SABBIR JAMALBHAI MEHTAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this petition under Article 226 of the Constitution of India, petitioner younger brother of one Shri Sadik Jamal who is alleged to have been killed in a fake encounter on 13.01.2003 alleged to be by the officers of the Detection of Crime Branch, Ahmedabad (DCB, Ahmedabad) has prayed for an appropriate writ, direction or order directing the respondents to register a case against one Shri P.P. Pande, Shri D.G. Vanzara and all other police officers who were involved in the conspiracy of killing of said Shri Sadik Jamal on 13.01.2003 by further directing the respondents to hand over the investigation to the CBI for investigating into the matter or to any other agency deemed fit by this Court. Other interim directions are also sought in the present Special Criminal Application which are mentioned in para 6(B of the petition.

(2.) IT is the case on behalf of the petitioner and so pleaded in the petition that his elder brother Shri Sadik Jamal has been killed in fake encounter on 13.01.2003 by the officers of the DCB, Ahmedabad. According to the petitioner, he works in a garage at Bhavnagar as a mechanic. That his brother was the citizen of India and his brother was deprived of his life and liberty in gross violation of the protection under Articles 14 and 21 of the Constitution of India. IT is averred in the petition that due to fear, the petitioner could not bring culprit to justice, but after intervention of the Honble Supreme Court in fake encounter of one Shri Sheikh Sorabuddin by the officers of DCB/ATS, the petitioner has found new hope of getting justice for his brother and therefore, he has approached this Court for appropriate reliefs referred to hereinabove. [2.1] IT is the case on behalf of the petitioner that his elder brother Sadik Jamal has studied upto 9th std. and thereafter he had given up his studies. That thereafter he was engaged in a small time work till 1997. That his brother Sadik Jamal got involved in minor altercations sometime in 1996 and thereafter he left the house and gone away to Mumbai. IT is the case on behalf of the petitioner that from the News appearing in the Newspaper, he had come to learn that on 13.01.2003, his brother Sadik Jamal was killed in so called encounter. [2.2] IT is the case on behalf of the petitioner that around 20 days prior to the so-called encounter i.e. from about 23.12.2002, the DSP, Bhavnagar had come to their house at Bhavnagar, started questioning the whereabouts of Sadik Jamal. That his father and his uncle were repeatedly called by the DSP, Shri Ghelot and detained for long hours without informing the petitioner or his father as to the purposes of such inquiry and detention with such harassment continued on day to day basis till 12.01.2003 and the DSP has extracted few written statements from the petitioner and relatives under threat and coercion. IT is the case on behalf of the petitioner that as they had no personal information about the whereabouts of Sadik Jamal, they had expressed their inability to the DSP. IT is further submitted that during this period the DSP took away old photograph of Sadik Jamal and on 13.01.2003, the police raided their house at Bhavnagar destroying most of the household things, however, nothing incriminating or otherwise was found or taken by the police. [2.3] IT is the case on behalf of the petitioner that during the aforesaid period, initially, the DSP, on inquiry from his father, had informed them that they were investigating into some gambling case registered against Sadik Jamal at Bhavnagar on 09.11.2002. On inquiry the petitioner found that an FIR being C.R. No.I-536/2002 was also registered on 09.11.2002 with A Division Police Station, Bhavnagar under the Gambling Act against Sadik. IT is the case on behalf of the petitioner that the said fact has come as shock and surprise to the petitioner since his brother had not contacted them at Bhavnagar during that period. [2.4] IT is further case on behalf of the petitioner that later on the police had informed them that Sadik was in the custody of Mumbai police and they were investigating whether Sadik had been involved in any criminal activity in Gujarat. That the petitioners father had honestly informed the police about the previous case against Sadik being FIR for the offences punishable under Sections 323, 504, 506(2) of IPC registered with A Division Police Station, Bhavnagar being C.R. No.II-691/1996. According to the petitioner, apart from the aforesaid minor offence, Shri Sadik was not involved in any other offence. [2.5] IT is the case on behalf of the petitioner that on 16.01.2003, he and his father were informed by the DSP, Bhavnagar that his brother had been killed in encounter and that he had to go to Ahmedabad to collect the dead body of his brother. That his father along with three other persons proceeded to Ahmedabad and the body of his brother was given to them by DCB, Ahmedabad on 16.01.2003. IT is the case on behalf of the petitioner that while handing over the body to his father, Shri D.G. Vanzara had threatened his father that if he had ever made any complaint regarding the death of his son, the petitioner would also meet the same fate. Therefore, it is the case on behalf of the petitioner that because of the aforesaid threat, neither the petitioner nor his father dared to approach any authority to complain about the brutal murder of Sadik Jamal. [2.6] IT is the case on behalf of the petitioner that his father and other relatives had carefully checked the body for injuries and as per their observations, the body of his brother bore 11 bullet injuries and 2 deep wounds in the right side of the groin. There was one bullet injury right in the middle of the forehead, but one bullet injury that appeared to have entered from below the jaw and went vertically upwards piercing the skull at the top of the head, 2 bullet injuries one on each knee, 2 bullet injuries one on each reverse side of the palm, 4 more bullet injuries from front of chest and stomach area and 1 bullet injury at the back below the left flank. IT is the case on behalf of the petitioner that two wounds that were noticed near the right side of the groin were deep and petrified apparently made by any sharp weapon and the wound was not treated at all. According to the petitioner, the bullet injury below the jaw and went through the head upwards could have been made only from a very close range with a gun placed below the jaw. According to the petitioner, similarly, the bullet in the centre of the forehead and four bullets on the knees and the palms could not have been made from a long distance indicating that Sadik Jamal was shot at in a stationary position in the custody of the police. According to the petitioner, the body was badly disfigured. [2.7] IT is further averred in the petition that thereafter the petitioner had buried his brother Sadik in the local graveyard at Shahibaug, Ahmedabad. IT is further averred in the petition that petitioner was not given any document relating to the death of his brother by the DCB but was given death certificate dated 13.01.2003 signed by the Medical Officer, Civil Hospital, Ahmedabad. That the reasons shown in the death certificate was that death of Sadik was due to shock and hemorrhage following injuries sustained to the body by bullets of firearms. [2.8] IT is further averred in the petition that as per the news releases that were published in different newspapers, he was pained to find that the DCB was accusing his brother of being terrorist in the league of perbrothers like Daud Ibrahim, Anish Ibrahim, Chhota Shakil etc.. IT is the case on behalf of the petitioner so pleaded in the petition that it is not true that his brother had ever planned or participated in any conspiracy to kill the leaders like Shri L.K. Advani, Shri Narendra Modi or Shri Pravin Togadia, as had been alleged by the police. IT is the case on behalf of the petitioner that recently he had filed an application to get the certified copy of the FIR being C.R. No.I-3/2003 registered with DCB Police Station, Ahmedabad City given by one Vijaysinh Gulabsinh Parmar, P.I., Crime Branch, Ahmedabad City in which the police has made the similar allegations. [2.9] IT is the case on behalf of the petitioner that as per Section 176(1) read with Section 174(1) of the Code of Criminal Procedure, it is mandatory for the Magistrate to hold inquiry upto the cause of the death and for that purpose, a Magistrate is empowered to record evidence to find out the cause of the death. According to the petitioner, under Section 176(4) of the Code of Criminal Procedure, when an inquiry is to be held by Magistrate, he is required to inform the relative of the deceased whose names and addresses were known to the Magistrate. According to the petitioner in the instant case, the father of the deceased Sadik Jamal was informed by the police at Bhavnagar to go and take the dead body of his brother at Ahmedabad. That neither the petitioner nor his father, had received summons or any communication from any Magistrate or for that matter any person who may be empowered to hold inquiry in such type of deaths to give any evidence. According to the petitioner, to the best of his information and knowledge, no inquiry was held under Section 176(4) of the Code of Criminal Procedure. [2.10] IT is the case on behalf of the petitioner that so far as the FIR against Sadik and 6 other persons is concerned, as per the information of the petitioner, no investigation was held and the Registrar of the Metropolitan Magistrate Court at Ahmedabad who had the jurisdiction to try the case pursuant to the aforesaid FIR (Metropolitan Magistrate Court No.11) was also not able to give any information regarding the progress of the case. According to the petitioner, despite all efforts made by the petitioner, no information was forthcoming regarding end result of the investigation, if any, into the aforesaid FIR or whether any charge-sheet was ever filed pursuant to the said FIR. According to the petitioner, infact, he was informed by the clerk of the office of the Metropolitan Magistrate Court that there is no paper in the file except the FIR. [2.11] IT is the case on behalf of the petitioner and so pleaded in the petition that some time in December 2004, a stranger had approached his father and told him that one journalist namely Shri Ketan Tirodkar wanted them to go over to Mumbai and meet said Shri Tirodkar and his father was given a ticket. That petitioner and his father had gone to Mumbai and met Shri Ketan Tirodkar. That the said Shri Ketan Tirodkar told the petitioner and his father that he was friend of Sadik Jamal and he knew said Sadik Jamal for quite some time. That the petitioner was informed that Sadik had been working in Mumbai and used to go to Bhavnagar once in while and that on last occasion Sadik visited Bhavnagar in the month of November 2002, he had got involved in gambling case which was registered at Bhavnagar. According to the petitioner, Shri Tirodkar also informed the petitioner that employer of Sadik Jamal had not paid the salary of Sadik and Sadik was trying to recover the money due to him and he was planning to go back to Bhavnagar permanently. According to the petitioner, Shri Tirodkar also informed the petitioner that Sadik had requested Shri Tirodkar to get him out of the criminal cases pending against Sadik in Bhavnagar so that he could go back to Bhavnagar. According to the petitioner, Shri Tirodkar considering the request of Sadik, contacted Shri Daya Nayak of Mumbai Police, whom he knew immediately and arranged the meeting between Daya Nayak and Sadik Jamal some time in the first week of December 2002, with a hope that as Shri Nayak had contacts with Gujarat police, he will be able to found a solution to Sadiks problem. According to the petitioner, Shri Tirodkar informed the petitioner that however for some ulterior reasons, instead helping Sadik, Shri Nayak detained and kept Sadik in his custody for 3 to 4 weeks and tortured Sadik to extract a confession that he was connected with Terrorist organizations. According to the petitioner, petitioner was also told by said Shri Tirodkar that in the last week of December 2002, Shri Daya Nayak had also informed the Gujarat police that Sadik was in his custody and Gujarat police should also do their own inquiries. Ultimately, however, when Shri Nayak could not find anything incriminating against Sadik, he had contacted Shri D.G. Vanzara, DCB, Ahmedabad and handed over Sadik to Gujarat police on 02.01.2003. [2.12] According to the petitioner and so pleaded in the petition, the said Shri Ketan Tirodkar who was a small time journalist had informed the petitioner that he had filed a complaint in the MCOC Court at Mumbai on 22.11.2003 in which he had alleged that he had handed over Shri Sadik to Shri Daya Nayak of Mumbai ATS Squad sometime in the month of December 2002. That the said Shri Tirodkar has also alleged that he was present in the month of January 2003 when the Mumbai police had handed over Sadik to the team of Gujarat police officers from DCB, who had come over to Mumbai. According to the petitioner and as per his information given by Shri Tirodkar, a team of officers from DCB, Ahmedabad headed by Shri Tarun Barot had reached Mumbai on 02.01.2003 and had brought back Shri Sadik to Ahmedabad on 03.01.2003. According to the petitioner, his brother Sadik was kept in DCB office at Bungalow No.15, Nr. IPS Mess, Shahibaug, Ahmedabad till 13.01.2003. According to the petitioner, as per his information, Shri Sadik was taken out from the DCB office late in the night 12/13.01.2003 and was taken to Naroda area of Ahmedabad and was shot dead in cold blood at about 01.15 a.m. on 13.01.2003. According to the petitioner, from the news report appearing in Gujarat Today dated 14.01.2003, petitioner learnt that under the orders of Shri P.P. Pandey - the head of DCB, Shri D.G. Vanzara - DCP, P.I. Shri J.G. Parmar Police Inspector, P.I. Shri I.A. Saiyed, PSI Shri K.M. Vaghela, PSI Shri G.H. Gohil, PSI Shri R.L. Mavani, Police Constable Shri Chhatrasinh and Police Constable Shri Ajaypalsinh had participated in the fake encounter and killing his brother Sadik Jamal. That by way of amendment the petitioner has relied upon the averments made in the complaint/application by Shri Ketan Tirodkar made in MCOC Special Case No.4/2003 which has been filed by said Shri Ketan Tirodkar against Shri Daya Nayak and 4 others, which reads as under: (7) In first week of January 2003, accused No.1 told me that he wanted to oblige a big politician in Gujarat by giving an ISI agent or some similar militant for an encounter killing. He said that Pradeep Sharma and others from his unit were not to be told as they would snatch the credit. I had met one Sadik Mehtar aged about 18 years in Dubai, who was a house-help of said Tariq Praveen. This Sadik had lost some of his dear ones and his house in the Gujarat Ethnic riots. While in Dubai he had also worked at my apartment as a house-help ...Mumbai and was in touch with me. He had asked for help from me for putting up his case before the Amnesty International. I had promised him the help. Accused No.1 saw him and thought him to be the only easy target available after some drafting to build his profile as a militant. So accused No.1 and myself made a profile of Sadik about his being in Dubai in the company of D gang members Salim Chiplun and others and had come to India on the contract of LeT fro eliminating Gujarat Chief Minister Narendra Modi. (8) Then on 11.01.2003, as planned by accused No.1 I asked Sadik to come to the Traffic Police Post on the Andheri Flyover where accused No.1 had kept the Gujarat Police in wait. Sadik came there and we both boarded the vehicle and came towards National Park. Two persons and a lady were standing there, at the gate of National Park dressed like journalists, carrying shoulder bags. I introduced them to Sadik and alighted from the vehicle and they went away towards Gujarat. Two days thereafter I read in newspaper that Sadik was killed in police encounter in Gujarat. [2.13] IT is the case on behalf of the petitioner that a police complaint came to be filed against Shri Sadik Jamal and 6 other persons making serious allegations for the offence punishable under Sections 120B, 121A, 123, 307, 353 etc. of IPC which are of extreme grave nature, alleging that the accused had hatched a conspiracy of raging war against the Government of India and also hatched a criminal conspiracy of killing the Chief Minister of Gujarat State Shri Narendra Modi and still without any further investigation, a closure report has been submitted by the investigating agency and unfortunately the learned Magistrate has accepted the same as it is accepting the A summary report submitted by the investigating agency. IT is submitted that as such the aforesaid allegations were required to be further investigated and inquired into by the investigating agency so that truth may come out. IT is the case on behalf of the petitioner that the aforesaid FIR/complaint being C.R. No.I-3/2003 against the brother of the petitioner i.e. Sadik Jamal and other 6 persons was only an eyewash and to divert the real issue of killing said Shri Sadik Jamal in a fake encounter. Therefore, it is requested to direct the respondents to register the case with respect to killing of Shri Sadik on 13.01.2003 in a fake encounter, against the concerned police officers who had participated at the relevant time in the said encounter so that the real truth may come out and the guilty are punished.

(3.) PETITION is opposed by Shri Jayant M. Panchal, learned counsel and Shri K.J. Shethna, learned counsel appearing on behalf of respondent Nos.3 and 4 viz. Shri P.P. Pande and Shri D.G. Vanzara respectively.