CBI filing fresh FIR is against judicial pronouncements: SC

The Supreme Court on Monday gave the former Gujarat Minister and BJP leader, Amit Shah, relief from arrest, quashing the second First Information Report filed on the fake encounter killing of Tulsiram Prajapati.

A Bench of Justices P. Sathasivam and B.S. Chauhan directed the Central Bureau of Investigation to treat the charge sheet filed in the second FIR as a supplementary charge sheet in the first FIR filed in the Sohrabuddin Sheikh fake encounter case.

(In November 2005, Sohrabuddin, an extortionist, was travelling along with his wife Kausarbi by bus from Hyderabad to Sangli in Maharashtra when the police intercepted the couple and took them away. Sohrabuddin was killed in a gunbattle staged by the police on the outskirts of Ahmedabad on November 26. His wife was also killed a few days later. Prajapati, an accomplice of Sohrabuddin and only witness to his killing, was eliminated in an encounter a year later, on December 26, 2006.)

Second FIR, a violation of rights

Writing the judgment, Justice Sathasivam said: “Filing of the second FIR and fresh charge sheet is violative of fundamental rights under Articles 14, 20 and 21 of the Constitution since the same relate to an alleged offence in respect of which an FIR had already been filed and the court has taken cognizance. This court categorically accepted the CBI’s plea that the killing of Prajapati is part of the same series of cognizable offences forming part of the first FIR.” And though this court directed the CBI to “take over” the investigation and did not grant the relief as prayed for, namely registration of a fresh FIR, its filing a fresh FIR is “contrary to various judicial pronouncements.”

The Bench said the CBI initially took the stand that the third person accompanying Sohrabuddin and his wife was Kalimuddin. And only after further investigation did it gather the information that the third person was Prajapati. Thus a second FIR was “unwarranted.”

The Bench said guarding the rights of the accused ensured under the Constitution “is as imperative as ensuring justice to the victim… The sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences.”

The Bench said: “Even as per the CBI, the scope of conspiracy included the alleged killing of Sohrabuddin and Kausarbi and the alleged offence of killing of Prajapati and the same is unequivocally established by the order passed by this court on August 12, 2010 which is fortified by the status report dated November 11, 2011.” There could not be a second FIR in respect of the same offence/event “because whenever any further information is received by the investigating agency, it is always in furtherance of the first FIR. The second FIR was nothing but a consequence of the event which had taken place on 25/26.11.2005.”

Allowing Mr. Shah’s writ petition challenging the second FIR, the Bench said the charge sheet filed on September 4, 2012, in pursuance of the second FIR, should be treated as a supplementary charge sheet in the first FIR. “It is made clear that we have not gone into the merits of the claims of both parties and it is for the trial court to decide the same in accordance with law.”