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The appellant lost her husband, a former Member of Parliament, in the calamitous events which took place on 28th February, 2002, in the surroundings of Gulberg Society, Ahmedabad, where the appellant resided along with her family. An FIR relating to the incident was registered by the Police with Meghaninagar Police Station, Ahmedabad. After investigation, on the filing of the charge-sheet, the 2

Gujarat High Court in Ahmedabad

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 (ARISING OUT OF S.L.P. (CRL.) NO. 1088 OF 2008)




 O R D E R

1. Leave granted. 

2. This appeal by special leave, arises out of the judgment dated 2nd 

 November, 2007, delivered by the High Court of Gujarat at 

 Ahmedabad in Special Criminal Application No. 421 of 2007, 

 dismissing the writ petition preferred by one of the hapless victims of 

 the abominable and woeful events which took place in the State of 

 Gujarat between February, 2002 and May, 2002 after the abhorrent 

 Godhra incident on 27th February, 2002. By the said petition under 

 Article 226 of the Constitution of India read with Section 482 of the 

 Code of Criminal Procedure, 1973 (for short "the Code"), the 

 appellant had sought for a direction to the Director General of Police, 

 State of Gujarat, to register her private complaint dated 8th June, 2006 

 as a First Information Report and direct investigation therein by an 

 independent agency. By the impugned judgment, the High Court has 

 come to the conclusion that since a remedy under Section 190 read 

 with Section 200 of the Code was available to the appellant, the writ 

 petition was not tenable. The writ petition was accordingly dismissed 

 by the High Court with the observation that if the appellant had got 

 certain additional material against some persons accused in her 

 complaint, it was open to her to approach the investigating agency, 

 requesting further investigation, or, alternatively she could herself 

 approach the Court concerned for further investigation in terms of 

 Section 173(8) of the Code.

3. The appellant lost her husband, a former Member of Parliament, in the 

 calamitous events which took place on 28th February, 2002, in the 

 surroundings of Gulberg Society, Ahmedabad, where the appellant 

 resided along with her family. An FIR relating to the incident was 

 registered by the Police with Meghaninagar Police Station, 

 Ahmedabad. After investigation, on the filing of the charge-sheet, the 


 case was committed to the Court of Sessions, Ahmedabad. It was the 

 case of the appellant that subsequently she received certain material 

 which showed that the incidents which took place during the period 

 between 27th February, 2002 and 10th May, 2002, were aided, 

 abetted and conspired by some responsible persons in power, in 

 connivance with the State Administration, including the Police. The 

 appellant thus sought registration of another FIR against certain 

 persons named in the complaint, dated 8th June, 2006, for offences 

 punishable under Section 302 read with Section 120B as also under 

 Section 193 read with Sections 114, 186 & 153A, 186, 187 of the 

 Indian Penal Code, 1860. However, as the police declined to take 

 cognizance of her complaint, the appellant filed the aforementioned 

 petition before the High Court. Having failed to convince the High 

 Court that it was a fit case for investigation by an independent agency, 

 the appellant-complainant, supported by an NGO, is before us in this 


4. On 3rd March, 2008 while issuing notice to the Union of India and 

 State of Gujarat, an Amicus Curiae was appointed to assist the Court. 

 Vide order dated 27th April, 2009, the Special Investigation Team (for 

 short "the SIT"), which had been constituted vide order dated 26th 

 March, 2008 to carry out further investigations in nine cases, subject 


 matter of Writ Petition No. 109 of 2003, was directed `to look into', 

 the complaint submitted by the appellant on 8th June, 2006 to the 

 Director General of Police, Gujarat. Pursuant to the said direction 

 Shri A.K. Malhotra, former D.I.G. (C.B.I.) and one of the members of 

 the SIT, examined a number of witnesses and looked into a large 

 number of documents made available to him. A report, dated 12th 

 May, 2010, was submitted to this Court by the Chairman, SIT, 

 concurring with the findings of Shri A.K. Malhotra. 

5. In his report dated 12th May, 2010, Shri A.K. Malhotra, inter alia 

 recommended further investigation under Section 173(8) of the Code 

 against certain Police officials and a Minister in the State Cabinet. 

 Consequently, further investigation was conducted and a report dated 

 17th November, 2010, was submitted by the SIT. On 23rd November, 

 2010, Shri Raju Ramachandran, Senior Advocate and Shri Gaurav 

 Agarwal, Advocate, replaced the previous Amicus Curiae, who had 

 expressed his unwillingness to continue. 

6. On 20th January, 2011, a preliminary note was submitted by Shri Raju 

 Ramachandran, the learned Amicus Curiae; whereon, vide order dated 

 15th March, 2011, the SIT was directed to submit its report, and if 

 necessary carry out further investigation in light of the observations 

 made in the said note. The SIT conducted further investigation under 


 Section 173(8) of the Code in Meghaninagar Police Station Crime 

 Report No.67 of 2002--Gulberg Society case, and submitted a report 

 on 24th April, 2011. After examining the said report, on 5th May, 

 2011, the following order was passed :

 "Pursuant to our order dated 15th March, 2011, the 

 Chairman, Special Investigation Team (SIT) has 

 filed report on the further investigations carried out 

 by his team along with his remarks thereon. 

 Statements of witnesses as also the documents 

 have been placed on record in separate volumes. 

 Let a copy of all these documents along with the 

 report of the Chairman be supplied to Mr. Raju 

 Ramachandran, the learned Amicus Curiae.

 The learned Amicus Curiae shall examine the 

 report; analyze and have his own independent 

 assessment of the statements of the witnesses 

 recorded by the SIT and submit his comments 

 thereon. It will be open to the learned Amicus 

 Curiae to interact with any of the witnesses, who 

 have been examined by the SIT, including the 

 police officers, as he may deem fit.

 If the learned Amicus Curiae forms an opinion that 

 on the basis of the material on record, any offence 

 is made out against any person, he shall mention 

 the same in his report."

7. The learned Amicus Curiae has now submitted his final report dated 

 25th July, 2011. In light of the above conspectus and the report of the 

 learned Amicus Curiae, the question for determination is the future 

 course of action in the matter.


8. We are of the opinion that bearing in mind the scheme of Chapter XII 

 of the Code, once the investigation has been conducted and completed 

 by the SIT, in terms of the orders passed by this Court from time to 

 time, there is no course available in law, save and except to forward 

 the final report under Section 173 (2) of the Code to the Court 

 empowered to take cognizance of the offence alleged. As observed by 

 a three-Judge Bench of this Court in M.C. Mehta (Taj Corridor 

 Scam) Vs. Union of India & Ors.1, in cases monitored by this Court, 

 it is concerned with ensuring proper and honest performance of its 

 duty by the investigating agency and not with the merits of the 

 accusations in investigation, which are to be determined at the trial on 

 the filing of the charge-sheet in the competent Court, according to the 

 ordinary procedure prescribed by law. 

9. Accordingly, we direct the Chairman, SIT to forward a final report, 

 along with the entire material collected by the SIT, to the Court which 

 had taken cognizance of Crime Report No.67 of 2002, as required 

 under Section 173(2) of the Code. Before submission of its report, it 

 will be open to the SIT to obtain from the Amicus Curiae copies of his 

 reports submitted to this Court. The said Court will deal with the 

 matter in accordance with law relating to the trial of the accused, 

 named in the report/charge-sheet, including matters falling within the 

1 (2007) 1 SCC 110


 ambit and scope of Section 173(8) of the Code. However, at this 

 juncture, we deem it necessary to emphasise that if for any stated 

 reason the SIT opines in its report, to be submitted in terms of this 

 order, that there is no sufficient evidence or reasonable grounds for 

 proceeding against any person named in the complaint, dated 8th June 

 2006, before taking a final decision on such `closure' report, the 

 Court shall issue notice to the complainant and make available to her 

 copies of the statements of the witnesses, other related documents and 

 the investigation report strictly in accordance with law as enunciated 

 by this Court in Bhagwant Singh Vs. Commissioner of Police & 

 Anr.2. For the sake of ready reference, we may note that in the said 

 decision, it has been held that in a case where the Magistrate to whom 

 a report is forwarded under Section 173(2)(i) of the Code, decides not 

 to take cognizance of the offence and to drop the proceedings or takes 

 a view that there is no sufficient ground for proceeding against some 

 of the persons mentioned in the FIR, the Magistrate must give notice 

 to the informant and provide him an opportunity to be heard at the 

 time of consideration of the report.

10.Having so directed, the next question is whether this Court should 

 continue to monitor the case any further. The legal position on the 

 point is made clear by this Court in Union of India & Ors. Vs. Sushil 

2 (1985) 2 SCC 537


 Kumar Modi & Ors.3, wherein, relying on the decision in Vineet 

 Narain & Ors. Vs. Union of India & Anr.4, a Bench of three learned 

 Judges had observed thus :

 "...that once a charge-sheet is filed in the 

 competent court after completion of the 

 investigation, the process of monitoring by this 

 Court for the purpose of making the CBI and other 

 investigative agencies concerned perform their 

 function of investigating into the offences 

 concerned comes to an end; and thereafter it is 

 only the court in which the charge-sheet is filed 

 which is to deal with all matters relating to the trial 

 of the accused, including matters falling within the 

 scope of Section 173(8) of the Code of Criminal 

 Procedure. We make this observation only to 

 reiterate this clear position in law so that no doubts 

 in any quarter may survive."

11.In M.C. Mehta Vs. Union of India & Ors.5, a question arose as to 

 whether after the submission of the final report by the CBI in the 

 Court of Special Judge, pursuant to this Court's directions, this Court 

 should examine the legality and validity of CBI's action in seeking a 

 sanction under Section 197 of the Code for the prosecution of some of 

 the persons named in the final report. Dismissing the application 

 moved by the learned Amicus Curiae seeking directions in this behalf, 

 a three-Judge Bench, of which one of us (D.K. Jain, J.) was a member, 

 observed thus:

3 (1998) 8 SCC 661

4 (1996) 2 SCC 199

5 (2008) 1 SCC 407


 "The jurisdiction of the Court to issue a writ of 

 continuous mandamus is only to see that proper 

 investigation is carried out. Once the Court 

 satisfies itself that a proper investigation has been 

 carried out, it would not venture to take over the 

 functions of the Magistrate or pass any order 

 which would interfere with his judicial functions. 

 Constitutional scheme of this country envisages 

 dispute resolution mechanism by an independent 

 and impartial tribunal. No authority, save and 

 except a superior court in the hierarchy of 

 judiciary, can issue any direction which otherwise 

 takes away the discretionary jurisdiction of any 

 court of law. Once a final report has been filed in 

 terms of sub-section (1) of Section 173 of the Code 

 of Criminal Procedure, it is the Magistrate and 

 Magistrate alone who can take appropriate 

 decision in the matter one way or the other. If he 

 errs while passing a judicial order, the same may 

 be a subject-matter of appeal or judicial review. 

 There may be a possibility of the prosecuting 

 agencies not approaching the higher forum against 

 an order passed by the learned Magistrate, but the 

 same by itself would not confer a jurisdiction on 

 this Court to step in." 

12.Recently, similar views have been echoed by this Court in Narmada 

 Bai Vs. State of Gujarat & Ors.6. In that case, dealing with the 

 question of further monitoring in a case upon submission of a report 

 by the C.B.I. to this Court, on the conclusion of the investigation, 

 referring to the earlier decisions in Vineet Narain (supra), Sushil 

 Kumar Modi (supra) and M.C. Mehta (Taj Corridor Scam) (supra), 

6 (2011) 5 SCC 79


 speaking for the Bench, one of us, (P. Sathasivam, J.) has observed as 

 under :

 "70. The above decisions make it clear that though 

 this Court is competent to entrust the investigation 

 to any independent agency, once the investigating 

 agency complete their function of investigating 

 into the offences, it is the court in which the 

 charge-sheet is filed which is to deal with all 

 matters relating to the trial of the accused 

 including matters falling within the scope of 

 Section 173(8) of the Code. Thus, generally, this 

 Court may not require further monitoring of the 

 case/investigation. However, we make it clear that 

 if any of the parties including CBI require any 

 further direction, they are free to approach this 

 Court by way of an application."

13. Deferentially concurring with the dictum of this Court in the 

 aforenoted decisions, we are of the opinion that in the instant case we 

 have reached a stage where the process of monitoring of the case must 

 come to an end. It would neither be desirable nor advisable to retain 

 further seisin over this case. We dispose of this appeal accordingly. 

14.Before parting, we direct the State of Gujarat to reimburse to Shri 

 Raju Ramachandran, all the expenses borne by him for travel from 

 Delhi to Ahmedabad and back. We also place on record our deep 

 appreciation for the able assistance rendered to us by Shri Raju 

 Ramachandran and Shri Gaurav Agarwal, the learned Amicus Curiae.



 (D.K. JAIN, J.) 






SEPTEMBER 12, 2011.


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