality concerned. CBI, on receipt of the report from laboratory, after approaching this Court can positively take appropriate further steps, if required.
6. Nobody including the officers of police force of State should feel that entry of CBI in such incident or event is either distrust on them or the same should be treated in any way adverse to them, but when transparency is claimed by the persons who had actively participated while disposing of the deadbodies, then the confirmation to such transparency if expected by the petitioners from the Court, then it would obviously be justified.
7. Ld. Addl. AG, after relying on the ratio of the decision of the Apex Court in the case of State of Karnataka v/s Arun Kumar Agarwal & Others, (2000) 1 SCC 210, has submitted that there is no need to entrust any work at this stage to CBI and in the cited decision, the order of High Court was quashed. He has submitted that investigation, as a matter of course, should not be entrusted to CBI and even Supreme Court in number of cases till date, has not transferred investigation or any part thereof to CBI though prayed for. The anxiety of the Court is that deadbodies after drawing sample should be set at rest in peace at the earliest so that close relatives of the deceased can be relieved from mental stress and situation prevailing at present and they may also ultimately get satisfactory answer to the anxiety that they might be carrying today on receipt of report from the Red Hill Laboratory, Hyderabad. It is true that same testing could be efficiently performed by the Laboratory in State of Gujarat and it is rightly submitted also that even CBI, in number of cases, is taking help of that laboratory which is there in the State of Gujarat. I am strained to say that the petitioners have not expressed their trust and faith in the officers who are carrying on scientific testing in a most primer and scientific laboratory in a transparent manner. But ultimately, it should be seen that justice is done and one should also feel that it is being done. Therefore only, it appears that ld. Addl. AG Mr. Trivedi has rightly accepted on behalf of the State that State has no objection that such testing is carried out by any laboratory out of State of Gujarat, i.e. Red Hill Laboratory, Hyderabad.
8. In view of above, it is hereby ordered by way of an interim arrangement that in presence of responsible officers of CBI, sample from each deadbody digged out and at present lying out, be taken and sample be sealed and sent to Red Hill Laboratory, Hyderabad for analysis and DNA testing along with the samples drawn in same manner of from the body of the close relatives of the deceased. The report of test, in turn be sent to CBI and copy thereof be sent to this Court. CBI may be assisted actively by the State Police so that the things can take shape smoothly and exercise is completed smoothly. If the State machinery so desires, may give the case papers of exercise that has undertaken by the State machinery to CBI, otherwise details can be scrutinized by this Court while passing further orders in the matter. It will be open for the State or close relatives of the deceased to put and bury the deadbodies either by themselves or they can be buried by State machinery as per the norms adopted by such machinery. While drawing samples from the body of the close relatives, the Officer from State police shall remain present so that identity of the person from whom sample is drawn should not, in any way, be under confused state, order and directions accordingly.
9. Copy of this order can be served to the CBI at its appropriate office i.e. either at Bombay or atDelhi.
10. S.O. to 10.02.2006.
11. At this stage, ld. Addl. AG Mr. Trivedi has requested to stay this order for some time because the State would like to assail the order before the higher forum. Request, in view of the facts and circumstances as aforesaid, is not found acceptable and is hereby rejected.
D.S. Permitted.

(C. K. BUCH, J)