PRATHVIPAL JAGDISH PANDEY Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) BY this application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the applicant seeks quashing of the complaint registered with the Central Bureau of Investigation bearing FIR No.BSI/S/2011/0005 dated 26th December, 2011 for commission of offences punishable under sections 302, 364, 368, 346, 120B, 201, 203, 204, 217 and 218 of the Indian Penal Code.

(2.) THE facts stated very briefly are that, a first information report being DCB PS I -C.R. No.8/2004 came to be filed at the DCB Police Station on 15 th June, 2004 to the effect that on or around 1st June, 2004 the Commissioner of Police received information from intelligence that two Pakistani Fidayeens (Suicide squad terrorists) have proceeded to Ahmedabad from Jammu and Kashmir for killing the Chief Minister of Gujarat, Mr. Narendra Modi. On 14 th June, 2004 the applicant received information from the intelligence that the Fidayeens are expected to reach Ahmedabad on 15 th June, 2004 from Mumbai as they started in a Blue Indica car No.MH - 02 -JA -4786. Based on the information officials carried out a nakabandhi and when the car came to be intercepted, the Fidayeens started firing pursuant to which the police started firing in self defence which resulted in the death of the four Fidayeens, viz. Ishrat Jahan, Javed @ Pranesh Gopinath Pillai, Amjad Ali and Jishan Johar. Subsequently, Mrs. Shamima Kauser, mother of Ishrat Jahan, filed a writ petition before this court being Special Criminal Application No.822 of 2004 stating that her daughter had been killed by the police in a fake encounter and prayed for transfer of the investigation to the Central Bureau of Investigation. Pursuant thereto, a Special Investigation Team came to be constituted by the High Court vide order dated 13th August, 2009. Thereafter, another writ petition came to be filed by Gopinath Pillai, father of deceased Javed @ Pranesh Pillai being Special Criminal Application No.1850 of 2009. Vide order dated 24 th September, 2010 passed in Criminal Misc. Application No.9832 of 2010 in Special Criminal Application No.1850 of 2009 and another application, the High Court constituted a new Special Investigation Team for investigation of DCB Police Station I -C.R. No.8/2004. By an order dated 1st December, 2011 made in Special Criminal Application No.1850/2009, the High Court directed registration of fresh FIR by the CBI. On 16 th December, 2011, the FIR in question came to be lodged with CBI, Mumbai wherein the applicant has been arraigned as accused No.3. It may be pertinent to note that the investigation in respect of the said FIR is being monitored by a Division Bench of this court.

(3.) MR . Mihir Thakore, Senior Advocate, learned counsel for the applicant invited the attention of the court to the contents of the FIR to submit that on a plain reading of the first information report in question, no offence as alleged can be said to have been constituted insofar as the present applicant is concerned. Referring to the FIR, it was pointed out that insofar as the applicant is concerned, the only role which is attributed to him is that in consequence of intelligence input received by the Commissioner of Police, the applicant and Shri D.G. Vanzara, Additional Commissioner of Police had called Shri J.G. Parmar and Shri G.L. Singhal, ACP in person and told them about the serious and grave information and they were told to be very vigilant and to confidentially enquire about the said information. The other allegation against the applicant herein is that the applicant had received intelligence around 23:00 hours on 14th June, 2004 from confidential sources that Javed and two Pakistani fidayeens armed with weapons and explosives had proceeded towards Ahmedabad from Maharashtra in a blue Indica car No.MH -02 -JA -4786. This information was corroborating the intelligence received earlier. It was submitted that under the circumstances, the only role attributed to the applicant is that he has acted as a conduit and has communicated the intelligence received by him. Inviting attention to the contents of the FIR in question, it was pointed out that the contents of the first FIR namely, 8/2004 are reproduced therein and the remainder reflects the contents of the present FIR. According to the learned counsel, the first FIR is reproduced in the present FIR with an intention to show as to how it is wrong whereas the second FIR culminates into the second part which is based on the theory that the death of the four persons had resulted on account of a fake encounter. It was argued that both the FIRs cannot be connected to support the complaint against him. Referring to paragraph 5.2 of the FIR in question, it was submitted that insofar as the FIR is concerned, the role of the applicant is only to the extent as indicated therein and that in the present FIR, there is nothing to show that the applicant had intimated anything on 14 th June, 2004 regarding fidayeens armed with weapons proceeding towards Ahmedabad in a blue Indica car. Such statement is only found in the previous FIR which has been discarded by the CBI. Thus, in the present FIR the only role attributed to the applicant is that fifteen days prior to the incident, he had conveyed the intelligence which was communicated to him by the Commissioner of Police. Referring to paragraph 6.3 of the FIR, it was submitted that the entries of police officers are consistent with the other documentary evidence which go to show that it was qua those officers that the entries were made. It was reiterated that in terms of the present FIR, the only information which has been given by the applicant herein is on 20th May, 2004 and that his role ends at that. 4.1 Next, it was submitted that the facts of the case have to be read in the context of the antecedents of the deceased. Referring to the background of the four deceased persons, it was pointed out that three of them are clearly involved in terrorist activities. It was accordingly submitted that the intelligence received by the applicant was not incorrect. It was argued that assuming that even if the first FIR is required to be taken into consideration and it is found that he had received and conveyed the information of 14 th June, 2004, even then, there is nothing to show that such information was false to his knowledge. It was submitted that this court while considering a petition for quashing under section 482 of the Code would go by the contents of the FIR to examine whether any offence is made out qua the applicant. That on reading the FIR in its entirety, there is nothing to show that the applicant herein had been involved in giving any false information or that he was in any way connected with the incident that had taken place. Under the circumstances, the FIR in question is required to be quashed insofar as the present applicant is concerned.