BHIKHALAL KALYANJI JETHAVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE petitioner has primarily prayed to transfer to the Central Bureau of Investigation (CBI) or Special Investigation Team (SIT) investigation of the murder of his son, who was the petitioner in a public interest litigation, being SCA No.7690 of 2010 directed against illegal mining, and an RTI activist. THE petition was initially listed before learned single Judge, as per the roster, and then, by order dated 14.10.2010, (as His Lordship then was) and K.M.Thaker, J.], who had taken cognizance of investigation into killing of the petitioner, in the public interest litigation pending before it. THE division bench, however, opined in order dated 21.12.2010 that it was not desirable to tag this case with the PIL "as criminal case can independently be gone through, even it is found that Mr.Amit Jethava was murdered because of the public interest litigation". For that reason, the bench was of the view that this case should be heard independently, but, in view of the fact that the matter was referred for hearing by a division bench, it was ordered to be placed before a division bench hearing criminal matters. THEreafter, the matter was placed before several other division benches and ordered by the Hon'ble Chief Justice to place it before this bench. During the course of intermittent hearing and upon prima facie some substance having been found in the grievances of the petitioner against the investigation carried out till then, following interim order dated 19.10.2011 was made:

(2.) THE son of the petitioner, namely Amit Jethava, was fired upon at around 08.40 p.m. on 20.7.2010 on the public road, just opposite the High Court and near the corner of "Satyamev Complex" wherein is the office of Bar Council of Gujarat; and two assailants were stated to have made good their escape, leaving their motorcycle on the spot. Mr.Indrajitsinh H. Vaghela, an unarmed police constable for the time being serving at Sola High Court Police Station, after his duty hours were over at 08.00 p.m., had gone with his friend for tea and refreshment in a parlour in "Satyamev Complex" and, upon hearing the sound of firing from the corner of the building, they rushed to the spot alongwith six-seven other people and found there the victim lying on his back with blood all over and a motorcycle lying near his leg, according to the FIR lodged by the constable and registered at 22.06 hours as I- C.R.No.163 of 2010.

(3.) BY filing an affidavit of the petitioner, during the course of hearing, it is averred that report of Superintendent of Police Mr.Vatsa clearly suggested that further investigation was carried out to substantiate the earlier investigation with excessive bias in favour of Mr.DB. It is stated on oath that Mr.Vatsa has not annexed with the report the documents received by him from the government offices in the districts of Junagadh and Amreli and they are not supplied to the petitioner in spite of specific written demand therefor. It is submitted that those documents were most essential as they would go to the root of the crime and throw light on illegal activities of the suspected persons. It is alleged that the documents submitted by the deceased in the PIL, being SCA No.7690 of 2010, the documents submitted by the witness Mr.Kanaksinh and family members of the deceased, the representations made by the deceased to several authorities including the Hon'ble Chief Minister, the Home Secretary, the DGP, the S.P., Junagadh, in his own name and under the banner of "Gir Nature Youth Club and Zilla Mahiti Sangh" and the applications made by the deceased under the Right to Information Act, put together, were enough to establish that the crusade against Mr.DB and his illegal empire by the deceased was the cause for his murder at the instance of none other than Mr.DB. It is also averred that while the record of telephonic talk, before and after the murder, between Mr.Shiva Solanki and Mr.DB, was available, it was not investigated as to what transpired between them or what was discussed at that time. That was another example of incomplete and perfunctory investigation with a pre-set mind, according to the affidavit. It is further averred by the petitioner that, whereas the investigating officer Mr.Vatsa stated that there were only ten FIRs registered against Mr.DB, the petitioner has placed on record 20 FIRs starting from the year 1989 to 2009, involving Mr.DB; and almost in each of the FIRs, Kodinar Police Station has submitted summary reports, whether it was for rioting, attempt to murder, dacoity, threat to life, simple injury, serious injury, with or without offences under the Arms Act, or under the Bombay Police Act and the Atrocities Act. It is further stated that in the offence involving attack on the present MLA from Kodinar Mr.Dhirsi Barad and his family members, the victim has subsequently died and the trial against the accused including Mr.DB is pending. It is also alleged that pursuant to the FIR registered as C.R.No.36 of 2008 for brutal attack on the petitioner's son, he had left Junagadh and Amreli districts and started residing in Ahmedabad City. It is submitted that the investigating officer concerned has never approached the petitioner or the wife of the deceased for any assistance in connection with that offence. It is also alleged that learned advocate Mr.Anand Yagnik and witness Mr.Kanaksinh Parmar have come forward to file their affidavits with respect to the investigation and the investigating officer Mr.Vatsa has made statements just to discredit their statements. Statement of learned advocate Mr.Anand Yagnik was not recorded in his presence and read over to him; and there are four other witnesses who have categorically stated that their statements were not recorded by investigating officer Mr.Vatsa and his team in their presence and were not read over to them, according to the affidavit.