HIMANSHU KUMAR AND OTHERS versus STATE OF CHHATTISGARH AND OTHERS

[2022] 11 S.C.R.

AHIMANSHU KUMAR AND OTHERS

STATE OF CHHATTISGARH AND OTHERS

(Writ Petition (Criminal) No.103 of 2009)

JULY 14, 2022

[A. M. KHANWILKAR AND J. B. PARDIWALA, JJ.]

Criminal Law – Constitution of India – Article 32 – Petitionseeking mandamus for re-investigation / further investigation – Twoincidents of alleged brutal massacre of tribals in three villages inCthe State of Chhattisgarh – Case of the writ petitioners that theChhattisgarh Police, Special Police Officers (SPOs), the activistsof Salwa Judum (group of vigilantes sponsored by the ChhattisgarhGovernment) and the Paramilitary Forces consisting of the CRPFand the CoBRA Battalions were responsible for the alleged massacreD– Whether any case was made out by the writ petitioners forinvestigation of the two incidents through the Central Bureau ofInvestigation (CBI) – Held: The extraordinary power of theConstitutional Courts under Articles 32 and 226 respectively of theConstitution qua the issuance of directions to the CBI to conductinvestigation must be exercised with great caution – The contextualEfacts and the attendant circumstances have to be singularly evaluatedand analyzed to decide the needfulness of further investigation orre-investigation – No one can insist that an offence be investigatedby particular agency – An aggrieved person can only claim thatthe offence he alleges be investigated properly, but he has no rightFto claim that it be investigated by any particular agency of his choice– The power to transfer an investigation must be used “sparingly”and only “in exceptional circumstances” – On facts, the writ petitiongives an impression that proper investigation was not being doneand, therefore, the same should be handed over to the CBI –However, the fact is that the investigation had been already carriedGout and charge sheets had been filed – In the overall view of thematter, it was clear that no case, worth the name, has been madeout by the writ petitioners for any further investigation much lessthrough an independent agency to be appointed by the SupremeCourt.

Criminal Law – Investigation – The power to transfer aninvestigation must be used “sparingly” and only “in exceptionalcircumstances”.

Criminal Law – CrPC does not define what constitutes themaking of “charge” of an offence or what amounts to the“institution of criminal proceedings” – The statement in order toconstitute the “charges” should be made with the intention and objectof setting criminal law in motion.

Code of Criminal Procedure, 1973 – s.340 r/w s.195 – PenalCode, 1860 – ss.191 and 193 – Perjury – Offence of making falseaffidavit and giving false evidence – Held: There are two conditions,on fulfilment of which, complaint can be filed against personwho has given false affidavit or evidence in proceeding beforea court – The first condition being that person has given falseaffidavit in proceeding before the court and, secondly, in theopinion of the court it is expedient in the interest of justice to makean inquiry against such person in relation to the offence committedby him – There should be something deliberate - statement shouldbe made deliberately and consciously which is found to be false asa result of comparing it with unimpeachable evidence, documentaryor otherwise – Before initiating proceedings for perjury, the courtconcerned has to consider whether it would be expedient in theinterest of justice to sanction such prosecution – Before sanctioningprosecution there must be prima facie case of falsehood on amatter of substance and the court should be satisfied that there isreasonable foundation for the charge.

Penal Code, 1860 – s. 211 – Essential ingredients for invokings.211 – Discussed.

Dismissing the writ petition and disposing of theInterlocutory application, the Court

HELD:1.1 In an appropriate case when the Court feels thatthe investigation by the police authorities is not in properdirection, and in order to do complete justice in the case and ifhigh police officials are involved in the alleged crime, the Courtmay be justified in such circumstances to handover theinvestigation to an independent agency like the CBI. Even afterthe filing of the charge sheet the court is empowered in anappropriate case to handover the investigation to an independent

Aagency like the CBI. The extraordinary power of theConstitutional Courts under Articles 32 and 226 respectively ofthe Constitution of India qua the issuance of directions to theCBI to conduct investigation must be exercised with great caution.Though satisfaction of want of proper, fair, impartial and effectiveinvestigation eroding its credence and reliability is theBprecondition for direction for further investigation orreinvestigation, submission of the charge sheet ipso facto or thependency of the trial can, by no means, be prohibitiveimpediment. The contextual facts and the attendant circumstanceshave to be singularly evaluated and analyzed to decide theCneedfulness of further investigation or re-investigation to unravelthe truth and mete out justice to the parties. The prime concernand the endeavour of the court of law should be to secure justiceon the basis of true facts which ought to be unearthed through acommitted, resolved and competent investigating agency. [Paras46, 47][774-B-D, F-H]D

1.2. No one can insist that an offence be investigated by aparticular agency. An aggrieved person can only claim that theoffence he alleges be investigated properly, but he has no rightto claim that it be investigated by any particular agency of hischoice. [Para 52][776-B-C]E

1.3. The power to transfer an investigation must be used“sparingly” and only “in exceptional circumstances”. [Para53][776-D]

2.1 In the instant case, all the FIRs were investigated byFthe concerned investigating agencies and, at the end of theinvestigation, charge sheets came to be filed in different courtsof the State of Chhattisgarh for the offences under the IPC likemurder, dacoity,etc. [Para 55][776-F-G]

2.2. Having regard to the materials on record, no case, worthGthe name for further investigation or re-investigation, could alsobe said to have been made out.The filing of the charge sheets atthe conclusion of the investigation into the various FIRs referredto above would indicate that the alleged massacre was at the endof the Naxalites (Maoists). The materials collected in the form ofthe charge sheets substantiate the case put up by the respondentsH

that the villagers were attacked and killed by the Naxalites. Thereis not an iota of material figuring in the investigation on the basisof which even finger can be pointed towards the members ofthe police force. [Paras 56 and 57][776-G-H; 777-A-B]

2.3. The writ petition gives an impression that properinvestigation is not being done and, therefore, the same shouldbe handed over to the CBI. However, the fact is that theinvestigation has already been carried out and charge sheets havebeen filed. [Para 58][777-B-C]

2.4. It appears from the materials on record that all thosepersons who have been arraigned as accused and against whomcharge sheets have been filed are absconding. It is now for theconcerned trial court to take appropriate steps in this regard. Ifthe persons named as accused in the charge sheets areabsconding, then it is expected of the investigating agency totake necessary steps for their arrest. In any view of the matter, itis now for the trial court to do the needful in accordance with law.[Para 64][781-F-H]2.5. In the overall view of the matter, it is clear that nocase, worth the name, has been made out by the writ petitionersfor any further investigation much less through an independentagency to be appointed by this Court. In the facts of the abovecase, the conditions laid down by this Court in the case ofCommittee for Protection of Democratic Rights, West Bengalare not fulfilled. [Para 65][781-H; 782-A-B]

3.1. The essential ingredients for invoking Section 211,I.P.C. are that the complaint must have falsely charged personwith having committed an offence. The complainant, at the timeof giving the complaint must have known that there is no just orlawful ground for making charge against the person. Thiscomplaint must have been given with an intention to cause injuryto person. [Para 90][802-D-E]

3.2. The CrPC does not define what constitutes the makingof “charge” of an offence or what amounts to the “institution ofcriminal proceedings”. But, false “charge” must not beunderstood in any restricted or technical sense, but in its ordinary

Ameaning, of false accusation made to any authority bound by lawto investigate it or to take any steps in regard to it, such as givinginformation of it to the superior authorities with view toinvestigation or other proceedings, and the institution of criminalproceedings includes the setting of the criminal law in motion.[Para 91][802-E-F]B

3.3. The essential ingredient of an offence under Section211 IPC is to institute or cause, to be instituted any criminalproceeding against person with intent to cause him injury orwith similar intent to falsely charge any person with havingcommitted an offence, knowing that there is no just or lawfulCground for such proceeding or charge. Instituting or causing toinstitute false criminal proceedings assume false charge but falsecharge may be preferred even when no criminal proceedingsresult. Now, the expression “falsely charges” in this sectioncannot mean giving false evidence as prosecution witness againstDan accused person during the course of criminal trial. “To falselycharge” must refer to the original or initial accusation putting orseeking to put in motion the machinery of criminal investigationand not when seeking to prove the false charge by makingdeposition in support of the charge framed in that trial. The words“falsely charges” have to be, read along with the expressionE“institution of criminal proceeding”. Both these expressions,being susceptible of analogous meaning should be understood tohave been used in their cognate sense. They get as it were theircolour and content from each other. They seem to have beenused in technical sense as commonly understood in our criminalFlaw. The false charge must, therefore, be made initially to personin authority or to someone who is in position to get the offenderpunished by appropriate proceedings. In other words, it mustbe’ embodied either in complaint or in report of cognizableoffence to the police officer or to an officer having authority overthe person against whom the allegations are made. The statementGin order to constitute the “charges” should be made with theintention and object of setting criminal law in motion. [Para94][804-D-H; 805-A]

State of West Bengal and others v. Committee forProtection of Democratic Rights, West Bengal (2010) 3HSCC 571 : [2010] 2 SCR 979 – followed.

K.V. Rajendran v. Superintendent of Police, CBCIDSouth Zone, Chennai, (2013) 12 SCC 480 : [2013]9 SCR 199 – relied on.

Secretary, Minor Irrigation, Rural Engineering Services,U.P. v. Sahngoo Ram Arya and Anr. (2002) 5 SCC 521;Romila Thapar v. Union of India (2018) 10 SCC 753 :[2013] 9 SCR 199; Narmada Bai v. State of Gujarat(2011) 5 SCC 79 : [2011] 5 SCR 729; Sanjiv RajendraBhatt v. Union of India (2016) 1 SCC 1 :[ 2015]12 SCR 498; E. Sivakumar v. Union of India(2018) 7 SCC 365; [2018] 6 SCR 522; Divine RetreatCentre v. State of Kerala (2008) 3 SCC 542 : [2008]4 SCR 701; K.Karunakaran v. T.V. Eachara Warrierand another AIR 1978 SC 290 : [1978] 2 SCR 209;Baban Singh and another v. Jagdish Singh and othersAIR 1967 SC 68 : [1966] 3 SCR 552; Chajoo Ram v.Radhey Shyam (1971) 1 SCC 774 : [1971] Suppl.SCR172; Chandrapal Singh and Others v. MaharajSingh and Another (1982) 1 SCC 466; R.S. Sujatha v.State of Karnataka and Others (2011) 5 SCC 689 :[2010] 14 SCR 227; S.P. Kohli v. High Court of Punjab& Haryana AIR 1978 SC 1753 : [1979] 1 SCR 722;Muthu Karuppan, Commissioner of Police, Chennai v.ParithiIlamvazhuthi and another (2011) 5 SCC 496 :[2011] 5 SCR 329; M.S. Sheriff and Another v. Stateof Madras and Others AIR 1954 SC 397 : [1954]SCR 1144; Aarish Asgar Qureshi v. Fareed AhmedQureshi and another (2019) SCC 172 : [2019]3 SCR 400; Sharad Pawar v. Jagmohan Dalmiya(2010) 15 SCC 290; State of Punjab v. Jasbir Singh(2020) 12 SCC 96; Santokh Singh & Ors. v. IzharHussan and Anr. (1973) 2 SCC 406 : [1974] 1 SCR 78and M.L. Sethi v. R.P. Kapur AIR 1967 SC 528 : [1967]1 SCR 520 – referred to.

CBI & Another v. Rajesh Gandhi and another 1997Cr.L.J 63 – affirmed.

Karim Buksh v. Queen Emp 17 C. 574 – referred to.

CRIMINAL ORIGINAL JURISDICTION: Writ Petition(Criminal) No. 103 of 2009.

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

GColin Gonsalves, Sr. Adv., Ms. Sneha Mukherjee, Satya Mitra,Advs. for the Petitioners.

Tushar Mehta, SG, K. M. Nataraj, ASG, Rajat Nair, ShaileshMadiyal, Ms. Neela Kedar Gokhale, Ms. Diksha Rai, Balendu Shekhar,Arvind Kumar Sharma, B. V. Balaram Das, Sumeer Sodhi, AbhishekHLalwani, Advs. for the Respondents.

The Judgment of the Court was delivered by

J. B. PARDIWALA, J.

1. This writ petition under Article 32 of the Constitution of Indiarelates to the alleged massacre that took place on 17[th] September 2009and 1[st] October 2009 respectively in the villages of Gachhanpalli, Gompadand Belpocha respectively situated in the district of Dantewada, Stateof Chhattisgarh.

2. It is the case of the writ petitioners that the Chhattisgarh Police,Special Police Officers (SPOs), the activists of Salwa Judum (group ofvigilantes sponsored by the Chhattisgarh Government) and theParamilitary Forces consisting of the CRPF and the CoBRA Battalionsare responsible for the alleged brutal massacre of the tribals in therespective villages referred to above.

3. In the aforesaid context, the writ petitioners have prayed forthe following reliefs :

“(a) Issue writ of mandamus or any other appropriate writ,order or direction to the respondents to have the CBI takeover the investigation and prosecution with respect to thecomplaints made by the petitioners and others with respect tothe massacres that took place on 17.9.2009 and 1.10.2009as set out in this petition;

(b) Pass an order directing the payment of compensation tothe victims and their families for the extra judicial executions,for the looting of their properties, for the burning of theirhouses and other losses suffered by the victims on account ofthe unlawful activities of the respondents and their agents;

(c) Pass any such further order or orders, as this Hon’bleCourt may deem fit and proper in the facts and circumstancesstated herein above.”

4. By way of the Criminal M.P. No.3173 of 2010, further reliefshave been prayed for as under :

“(a) Order directing the State of Chhattisgarh to constituteand notify Special Investigation Team (SIT) headed by ShriSankar Sen (IPS) Dr.K.S.Subramanian, IPS and Mr.RajneeshRai, DIG and such other officers as the SIT may deem

necessary with additional directions for the proper functioningof the SIT as given by the Supreme Court in the case of NHRCvs. State of Gujarat (2009) 6 SCC 342, 767).

(b) Order directing the State of Chhattisgarh to producePetitioners 2-12 at Delhi and hand them over toBDr.MohiniGiri, Chairperson, Guild for Services, ‘Shubham’,C-25, Qutab Institutional Area, New Delhi;

(c) Order permitting the petitioner no.1 and the advocatesfor the petitioner no.1 along with their interpreters to meetthe petitioners 2-12 at the Guild for Services, New Delhi inCthe presence of Dr.MohiniGiri;

(d) Order requesting Dr.MohiniGiri, Chairperson, Guild forServices, New Delhi, to interview the petitioners and make areport to this Court.”

5. The facts giving rise to the present writ petition may beDsummarised as under :

6. The writ petitioner no.1, namely Himanshu Kumar, claimshimself to be running an NGO in the name of Vanvasi Chetna Ashram,Kanwalnar – Dantewada Chhattisgarh. He claims to be running an NGOfor the welfare and development of the tribals residing in the BastarEregion. He also claims to be rendering help tothe other tribals of theDantewada district of Chhattisgarh.

7. The writ petitioners nos.2 to 13 respectively are the kith andkin of the victims of the alleged massacre.

F8. It is the case of the petitioner no.1 that after the two horrifyingincidents referred to above, the tribals are in state of shock. Theyconstantly remain under the fear of being killed by the Special Forcesreferred to above.

9. It is his case that with view to help the tribals and seek justiceGfor them, he took up the cause and thought fit to prefer the presentwritpetition seeking an investigation into the alleged massacre throughthe Central Bureau of Investigation (CBI) and an appropriatecompensation to be paid to the victims and their families.

10. It is the case of the petitioner no.1 that he helped the tribals tolodge their respective complaints as regards the alleged mass killingsH

that took place on 17[th] September 2009 and 1[st] October 2009 respectively.

11. According to the petitioner no.1, the tongue and other parts ofthe body, such as, the upper limbs, lower limbs, etc. of the family membersof the petitioners nos.2 to 13 respectively were chopped off by the securityforce. It is alleged that the security forces did not spare even the infants.It is also alleged that the breast of 70-year-old tribal woman werechopped off and was stabbed to death by the members of the policeforces. It is also alleged that 2-year-old infant was brutally murdered.The houses of the tribals were burnt. Money and properties were looted.

12. It has been further pointed out that on 8[th] January 2009, 19people were killed by the above referred forces at the village Singaram,Tehsil Konta, District Dantewada.

13. On 18[th] March 2008, 3 tribals were killed at Matwada, SalwaJudum Camp, District Bijapur, by the Chhattisgarh Police and SPOs.

14. It has been pointed out that with respect to the aforesaid twoincidents, the matter was taken up by the National Human RightsCommission.

15. It is the case of the petitioner no.1 that as the Special Forcesand the State of Chhattisgarh itself are involved in the alleged brutalmassacre of the tribals, the investigation of all the complaints should beat the instance of none other than the CBI.

16. In the memorandum of the writpetition, the information asregards the relationship between the petitioners nos.2 to 13 respectivelyand the deceased has been furnished as under :

ABCDEFG

17. The details of the alleged killings on different dates have alsobeen furnished in the memorandum of the writpetition. However, wemay not verbatim reproduce the same in our order.

18. The details on the First Information Reports are as under :ABCDEFGH

736SUPREME COURT REPORTS[2022] 11 S.C.R.ABCDEFGH

737ABCDEFGH

19. It is the case of the petitioners that after the registration of theFIRs referred to above, no action has been taken by the police. No onecame to be arrested. No proper investigation has been undertaken. Nota single statement of any of the eye-witnesses has been recorded. InHsuch circumstances referred to above, the writ petitioners are here before

this Court with the present writpetition seeking relief of investigation ofall the FIRs through the CBI. The petitioners also seek compensationfrom the Government for the alleged atrocities and massacre.

STANCE OF THE STATE OF CHHATTISGARH:

20. The State of Chhattisgarh has refuted all the allegations levelledin the memorandum of the writ petition by filing counter-affidavit dulyaffirmed through one Shri Vimal Kumar Bais, Deputy Superintendent ofPolice, Headquarter – Dantewada, Chhattisgarh, dated 4[th] February2010. The affidavit minutely deals with all the incidents referred to bythe petitioners in the memorandum of the writpetition. We quote thesame as under :

“5. That the State of Chhattisgarh is facing menace ofNaxalism which has been termed as number one securitythreat to nation’s integrity and sovereignty by the Hon’blePrime Minister of India. The State Police with help ofparamilitary forces have to tackle the Naxalism and most ofthe organizations concerning Naxalite movements have alsobeen banned. The State of Chhattisgarh has lost precious lifeof its personnel while defending the State. In last two years,the security personnel who are killed by Naxalite in the Stateof Chhattisgarh would be in the range of 300. In the Districtof Dantewada alone, sixty-five police personnel have died.The State of Chhattisgarh has also stated in its earlier affidavitthat these writ petitions are filed by Naxal sympathizers. Infact, the State of Chhattisgarh verily believes that mountainsof complaints are filed so as to detract the police personnelfrom tackling the menace of Naxalism. The police personnelhave lost their lives while combating the menace of Naxaliteactivities. cavalcade of entire police personnel wasambushed in which even one S.P. died.

PARAWISE REPLY :

1. The contents of paragraph No.1 of the writ petition aredenied and the attack on the police party by the Naxaliteshave been sought to be given the connotation of ‘massacre’.The State of Chhattisgarh have explained the three incidentsof 17.09.09 and 01.10.09 with Naxalites in detail in thesubsequent paragraphs. The word ‘massacre’ is being used

in cursory manner without revealing the true nature of theincidents on 17.09.2009 and 01.10.2009.

RE : INCIDENT OF 17.09.09 [GACHANPALLI]:

team of CoBRA Battalion along with other police officialsstarted off for village Gachanpalli at around 07:45 PM on16.09.2009, when the police party reached villageGachanpalli and cordoned off the Naxal camp and at around5.30 AM, the Naxalite opened fire indiscriminately. The policehad no option but to retaliate in self defence. However evenafter ceasefire, 150-200 Naxalites were able to retreat intodense forest. Several arms and ammunitions were recoveredfrom Naxals including Naxal uniforms. At present, it isregistered as Crime No.4/09 under Sec. 147, 148, 149, 307,I.P.C. and 25/27 Arms Act at P.S. Bhejji of Gachanpalli andthe investigation is carried on by the CID.

RE : INCIDENT OF 17.09.09 VILLAGE - SINGANPALLI :

The Police Force headed by Devnath Sonkunwar started offfor Singanmadgu and while patrolling on 16.09.2009, theyfound Naxal Camp in the jungle of Singanmadgu in theearly hours of morning. There was incessant firing from 200-300 uniformed Naxalites. The police had to opened fire in hisself defence. It would be relevant to mention that many policepersonnel including Kobra AC Manoranjan Singh, AC ShriRakesh Chaurasiya, Shri Uday Kumar Yadav were shot dead.Thus precious lives of police personnel were lost in the cross-fire and the firing continued till 08:00 PM on 18.09.2009.Further enforcement of police personnel were also sought.An FIR No.10/2009 was also registered by P.S. Chintaguphaon 20.09.2009. The case was later on shifted to C.I.D. forfurther investigation in accordance with the recommendationsof the NHRC in Nandini Sunder’s case. One dead body ofMadavi Deva was identified who died during the cross firebetween the Naxalites and the Police.

It would be relevant to mention that S.P. Office have receivedcomplaints of Madavi Hidma S/o Madavi Kosa, Kawasi Kosason of late Kawasi Ganga, Madkam Muke wife of MarkamChula, Madavi Raza son of Madavi Joga, all belonging to

Gachanpalli. The nature of complaints is full of suspicionbecause all the complaints are in same format and typed insame manner, giving arise to suspicion that certainorganizations sympathetic to Naxalites or Naxalite-orientedorganizations are behind the lodging of such complaints.These complaints are being investigated and veracity of thosecomplaints are doubtful as they are in fixed format and typedin same manner. In any way, on 10.12.2009 even visit wasmade to Gachanpalli to record the statements ofComplainants. However no Complainants were found on10.12.2009 as the Naxalites persuaded the Complainants tonot to cooperate with the police. Now the Additional S.P.Dantewada has been entrusted with the job of completingthe Investigation in speedy manner.

RE: INCIDENT OF 01.10.2009 [GOMPAD INCIDENT]:

team of security forces consisting of COBRA, local policeand SPOs had started off on 30.09.2009 for Gompad villageon the information of naxal camp being run near village.When police party was about to reach the village at 06:30AM on 01.10.2009, it came under heavy fire by Naxalites.The attack was repulsed and place was searched. Police didnot find anybody. Afterwards the village was also searchedbut everyone fled away. The above incident is beinginvestigated by Bhejji PS after registration of FIR No.05/09under Sec.147, 148, 149, 307 IPC and 25, 27 Arms Act. Thecase has been transferred to CID for investigation.The SP office received complaints of Soyam Dula son of lateSoyam Dula, Soyam Rama son of late SoyamKanna, Mrs. SodiSambo wife of Sodi Badra, all belonging to Gompad village,all of them desirous of registration of crime against securityforces for alleged killing of their relatives. The reason forholding further investigation in the manner is because thecomplaints are filed after much delay of the alleged crimeand secondly, all the complaints are in fixed format andtyped in same manner giving rise to suspicion that thosecomplaints have been engineered by Naxals frontalorganizations to derail the investigation.

ABC

It is also moot point to note that during the course ofinvestigation, S.D.O.P. Konta and his team had visited thealleged Complainants but those Complainants wereuntraceable. The State of Chhattisgarh is of the firm beliefthat those Complainants are only working at the behest ofNaxalites and are even under threat of Naxalites. The Stateof Chhattisgarh thought that since petitioner No. 1 is in activecontact with complainants and has even chosen to file writpetition before this Hon’ble Court, it would be advisable thatpetitioner No. 1 himself comes forth with all the complainantsto expedite the investigations. However this request of police,to cooperate in the investigation, is being adverselycommented upon by the petitioner No. 1 before this Hon’bleCourt.

Crime No. 05/2009 under Sec. 147, 148, 149, 307 IPC andSec.27/27 of Arms Act has been registered on the report ofSecurity Forces whereas Crime No. 01/2010 under Sec. 396,397 IPC has been registered in this regard as per the enquirybased on application made by Soyam Rama. The case is nowinvestigated by C.I.D. in accordance with the recommendationof NHRC in Nandini Sunder’s case.

2. The contents of paragraph No.2 of the writ petition arevehemently denied. It would be evident that the aforesaid twoincidents of 17.09.2009 and one incident of 01.10.2009 havealso brought untold misery and deprivation of policepersonnel and several police personnel have lost their lives.The contents of paragraph No.2 about alleged massacre iscompletely misleading and truth of the matter is mat petitionerNo.1 after the Naxalite incident has instigated villagers tolodge complaints. It is denied that woman had her breastcut-off and two year old infant was brutally murdered.Similarly it is also denied that blind man of 70 years old wasexecuted.

3. & 4. The contents of paragraphs No.3 & 4 of the writpetition are denied as long as they pertain to the incidents of17.09.2009 and 01.10.2009. The FIR relating to the incidentsof 17.09.2009 and that of 01.10.2009 have already beentransferred to C.I.D. in accordance with the NHRC

recommendations in Nandini Sunder’s Case. The State ofChhattisgarh would follow the NHRC recommendationregarding the incidents of 17.09.2009 and 01.10.2009 andtransfer of case to the CBI is completely unwarranted. In anycase, whether matter could be transferred to CBI or not ispending before the Constitution Bench of this Hon’ble Courtand the judgement is still awaited.

5. In response to the contents of paragraph No.5 of the writpetition, it is stated that writ petitions concerning incidentsdated 18.03.2008 at District Bijapur and 08.01.2009 atDistrict Dantewada are already pending before the Hon’bleHigh Court as Writ Petition Nos.211/2008 & 363/2009respectively. The Hon’ble High Court of Chhattisgarh is inseisen of the matter and the deponent has already traversedthe pleadings before the Chhattisgarh High Court.

6. The contents of paragraph No.6 of the writ petition aredenied for want of knowledge.

7. In response to the contents of paragraph No.7 of the writpetition, it is submitted that incident of 17.01.2009 is alreadyexplained in the preceding paragraphs and therefore itrequires no further reply. The facts have been completelydistorted and are stated in false manner. It has already beenstated that Madavi Deva was the uniformed Naxalite whosebody found from the site while the incident on 17.09.09 atSingampali. As regards case of burning in hot oil of MuchakiDeva, though no complaint has been made to police. It isonly found in press release dated 30.10.2009 of the factfinding team of PUCL (Chhattisgarh), PUDR (Delhi, VanvasiChetna Ashram (Dantewada), Human Rights Law Network(Chhatisgarh), Action Aid (Orissa), Manna Adhikar(Malkangiri) and Zilla Adhivasi Ekta Sangh (Malkangiri),that Muchaki Deva has been taken to Bhadrachalam bymembers of the fact finding team. However this entireallegation of burning in hot oil is turned out to be totallyconcocted story as evident from the article published inHindustan Times in which doctors of Bhadrachalam havedenied to have seen such burn case at all. As far as theallegation of certain persons being ‘tied’ and paraded Is

concerned, it is maintained that when security forces reachedto the village Gachanpalli, after repulsing the attack, no onewas found and everybody had fled to the jungle. It is theNaxalites who are unleashing terror and the blame is put onthe State. It is reiterated that the entire efforts seems to eulogizethe Naxalite movement and to bring every effort to curtailNaxalism in poor light.

The incident of 01.10.2009 has been explained in detail inthe preceding paragraphs and the facts stated in theparagraph under Reply are totally distorted and far from truth.

As regards allegation of 8 arrested and two missing, it couldbe said that an FIR No.27/2009 dated 02.10.2009, P.S. Konta,has been registered which is relatable to attack by Naxaliteson security forces in the jungle of Nulkatong on 01.10.2009.In above incident, two dead bodies were recovered and eightpeople had been arrested. The two dead bodies were broughtto P.S. Konta and inquest by Executive Magistrate and post-mortem report was made as per provisions of law.

The alleged killings at Chintagufa (the other one than that ofSiganpalli) came to the knowledge to the State of Chhattisgarhonly after the receipt of this writ petition and same is beingEinvestigated upon.

The recognition of Panda Soma and Ganga of Asargudavillage are completely misplaced. It is reiterated that no personby the name of Ganga of Asarguda village have been SPO inpolice record of Dantewada. Panda Soma was killed in blastby Naxalites on 06.05.2009 and there is also deathcertificate to that effect. Thus the presence of Panda Somaon 01.10.2009 is completely falsified. The allegations oflooting, burning of houses, harassment & torture by thesecurity forces are also denied vehemently.

8. The contents of paragraph No.8 of the writ petition aredenied. There have been no extra judicial killings and in factseveral police personnel have also lost their lives. ThePetitioners No.2 to 13 may not like go to the police stationbut they can certainly go to Magistrate for registration ofFIR under Section 156(3) of the Code of Criminal Procedure.

The judicial system even at the grass-root level is independentand would be in position to monitor the investigation in aneffective manner.

9. &Ors. In response to the contents of paragraphs No.9, 11,12, 13, 14, 15, 17, 18, 19, 20 and 21 of the writ petition, it issubmitted that the complaint are under investigation and thestories are more in the nature of ‘make-believe’. The trueincident has already been narrated in the precedingparagraph. The Complainants have not been found wheneverthe places of their residence is visited by the investigatingauthorities. The S.P., Dantewada, made request to thepetitioner No.1 to furnish the details of Complainants orproduce the Complainants themselves so that furtherinvestigation could take place. However petitioner No.1 hastaken umbrage, which would be evident from the pleadingsbefore this Hon’ble Court. In fact, the police is not gettingany assistance from the petitioner No.1 who claims to berepresentatives of petitioners No.2 to 13.

10. In response to the complaint filed by Kunjan Hidma asmentioned in the contents of paragraph No.10 of the writpetition, an enquiry was instituted and enquiry report hasbeen submitted by S.D.O.P. Konta. It has been stated thatnobody was found by the police personnel when they visitedvillage Belpocha on 07.12.2009. It is relevant to mention thatvillage Belpocha is situated only 14 kms from P.S. Konta butthe Complainant did not report the matter at P.S. Konta.

It is strange that killing of his son KunjamHurra was notreported to the police, even though the village Dhondhara issituated nearby. The village men of Dhondhara SarpanchMarkam Krishana, former Sarpanch Markam Sitaram, PunamNaraiya were interrogated about the alleged incident. Theyrefused to have any knowledge about the incident. Thus noevidence was found and the complaint was found to be falseafter discreet enquiry.

16. In response to the contents of paragraph No.16 of thewrit petition, it is submitted that an enquiry report wassubmitted by S.D.O.P., Konta in which it is stated that S.D.O.P.Konta tried to contact the Complainant at village Nulkatong

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on 09.11.2009 but no one was found in the village. It isrelevant to mention that the two dead bodies of unknownnaxals were brought to P.S. Konta and an inquest was alsoprepared by the Executive Magistrate. Nobody had turnedup for identification of dead bodies for almost three days. AnFIR No.27/2009 under Sec.147, 148, 149, 307 IPC read withSec.25 & 27 of Arms Act have been registered at P.S. Konta.Now the Addl. S.P. Dantewada has been given charge to holdthe enquiry in speedy manner.

22. The contents of paragraph No.22 of the writ petition aredenied. It is respectfully submitted that the villagers are livingin state of fear from Naxalites and not from the State.

23. The contents of paragraph No.23 of the writ petition arevehementiy denied. The State of Chhattisgarh believes thatstory of hot boil is not seriously believed even by the petitionerNo.1 and is fiction.

24. The contents of paragraph No.24 of the writ petition aredenied. Certain matters are subjudice before Hon’ble HighCourt of Chhattisgarh at Bilaspur while in others theComplainants have not come forward and did not cooperatein the investigation. The State of Chhattisgarh is committed toregister an FIR and even hold investigation provided theComplainants cooperate in the investigation process. In anycase at the F.I.R.s concerning incidents of 17.09.09 and01.10.09 have been duly registered and investigations aregoing on.25. to 27. The contents of paragraphs No.25 & 26 of the writpetition are denied and this subject matter is already part ofthe writ petition filed before Hon’ble High Court ofChhattisgarh.

28.1 The contents of paragraph No.28.1 of the writ petitionare denied and incidents of 17.01.2009 and 01.10.2009 havealready been dealt with in the preceding paragraphs.

28.2 & 28.3 The contents of paragraph No.28.2 of the writpetition are vehemently denied. The FIRs have been registeredand an investigation has been transferred to the C.I.D. inaccordance with the recommendations of the NHRC in

Nandani Sunder’s case. It is also settled proposition of lawthat there may not be more than one FIR regarding the sameincident and once an FIR is registered, then the subsequentcomplaints about the same incident would be termed asstatements under Sec.161 of the Code of Criminal Procedure.Even if the second FIR is registered about the same incident,it would have little effect on the overall investigation of thecase. The State of Chhattisgarh is cognizant of the complaintsand has even stated to the petitioner No.1 herein to comeforward with the Complainants so that there statements couldbe recorded and investigation is duly completed. The State ofChhattisgarh reiterates that if the Complainants or thePetitioners come forward then the State would readily recordtheir statements and even register separate FIRs apart fromthe FIRs registered by the Police so far.

28.4 The contents of paragraph No.28.4 of the writ petitionare denied because the investigation is done in the propermanner and there is no apparent irregularity or omission inthe investigation which would warrant investigation by theCBI. In any case, whether an investigation could be made byCBI at the direction of the Hon’ble Court is pendingconsideration before the Constitution Bench.

28.5 The contents of paragraph No.28.5 of the writ petitionare vehemently denied. The police has duly registered the FIRsand investigation is conducted in accordance with the NHRCrecommendations in Nandini Sunder’s case. It is the Naxalswho have attacked the posse of policemen and this allegationof ‘massacre’ is invoked for misleading this Hon’ble Court.

28.6 The contents of paragraph No.28.6 of the writ petitionare denied. The Complainants are in touch with the petitionerNo.1 and the State of Chhattisgarh reiterates that if theComplainants come forward then their statements shall berecorded and investigation shall be done accordingly.However the Complainants have played truant. Normally oneFIR is registered for one incident and subsequent complaintsare recorded as statements under Sec.161 of the Code ofCriminal Procedure and investigation takes place accordingly.Even if formal separate FIR is registered, the Complainants

Aand some of the Petitioners shall have to come forward tocooperate with the investigation.

28.7 The contents of paragraph No.28.7 of the writ petitionare vague and hence denied.

28.8 The contents of paragraph No.28.8 of the writ petitionBare denied. It is respectfully submitted that word ‘massacre’ ismisnomer. The State has not violated Articles 14, 19 and 21of the Constitution of India.”

21. We take notice of the fact that an affidavit-in-rejoinder hasbeen filed, duly affirmed by the petitioner no.1, to the aforesaid replyCfiled by the State of Chhattisgarh. In the rejoinder, the petitioner no.1has once again reiterated what has been stated in the writpetition.

CoBRA 201 BATTALION:

22. An affidavit-in-reply has also been filed on behalf of theDrespondent no.3, duly affirmed by one Shri Dilip Kumar Kotia (201CoBRA Bn. - SAF). Few relevant averments made in the reply are asunder :

“7(1) Regarding Gachanpalli murders: No civilian was killedor injured by the CoBRA/SAF troops. The killing of 02 yearsold child and 01 blind man of 70 years are denied. However,Eit is the known fact that naxalites often use civilians as humanshield. It is further submitted that the CoBRA troops fired onprovocation of naxalites in self defence and to defendthemselves at Gachanpalli on 17/09/09 when they wereambushed by the naxalites. Hence, the probability of naxalitiesFthemselves indulging in these acts of terrorizing the locals tocoerce them to join their naxal movement can not be ruledout.

(2) Regarding the case of Madvi Deva: The troops of CoBRA201 Bn did not carry out operation in village SinghanaplliGon 17/09/09. It is submitted that one of the naxalites who waswearing black naxal uniform and carrying muzzle loadedgun was killed in an encounter with the CoBRA/SAF Bn atthe time of unearthing of naxalite gun factory atSinghanmadugu. His dead body was later on brought to PSChintagufa Distt. Dantewada for post mortem and further

legal action. FIR No. 10/2009 dated 20/9/2009 u/s 307, 395,397 of IPC, Sections 25/27 Arms Act and Sections 3,4 ofExplosives Act was also lodged with PS Chintagufa(Dantewada) about the incident. It is to mention here that ifthe said person was Madavi Deva of Singhanpalli villagethen he was definitely naxalite and not an innocent civilian.It is further mentioned here that during the course ofunearthing the Arms factory of naxalites and returning backour troops were ambushed by the naxalites near villageSinghanmadugu where 06 brave commandos of CoBRA/SAFhave lost their precious lives and body of those martyrsrecovered only on 19/09/09 morning. The troops of CoBRA/SAF had no option except to retaliate which lasted for aboutone and half hour.

(3) Regarding Burnt in hot oil: The troops of CoBRA Bn./CRPF had neither conducted any operation at villageOndherpara nor committed any act as alleged. Hence, theallegation against this Force is totally false and frivolous.

(4) Regarding Tying and parading: The allegation againstthe Force personnel is totally false as no person wasapprehended or arrested during the operation.

(5) Regarding Force displacement and terror: There arefrequent reports of murder and torture of innocent people bynaxalite cadres to terrorize the masses in the name Maoistideology and it has also been informed by intelligence sourcesthat naxalites are seen in security force uniforms in this region.Hence, the probability of naxalites themselves having indulgedin these acts of terrorizing the tribals to coerce to supportand join their naxal movement cannot be ruled out. It seemsto be parts of naxals psychological war fare against thesecurity forces with intention to stall and jeopardize theongoing operations against them in their strong hold areas.

(6) Regarding Gompada ‘encounter’ dated 1/10/09: On thebasis of intelligence received from sources regarding presenceof naxalites in the village of Gompad under the jurisdictionof PS Bheji on dated 30/09/09 special joint operation wasplanned involving party of SAF 201 Bn., Civil Police andSPOs. The party was given task to carry out cordon and search

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Aat Gompad Village. The troops were carrying man pack (bagcontaining various items of troops) and all the other logisticand administrative support items sufficient for 03 daysduration. Accordingly, CoBRA/SAF troops comprising AC-02,SOs-04, Other Ranks-66, HC/RO-02 under the command ofShri Ravindra Singh Shekhawat, Asstt. Comdt. alongwith oneBASI of civil police, 08 constable of civil police and 21 SPOsleft from the base camp of PS Bheji on 30/09/09. When CoBRA/SAF troops were about 01 Km short of village Gompad atabout 0630 hrs on 01/10/09 naxalites ambushed the troopsand opened heavy fire. CoBRA/SAF troops had no otherCoption and were forced to retaliate the fire which lasted forabout 20 minutes and naxalites fled away from the ambushsite. When the naxalites were fleeing they were seen carryingtheir injured colleagues. After the naxalites fled away, thearea was thoroughly searched by our troops and Handgrenade-02, Tiffin bomb-01, Solar panel-01, fired case of 7.62Dx 51 mm carts-03, Detonator-02, Cap-01 were recovered fromthe ambush site which were left by naxalites in hurry whilefleeing the site. Troops moved further and searched villageGompad where no villager was found. Then our troopsreturned back. However it is submitted that due to strong actionEagainst the naxalites by the CoBRA/SAF Bn in the jointoperation since 16/09/09 onward in the interior naxal affectedand dominant villages destroying and unearthing the Armsfactory of the naxalites, the naxalites have lost the groundand baffled. And this strong action of the CoBRA/SAF BnFwas highly appreciated and published in the local newspapers.Hence, the petitioners in connivance with the naxalites havefalsely alleged against the local police and SAF 201 to stallthe operations against naxalities with well thought outnefarious designs.

(7) Regarding more killings: Neither our Force carried outany operations at Chintagufa on 01/10/2009 nor killed orinjured any innocent civilians. The allegation is false. Hence,allegation is vehemently denied.

(8) Regarding travails of 2 years old: No civilian or childwas bodily harmed/tortured by Force personnel during the

operations. The allegation against CoBRA/SAF Force is totallyfalse and fabricated. Hence, vehemently denied.

(9) Regarding 8 arrested and 2 missing: Force of this 201CoBRA/SAF Unit was neither deployed for operational dutyin Mukundtong and Junitong villages nor they have committedany such act mentioned in allegation. Hence, vehementlydenied.

(10) Regarding looting and burning of property and houses:Force personnel of 201 CoBRA(SAF) Bn. neither looted norstolen any property/money from any of the houses duringoperation. Rather the naxalites burnt down their own traininginfrastructure and hide outs when Force personnel carriedout operations at their location. The allegations against Forcepersonnel are fabricated and totally false as they werecarrying sufficient ration and other items required for theirpersonal use during the operations.

(11) Regarding harassment and torture: No civilian was eitherharassed or tortured during the operation by 201 CoBRA(SAF)Bn. as alleged. Hence, this allegation against the Forcepersonnel is false and denied.

(12) Regarding presence of SPOs and SalwaJudum leaderwith security forces: Personnel of 201 CoBRA (SAF) did notconduct operation in Mukudtong village and hence noquestion of SalwaJudum leader accompanying them. However,CoBRA personnel carried out operation in Gomapada villageon 1/10/09 alongwith civil police and SPOs.

(13) Regarding forced displacement and terror: No houseswere damaged/ burnt by the Force personnel and no forcibledisplacement of villagers carried out. Hence, this allegationagainst Force personnel is totally false and denied.

8. In reply to para-8, it is submitted that no civilian was killedor tortured by the SAF 201 personnel and all the allegationsagainst this Force are false and fabricated. It is the duty ofthe Paramilitary Force to step in aid of the people and not toharass them or to commit any activity derogatory to the humanrights. In fact, the Force is operating at the risk of life of

their personnel engaged in protecting life and property ofthe citizens.

9. In reply to para 9, it is submitted that the allegation isfalse, hence denied. In fact the troops were ambushed nearthis village Gompad and after an exchange of fire the troopsseized Hand Grenade-02 Nos, Tiffin Bomb-01,Booby trap-1Solar Panel-01, fired cases of 7.62x51 mm cart-03, detonator-02, Cap-01.

10. In reply to para 10, it is submitted that the troops of 201CoBRA (SAF) Bn. did not carry out any operation at Dhodhra.The allegations are totally false, baseless, hence denied.

11. In reply to para 11, it is submitted that no civilian waseither caught or killed by this Unit personnel neither anymoney was ever looted. However, on 17/09/2009 our troopswere ambushed by the naxalites in Gachanpalli and the troopsretaliated in self defence. This allegation against 201 CoBRA(SAF) Bn. is false and baseless and hence denied.

12. In reply to para 12, it is submitted that the allegation isfalse as no such act was committed by 201 CoBRA (SAF) Bn.and hence denied.

13. In reply to para 13, it is submitted that the allegations aretotally false as no such act was committed by 201 CoBRA(SAF) Bn. and hence denied.

14. In reply to para 14, it is submitted that the allegation istotally false as no such acts were committed by 201 CoBRA(SAF) Bn. No person was beaten, stabbed or killed by theForce personnel. No property was looted or burnt. However,the vagueness or truthfulness of the allegations leveled inthe petition is borne out by the fact that the name and numberof the petitioner given in the para does not tally with the listof petitioners in the cause title of the Writ Petition.

15. In reply to para 15, it is submitted that the allegation istotally false as no such act was committed by 201 CoBRA(SAF) Bn. However, the name and number of the petitionergiven in the para does not tally with the list of petitioners inthe writ petition.

16. In reply to para 16, it is submitted that the Force of 201CoBRA (SAF) Bn. did not carry out any operation in villageNulkatong on 1/10/09. Hence, the allegation against this Unitis totally incorrect and baseless. However, the name andnumber of the petitioner given in the para does not tally withthe list of petitioners in the writ petition.

17. In reply to para 17, it is submitted that 201 CoBRA (SAF)Bn. personnel did not kill villagers or burnt their houses.However, on 17/9/09 201 CoBRA (SAF) Bn. personnel carriedout operation in village Gachanpalli during which ourpersonnel were ambushed by heavily armed naxalites and thepersonnel retaliated back in self defence.

18. In reply to para 18, it is submitted that 201 CoBRA (SAF)Bn. personnel did not kill villagers nor burnt their houses.However, on 17/9/09 201 CoBRA (SAF) Bn. personnel carriedout operation in village Gachanpalli during which ourpersonnel were ambushed by heavily armed naxalites and thepersonnel retaliated back in self defence.

19. In reply to para 19, it is submitted that 201 CoBRA (SAF)Bn. personnel did not kill villagers or burnt their houses.However, on 17/9/09 201 CoBRA (SAF) Bn. personnel carriedout operation in village Gachanpalli during which ourpersonnel were ambushed by heavily armed naxalites and thepersonnel retaliated back in self defence.

20. In reply to para 20, it is submitted that the allegation isfalse and denied. Although 201 CoBRA (SAF) had carriedout operation in village Gompada on 1/10/09 but no such actwas committed by SAF personnel.

21. In reply to para 21, it is submitted that one of the naxaliteswho was wearing black naxal uniform and carrying amuzzle loading gun was killed in encounter with this Unitpersonnel at the time of unearthing of naxalites gun factoryat Singhanmadugu on 17/09/09. His dead body was later onbrought to PS Chintagufa and handed over to Police Stationfor post mortem and further action. Copy of the photographof the said militant is placed at Annexure R 12. In thisconnection FIR No.10/2009 dated 20/9/2009 was also lodged

with PS Chintagufa (Dantewada). It is also mentioned herethat while returning back after unearthing the arms factoryof naxalities, our troops were ambushed by naxalites in whichsix commandos of this unit lost their precious lives.

22. In reply to para 22, it is submitted that naxalite cadreshave been often wearing security force uniform to terrorizethe masses to defame the security forces and demoralize themand as such the allegation is false and denied.

23. In reply to para 23, it is submitted that 201 CoBRA (SAF)troops did not carry out any operation in village Onderpara.Hence, the allegation is denied.

24. No comments are offered in reply to para 24.

25. In reply to para 25, it is submitted that CRPF is not involvedin any incident as alleged and hence denied.

26. In reply to para 26, it is submitted that this point does notpertain to CRPF/ SAF Unit. Hence, the allegation is denied.

27. In reply to para 27, it is submitted that this point does notpertain to this CRPF/ SAF Unit. Hence, the allegation isdenied.

REPLY ON GROUNDS:

28. 28.1: In reply to para 28.1, it is submitted that the groundsmade by the petitioners are false and fabricated because noneof the act mentioned in the Writ Petition have been committedby the troops of this SAF/CRPF unit. However, being aspecialized armed force of the union, the troops are deployedFto enforce the law of the land and to protect the life andproperty to common people. There are frequent reports ofcivilian killings and torture of innocent by naxalite cadreswearing security forces’ uniforms to terrorize the masses inthe name of maoist ideology and they might have indulged insuch acts to defame the security forces and demoralize themGwith the intention to stall and derail operations in their stronghold areas.

28.2: No comments are offered in reply to para 28.2.28.3 to 28.9: No comments are offered in reply to para 28.3to 28.9

PRAYER:

a) That the petitioner’s request for CBI enquiry appears to beintended to delay the criminal investigation already beingconducted by the State police against the naxalites. Hence,the prayer deserves not to be entertained.

b) It is most respectfully and humbly submitted that theconsideration and/or granting the petitioners’ prayer foraward of compensation to such naxalite who was in naxaliteuniform as well as having muzzle loaded gun as killed by the201 CoBRA/SAF Bn in village Singhanmadugu is totallymisplaced and it is bonafide believed that Govt. funds i.e. thetax payers’ hard earned money does not deserve to be spentfor awarding compensation to those who have lost lives whilebeing part of insurgent naxal acts which will in turn demoralizethe Forces fighting naxalites whose duty is to protect the lifeand property of the people and to safeguard integrity andsecurity of the country. Hence, this prayer of the petitionersalso deserves to be rejected. Hence, Writ Petition deserves tobe dismissed with heavy cost on the petitioners for havingurged and alleged baseless, false and unsustainableallegations.”

23. We also take notice of one further affidavit-in-reply filed onbehalf of the respondent no.3, duly affirmed by Shri Barun Kumar Sahu,Director (Personnel), Police-II Division, Ministry of Home Affairs. Wequote the averments made therein as under :

“2. I say that I have read and understood the contentsmentioned in the affidavit dated 22.04.2010 filed by thePetitioner and that the petitioner has filed the affidavit underreply to prove the existence of No.9 Smt. Madavi Hurre in theWrit Petition as she could not be produced before the Hon’bleCourt by the petitioner. It is stated that the petitioner has filedseveral copies of the pages of the Tehalka magazine on thebasis of which he is trying to prove the existence of thepetitioner in question. The magazine or newspaper are notthe primary evidence or authentic proof of any material orfact and have no exclusive evidentiary value. Hence, theproduction of copies of the pages of Tehalka magazine are

inadmissible and same are opposed. Also that the petitionerno.1 has been trying since the very beginning to blame thesecurity Forces, fighting with naxalities, with the imaginarycharge of atrocities/ arsons which they have miserably failedin proving and also trying to unnecessary lengthen thelitigation by putting up various miscellaneous applicationswithout any relevance to the case. The manner in which falseallegations have been made from time to time against thesecurity forces is matter of record. The whole attempt is todemoralize the security forces by tarnishing their image andshaking their confidence. It is also pertinent to mention herethat the authenticity of Tehalka magazine, which the petitioneris relying upon cannot believed as the dates mentioned inmagazine are not correct.

PARAWISE REPLY:

1. The contents of para 1 need no comments.

2 The reply to the contents of para 2 it is stated that the nameof Madavi Hurre is only mentioned in the list of petitionersand there is no mention in the writ petition that she has sufferedany loss or injury at the hands of security forces. The Writpetition does not make mention that she is the wife of MadviDeva. The petitioner has tried to prove her existence on thebasis of her thumb impression on the vakalatnama but thedocument is not produced as Annexure. Hence, the fact cannotbe admitted as proved. The petitioner has failed to producethe witness in the court. If she is available, there should notbe any objection in her production before the Hon’ble court.The fact of visit of the Madavi Hurre to Delhi on 20.10.2009is not proved at all. On the other hand it is also humbly statedthat all the 10 petitioners produced have not blamed theCRPF/ COBRA (SAF) of any of the killing/ atrocities as allegedby the petitioner no.1 in the writ petition.

3. In reply to the contents of para 3 to 8 , I say that the TehalkaMagazine (7th November, 2009 at P/37) have published thephotograph of lady with child in her lap. The magazinedescribes her to be resident of village Singanmadgu whereasshe has been shown as resident of village : Ganchapalli now

the petitioner has also added that she is resident of VillageSinganpalli/Singanmadgu. The contradiction in name ofvillages is apparent and hence unbelievable. The magazinehas stated in this report that the incident had taken place onOctober 17, which is wrong and magazine have published itwithout verifying the facts which clearly shows that the mainintention of the petitioner is to malign the image of the securityForces, CRPF/COBRA (SAF) engaged in anti-naxaloperations, it is also pertinent to mention here that thePetitioner has only mentioned names of persons whoaccording to him met the lady and interviewed her but stillcould not establish her signing the writ petition and hencecannot be relied upon.

4. In reply to the contents of para 9, I say that in almost allthe applications/affidavits, the petitioner no.1 is seen to beinitiating or at times one Shri Pushkar Raj of PUCL is seen tobe asking for impleadment on various reasons the same whichshows that the other petitioners i.e. 2 to 13 have beenunnecessarily included on the behest where as10 petitionerswho were produced before the Hon’ble Court have not blamedthe CRPF/COBRA (SAF) personnel for any of the atrocitiescommitted as alleged in the writ petition. copy of the list ofapplications made by petitioner no.l& Shri Pushkar Raj isenclosed herewith as Annexure-A/1.

It is also pertinent to mention here that on 06.04.2010, in anincident, the naxalites have killed 75 CRPF personnel. Thedeath of 75 CRPF personnel and one civil police personnelon 6/4/2010 clearly indicates the menace of naxalism in Stateof Chattisgarh and the troops are engaged to fight naxalismto protect the integrity and in fact the very existence of thedemocratic system. Now the petitioner with his interviews tovarious electronic media channels like NDTV India throughits various discussion forunis has tried to malign the imageof the CRPF/COBRA (SAF) by blaming them whereas thematter is subjudice before the Hon’ble Supreme Court, hence,the petitioner himself had taken up the role of Judge in thismatter, which clearly shows the intentions of the petitionerno. 1 in the matter.”

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24. We may now look into the affidavit duly affirmed by ShriRajesh Kukreja, Additional Superintendent of Police, HeadquarterDantewada, Chhattisgarh. In this affidavit, the information as regardsthe compensation paid to the members of the family of the deceased hasbeen furnished. We quote the same as under :

“3. It is submitted that in the affidavit dated 23.04.2010 thepetitioner has stated that Madvi Hurre is resident ofSinganpalli/Singanmadgu which is different from the nameof the village (Gacchanpalli) mentioned in the Writ Petition.In the same affidavit the petitioner has mentioned Late MadviDeva was the husband of petitioner no.9. This is differentfrom the name of husband mentioned in the Writ Petition whichis Madvi Hurra.

4. It is submitted that on further investigation regardingpetitioner no. 9 has revealed that there is no such person bythe name of Madvi Hurre in village Singanpalli/ Singanmadgu.This is also confirmed by the Tehsildar, Konta Sub Division.A copy of report and certificate issued by the Tehsildar Konta,Sarpanch and Secretary of Burkalanka Gram Panchayat andSecretary Gram Panchayat Pentapar is collectively enclosedand as marked as Annexure R-1. There is no such person asper the voter’s list of village Gacchanpalli and Singanmadgu.A copy of voters list of Village Ganchapalli and Singanmadguare collectively enclosed herewith and the same is marked asAnnexure R-2.

5. It is further submitted that further investigation andenquiries have revealed that the petitioner No.6 is Madvi Pojjais still in Andhra Pradesh.

6. It is submitted that sum of Rs.4,00,000/- has beensanctioned to be paid to the petitioner no.2 Soyam Rama videCollector Dantewada order no. 752 dated 4.03.2010 ascompensation for death of four members of his family.

7. It is submitted that sum of Rs.1,00,000/- has beensanctioned to be paid to the petitioner no. 4 Madvi Hidmason of Madvi Podiya vide Collector Dantewada order no.756 dated 4.03.2010 as compensation for death of his cousinbrother of his family.

8. It is submitted that in the 164 statement recorded on11.03.2010, the petitioner no. 5 (Madvi Sukda) has statedthat his son was killed three years ago whereas in thecomplaint filed with the writ petition he has stated that hisson was killed on 17.09.2009. Since the two statements aredifferent hence further investigation is being conducted toarrive at the truth. For the reasons mentioned above nocompensation has been paid to petitioner no. 5.

9. It is submitted that sum of Rs.One lakh has been sanctionedto be paid to the family member (Dudhi Bhima) of petitionerno. 6 vide Collector Dantewada order no. 756 dated4.03.2010 towards compensation for death of his cousinbrother of his family.

10. It is submitted that sum of Rs. Two lakh has beensanctioned to be paid to the petitioner no. 7 vide CollectorDantewada order no. 752 dated 4.03.2010 as compensationfor death of two members of his family.

11. It is submitted that compensation has not been paid topetitioner no. 3 & 8 since investigation is being carried out.

12. It Is submitted that sum of Rs.1,00,000/- has beensanctioned to be paid to the Petitioner no. 10 (Madavi Raja)vide Collector — Dantewada Order No.756 dated 04.03.2010.

13. It is submitted that sum of Rs.1,00,000/- has beensanctioned to be paid to the Petitioner No.11 - Smt. MadkamMuke vide Collector - Dantewada Order No.756 dated04.03.2010.

14. It is submitted that sum of Rs.1,00,000/- has beensanctioned to be paid to the Petitioner No.12 — Shri KowasiKosa vide Collector - Dantewada Order No.756 dated04.03.2010.

15. It is submitted that sum of Rs.10,000/- has beensanctioned to the Petitioner No.13 - Smt. Sodi Sambo forsustaining injury vide Collector - Dantewada Order No.889dated 11.03.2010.

16. It is respectfully submitted that further investigation inthe cases registered are being carried out by the State CID.”

ASUMMATION OF THE STANCE OF THE RESPONDENTS:

25. Thus, if we have to sum up the stance of the respondents,then the same is that the entire case put up by the writ petitionersportraying the incidents of 17[th] September 2009 and 1[st] October 2009respectively as brutal massacre by the members of the different PoliceBand Paramilitary Forces is palpably false. All the averments made in thememorandum of the writpetition are exfacie false and fabricated. Anattempt has been made to mislead thisCourt. False allegations have beenlevelled on the police and the paramilitary forces with malafide intentionto change the narrative of the incidents, i.e. to portray the dreaded LeftWing Extremists (Naxals), who were waging an armed rebellion againstCthe security forces of the country and threatening the sovereignty andintegrity of the country, as innocent tribal victims being massacred bythe security forces.

26. It is the case of the respondents that this false narrative of themassacre of innocent tribals by the security forces was created toDsomehow achieve immediate cessation of the advancement of thesecurity forces against the concerned armed Left Wing Extremists. Thepurpose and motive of the present writ petitioners was also to derail theongoing efforts of the security forces in neutralizing the Left WingExtremism movement and the armed Left Wing Extremists; to depriveEthe dignity and credibility of the security forces; to lower the morale ofthe security agencies by portraying them as demons and national villains,i.e. slayers of innocent tribal people; and to foist false cases on them sothat in future such false cases would act as deterrent. In short, thecase of the respondent is that the entire writ petition is nothing but afraud played upon with the Court.F

27. All the First Information Reports were thoroughly investigatedand charge sheets have been filed in the concerned courts for differentoffences under the Indian Penal Code, 1860 (for short, “the IPC”) andother enactments. All the accused persons named in the charge sheetshave been shown as absconding. It is not that the investigation has notGbeen carried out. The filing of the charge sheets is prima facie materialto put the accused persons named therein on trial. The charge sheetsfiled against the accused persons named therein bear eloquent testimonyto the fact that the allegations levelled against the police and paramilitaryforces are absolutely false and reckless.

28. The petitioners have miserably failed to point out as to in whatmanner the investigation carried out could be said to be perfunctory.Without even studying the charge sheets how can it be asserted on theirpart that nothing has been done by the investigating agencies. Even forthe purpose of making out case for further investigation, the infirmitiesin the charge sheets must be pointed out to the satisfaction of the Court.Nothing of that sort has been pointed out to this Court.

SUBMISSIONS ON BEHALF OF THE WRIT

PETITIONERS :

29. Mr.Colin Gonsalves, the learned senior counsel appearing forthe petitioners, vehemently submitted that the alleged brutal incidents ofkilling of the tribals should be investigated through the CBI. He wouldsubmit that the family members of the petitioners were killed in cold-blood by the Chhattisgarh Police, Special Police Officers (SPOs)appointed by the Chhattisgarh Government in collusion with the activistsof the SalwaJudum (group of vigilantes sponsored by the ChhattisgarhGovernment) and the Central Paramilitary Forces consisting of the CRPFand the CoBRA Battalion, in two separate attacks dated 17[th] September2009 and 1[st] October 2009 respectively.30. Mr.Gonsalves would submit that the State of Chhattisgarhand the Chhattisgarh Police have not done anything so far despite thefact that the eye-witnesses have identified the accused persons in someof the cases. He would submit that not single eye-witness has beencalled so far for the purpose of recording of his statement. The learnedsenior counsel would submit that the only hope is the CBI.

31. In such circumstances referred to above, Mr.Gonsalves praysthat this Court may issue mandamus directing the CBI to carry out theinvestigation of all the First Information Reports referred to above.

SUBMISSIONS ON BEHALF OF THE RESPONDENTS:

32. Mr.Tushar Mehta, the learned Solicitor General appearing forthe Union of India, on the other hand, has vehemently opposed the presentwritpetition. He would submit that the petition deserves to be rejectednot only with exemplary costs, but each of the petitioners should be heldguilty of levelling false charges of offence and of giving false andfabricated evidence before this Court with an intention to procureconviction for capital offence or for life imprisonment against thepersonnel of security forces with view to screen off the actual offendersof the Left Wing (Naxal) terrorism.

33. Mr.Mehta would submit that if such palpably false andmotivated writ petition at the instance of an NGO is entertained by thisCourt, then the same may lead to disastrous results as the very moraleof the different police and paramilitary forces fighting against the Naxalswould be shaken.

B34. Mr.Mehta, in the course of his submissions, highlighted veryshocking picture as to how the Naxalites, over period of time, havebrutally killed the members of the police forces. According to Mr.Mehta,the mastermind behind this writpetition is the petitioner no.1 claiming torun an NGO for the welfare and interest of the tribals. According toCMr.Mehta, the petitioners nos.2 to 13 are absolutely rustic and illiteratetribals. It is at the instigation of the petitioner no.1 that they might havethought fit to join as the petitioners.

35. Mr.Mehta would submit that this petition is of the year 2009.Almost 13 years have passed by till this date. However, it is very shockingDto know that none of the petitioners have any idea about the investigationwhich has already been carried out by the police with respect to each ofthe FIRs.

36. Mr.Mehta invited the attention of this Court to one order passedby Coordinate Bench dated 15[th] February 2010. The same reads thus:

The Chief Secretary, in terms of our directions, has filed hisReport, which shall form part of the record and to be put in asealed cover.

On 8.2.2010, after hearing the parties, we have issued thefollowing directions :

“Learned senior counsel appearing on behalf of thepetitioners submits that after the adjournment of this WritPetition on 5th February, 2010 Petitioner Nos. 2 to 13 wereillegally taken into custody or caused their disappearanceby the respondent-police. Learned counsel appearing forthe State of Chhatisgarh seriously disputes the correctnessof the assertion made by the learned senior counsel aboutthe police being responsible for causing the disappearanceof Petitioner Nos. 2 to 13.

We at this stage do not propose to express any opinionwhatsoever on this issue relating to the allegeddisappearance of the Petitioner Nos. 2 to 13.

Be that as it may, we would like to examine the PetitionerNos. 2 to 13 and hear their version as to what transpiredin the matter after we have heard and adjourned thehearing of this petition on 5th February, 2010 or priorthereto.

The interest of justice requires the production of PetitionerNos. 2 to 13 in this Court. We, accordingly, directRespondent No.1 to produce the Petitioner Nos. 2 to 13 inthis Court on 15th February, 2010 for the purpose offurther hearing of this petition.

The Chief Secretary, State of Chhatisgarh is directed toensure the compliance of this Order and submit his ownreport on or before 15th February, 2010.”

Pursuant to our directions the first respondent produced sixout of 13 petitioners, namely, Shri Soyam Rama, ShriKunjamHidma, Shri MadaviHidma, Shri SoyamDulla, Smt.MuchkiSukri and Smt. Sodhi Sambo (Petitioner Nos. 2, 3, 4,7, 8 and 13 respectively). We are informed that the sixpetitioners who are produced before us today speak only‘Gondi language’ and no other language. In thecircumstances, it would not be possible for us even to elicitany information from them and interact with them.

We are of the view that their security is paramountconsideration.

It is equally important that they should be allowed to expressthemselves freely without being influenced by any outsideagencies or individuals.

In the circumstances, we consider it appropriate to requestMr. G.P. Mittal, District Judge-I, Tis Hazari, Delhi to recordtheir statements in the presence of the interpreter, namely,Mohan Sinha, as well as the first petitioner Mr. HimanshuKumar, who is stated to be conversant with their language.The District Judge shall first satisfy to himself that the

Apetitioners, who are required to be examined by him are notunder any pressure or threat from any quarter whatsoever.We also request the District Judge to ensure their safety asalong as they are in Delhi, for which purpose the Union ofIndia shall comply with such directions as may be issued bythe District Judge from time to time. The learned AttorneyBGeneral for India has stated before us that in terms of thedirections to be issued by the District Judge, the Union ofIndia shall ensure their safety and protection.

We also permit the learned counsel for the petitioner ShriColin Gonsalves or any other lawyer to be nominated by himCto be present in the proceedings before the District Judgealong with counsel for the Union of India and the counselfor the State of Chhatisgarh.

We make it very clear that the District Judge shall proceed torecord the statement only after being satisfied to himself thatDthe persons produced before him are free from any pressureand are capable of making statement freely without beinginfluenced by any of the outside agency/parties. The learnedDistrict Judge is requested to arrange for videography ofthe entire proceedings.

The Registrar Judicial will immediately convey this order tothe District Judge. Copy of this order shall also be given tothe counsel for all the parties. List this matter tomorrow at 1-15 p.m. in Court for further directions.”

37. According to Mr.Mehta, in context with the aforesaid order,Fvarious statements of the petitioners came to be recorded by the DistrictJudge-I and Sessions Judge, Delhi. The plain reading of such statementsof the petitioners would indicate that they have no idea as to what hasbeen stated in the memorandum of the writ petition and for what reasonsthe writ petition came to be filed. The statements recorded by the JudicialGOfficer in accordance with the directions issued by Coordinate Benchof this Court vide the order referred to above, destroys the entire caseput up by the writ petitioner no.1.

38. Mr.Mehta urged before this Court to take strict view of thematter. Mr.Mehta also pointed out that the Union of India has filed anInterlocutory Application No.52290 of 2022 seeking appropriate actionH

against the petitioners. We shall look into and deal with the InterlocutoryApplication little later.

39. In such circumstances referred to above, Mr.Mehta praysthat this writ petition may be rejected with exemplary costs andappropriate action may be taken against the writ petitioners.

SUBMISSIONS ON BEHALF OF THE STATE OFCHHATTISGARH:

40. Mr. Sumeer Sodhi, the learned counsel appearing for the Stateof Chhattisgarh, has also vehemently opposed this writ petition. In awritten note provided to us, Mr.Sodhi has highlighted in what manner theChhattisgarh Police carried out the investigation of both the incidentsand also the details as regards the registration of the FIRs. The samereads thus :

“Crime No.: 04/2009

Police Station: BhejjiDate of Registration: 18/09/2009Sections: 147, 148, 149, 307 IPC; 25, 27 Arms Act.Date of Incident: 17.09.2009.

Complainant: Shri Ravindra Singh, Assistant Commdt. 201Cobra Bn.

Accused: Unknown Maoist Cadres and Sangam Members

Allegations: On information about the presencc of Naxalcadres, an anti-naxal operation was launched on 16.09.2009from PS Bhejji towards Gachchanpalli, Aitrajpad andEntapad by the Security forces. Naxals made life threateningattack on security forces near Gachchanpalli and run awayputting their shelter on fire.

Gist of Final Report : Even after long search no accusedwere found and on no possibility of finding in near future,closure report was filed before the Hon’ble court on20.10.2010.

Present Status: According to the closure report presented bythe investigating officer, even after long search no accusedwere found and on no possibility of finding in near future

closure report is accepted on 26.10.2010 by the learned chiefJudicial Magistrate.

Crime No.: 10/2009:Police Station: ChintagufaDate of Registration: 20/09/2009

Sections: 395, 397, 147, 148, 149, 302 IPC; 25, 27 ArmsAct; 3,4 Explosive. Subs. Act.

Date of Incident: 17.09.2009 and 18.09.2009.

Complainant: Shri PremprakashAwadhiya, Sub Inspector, PS.-Sukma

Accused: Unknown Uniformed female and male naxalitesabout 200-300.

Allegations: On 16/09/2009, the police party left forSinganmadgu for Anti Naxal operation from police stationChintagufa. On the morning of 17/09/2009, when the partyreached the dense forests of Singanmadgu, the camp ofNaxalites were seen and exchange of fire took place. Afterencounter in search of the place of incident weapons and abody of naxal was recovered. Then after while one km ahead200-300 unknown Naxalites again cordoned the police partyand attacked the Security forces, in which - AssistantCommandant Shriram Manoranjan, Assistant CommandantShri Rakesh Kumar Chaurasiya, Sub Inspector Shri SushilKumar Varma, Head-Constable Lalit Kumar, ConstableManoharlal Chandra and Constable Uday Kumar Yaday ofCobra Company were martyred and four others ConstableSatpal, Constable Harish Thakur, Constable Kamalvoshe andConstable Mohammad Husain Quraishi were also injured.

Gist of Final Report: According to the investigating officer,even after long search no accused were found and sincethere was no possibility of finding in near future, closure reporthas been filed before the Hon’ble Trial court on 20.10.2010.

Present Status: According to the closure report presented bythe investigating officer, even after long search no accusedwere found and on no possibility of finding in near future

closure report is accepted on 26.10.2010 by the learned ChiefJudicial Magistrate.

Crime No.: 06/2010

Police Station: Bhejji

Date of Registration: 21/02/2010

Sections: 147, 148, 149, 302 IPC; 25, 27 Arms Act.

Date of Incident: Approximately three-four months ago at 7.00am in the morning from the date of incident, (therefore,probable incident here is 01.10.2009)

Complainant: Shri MaadviHadma Address: Gachhanpalli(Petitioner No. 4)

Accused: 20-25 Unknown uniformed person holding gun andbanda.

Absconding accused-

1-Venktesh s/o Unknown

2-Rajesh alias Joga s/o Unknown

3-Vijay alias Vijay alias Ekanna

4-Savitri Bhai w/o Unknown

5-Manila w/o Unknown

6-Bhima s/o Unknown

7-Jayram s/o Unknown

8-Samita w/o Chandrana

9-Bhaskar alias Rajesh s/o Venkteshwerlu

10-Kavita D/o jayram

Allegations: On 21/02/2010 upon report of applicantGMadviHadma, resident of Gachchanpalli, FIR No.06/2010 u/s 147, 148, 149, 302 IPC & 25, 27 Arms Act was registered atPolice Station Bhejji against unknown naxalites for murderof Madvi Hidma, MadviJoga, Kawasi Ganga, Madkami Chula& Dudhi Muye.

Gist of Final Report: Chargesheet filed on 09/09/2010 against10 named absconding accused u/sec.147, 148, 149, 302 IPC;25, 27 Arms Act.

Present Status: Permanent warrant has been issued againstthe absconding accused by the Hon’ble Judicial MagistrateFirst Class Konta.

INCIDENT 2: 01.10.2009 (Gompad)

6. In respect of the incident dated 01.10.2010 that took placeat Gompad, the State of Chhattisgarh has already registeredfollowing FIRs against the offences committed on that day.The details of the FIRs are:

Crime No.: 05/2009

Police Station: BhejjiDate of Registration: 25/11/2009

Sections: 147, 148, 149, 307 IPC; 25, 27 Arms Act.Date of Incident: 01.10.2009.

Complainant: Shri MatramBariha, Head Constable, PS.-Bhejji

Accused: Unknown Uniformed Naxalites in large numbers.

Allegations: On the information of increased activities andcamps of armed naxalites in Gompad village PS Bhejji, threeteams of Cobra 201 Bn departed on an anti naxal operationon 30/09/2009 from injram. On 01.10.2009 this combinedparty was ambushed by Naxalites in Gompad.

Gist of Final Report: According to the investigating officer,even after long search no accused were found and on nopossibility of finding in near future closure report is filedbefore the Hon’ble court on 20.10.2010

Present Status : According to the closure report presented bythe investigating officer, even after long search no accusedwere found and on no possibility of finding in near futureclosure report is accepted on 26.10.2010 by the learned ChiefJudicial Magistrate.

Crime No.: 01/2010Police Station: BhejjiDate of Registration : 08/01/2010Sections : 396, 397 IPC, 25, 27 Arms Act.

Date of Incident : Approximately week before Deewali.

Complainant : Shri Soyam Rama (Petitioner No.2)

Accused : Unknown Armed uniformed person 20-25

Absconding accused-

1-Venktesh s/o Unknown

2-Rajesh alias Joga s/o Unknown

3-Vijay alias Vijay alias Ekanna

4-Savitri Bhai w/o Unknown

5-Manila w/o Unknown

6-Bhima s/o Unknown

7-Jayram s/o Unknown

8-Samita w/o Chandrana

9-Bhaskar alias Rajesh s/o Venkteshwerlu

10-Kavita D/o Jayram

Allegations: On 08/01/2010 upon information of applicantSoyam Rama s/o SoyamKanna resident Gompad village, aFIR-01/2010 u/s 396, 397 IPC, 25, 27 Arms Act was registeredin PS Bhejji and taken into investigation against unknownnaxalites causing murder of 7 deceased named - Madvi Bazar,MadviSubbi, MadviMutti, KattamKanni, Madvi Enka,SoyamSubba and Soyam Jogi.

Gist of Final Report: Chargesheet filed on 09/09/2010 against10 named absconding accused u/s 396, 397 IPC; 25, 27 ArmsAct.

Present Status: Permanent warrant has been issued againstthe absconding accused by the Hon’ble Judicial MagistrateFirst Class Konta.

ACrime No.: 07 2010

Police Station: Bhejji

Date of Registration: 22/02/2010

Sections: 147, 148, 149, 302 IPC, 25, 27 Arms Act.

Date of Incident: approximately five months ago in themorning from the date of incident, (therefore, probableincident here is 01.10.2009)

Complainant: Shri. KomramLachcha, Address-ChintagufaAccused: 20-25 Unknown uniformed person holding gun andbanda.

Absconding accused-

1-Venktesh s/o Unknown

2-Rajesh alias Joga s/o Unknown

3-Vijay alias Vijay alias Ekanna

4-Savitri Bhai w/o Unknown

5-Manila w/o Unknown

6-Bhima s/o Unknown

7-Jayram s/o Unknown

8-Samita w/o Chandrana

9-Bhaskar alias Rajesh s/o Venkteshwerlu

10-Kavita D/o Jayram

FAllegations: On 22/02/2010 upon report of applicantKomramLachcha, resident of Chintagufa, FIR No.07/2010 u/s 147, 148, 149, 302 IPC & 25, 27 Arms Act was registered atPS - Bhejji against unknown naxalites for murder of KomramMutta.

Gist of Final Report: Chargesheet filed on 09/09/2010 against10 named absconding accused u/sec.147, 148, 149, 302 IPC& 25, 27 Arms Act.

Present Status: Permanent warrant has been issued againstthe absconding accused by the Hon’ble Judicial MagistrateFirst Class Konta.”

41. Mr.Sodhi also highlighted the following contradictions andanomalies in the case of the petitioners :

“1. Hot oil theory retracted:

Petitioner claimed in the Writ Petition at Page of theSynopsis and Page 9 of the Petition Paper book that oneMuchki Deva (60yrs) of Ondhepara was grazing cattle onthe morning of 17[th] September. He was caught, beaten anddragged into the village by security forces. He was hangedupside down from tree and pot of oil was lit below and hewas dropped into it. As result, the upper part of his bodywas severely burnt and he had developed maggots in hiswounds.

However, thereafter the Petitioners filed an Application beforethis Hon’ble Court dated 02.02.2010 bearing Crl.M.P. No.3173/2010 seeking directions from this Hon’ble Court. In thesaid Application, the Petitioners retracted the Hot Oil Theoryin Paragraph 18 of the Application stating that it was amistake that took place during translations. It was nowclaimed that Muchki was burnt by electrocution by attachingwires to his head.

It is important to note that the present Writ Petition was filedon around 27.10.2009, notice by this Court was issued on23.11.2009 on the basis of the contents of the Writ Petition,and the Interlocutory Application bearing Cri. MP No.3173.2010 was moved on 02.02.2010. Therefore, it is pertinentto note that Petitioners have changed their stand multiple timesin respect of serious allegations levelled against the defenceforces of the country and the Chhattisgarh Police Department.

2. Contradictions in complaint vis-a-vis Sec. 164 Statementsabout killings -

Petitioner No. 5 in the complaint filed alongwith the presentWrit Petition at Page 35 of the Paperbook has alleged thathis son was killed on 17.09.2009 by SPOs. It is pertinent tonote that the State of Chhattisgarh in its affidavit dated30.08.2010 has stated in paragraph 8 that in Statement ofPetitioner No. 5 recorded under Section 164 of the CriminalProcedure Code, 1973 on 11.03.2010, he has stated that hisson was killed three years ago.

A3. False narrative sought to be created in Petitioner’s Writtensubmissions -

plain reading of Paragraph 13 of the Written Submissionsfiled by the Petitioner creates brutal impression of the securityforces to the effect that Petitioner No.13’s two year oldBgrandchild was killed after chopping off the child’s fingers.The purported cyclostyle complaint of Petitioner No. 13 is atPage 53 whereas her statement recorded under orders of thisCourt can be found at Page 171 of the Paperbook. perusalof both these documents reveals that no such case was evermade out by Sodhi Sambo i.e. Petitioner No. 13.C

4. Non-corroboration of contents of Writ Petition withstatements made by the Petitioners before District Judgeappointed by this Court —

Looking at the seriousness of the allegations contained inDthe Writ Petition, which were vehemently denied by the State,this Court directed that statements of Petitioner Nos. 2-13 berecorded by District Judge at New Delhi. bare perusal ofthe statements made by the Petitioners reveal that none of thePetitioners corroborate the allegations made in the writpetition. Further the petitioners do not even say that theirErelatives were killed by uniformed persons. -

Ref can be made to the Statements - Page 154 onwards

5. No Affidavit of authorisation of Petitioners No. 2 to 13

It is pertinent to note that the present petition has been filedFby the Petitioner No. 1 (Himanshu Kumar) on behalf ofPetitioner No. 2 to 13. However, there is no affidavit on recordwhereby Petitioners No. 2 to 13 have authorised PetitionerNo. 1.”

42. In such circumstances referred to above, Mr.Sodhi prays thatGthere being no merit in the present writpetition, the same may be rejectedwith exemplary costs and appropriate actions against each of the writpetitioners for misleading the Court and fabricating false evidence.

ANALYSIS:

43. Having heard the learned counsel appearing for the partiesHand having gone through the materials on record, the only question that

falls for our consideration is, whether any case has been made out bythe writ petitioners for the investigation of the two incidents through theCBI.

POSITION OF LAW:

44. It is now settled law that if citizen, who is de factocomplainant in criminal case alleging commission of cognizable offenceaffecting violation of his legal or fundamental rights against highGovernment officials or influential persons, prays before Court for adirection of investigation of the said alleged offence by the CBI, suchprayer should not be granted on mere asking. Constitution Bench ofthis Court, in the case of the State of West Bengal and others v.Committee for Protection of Democratic Rights, West Bengal, reportedin (2010) 3 SCC 571, has made the following observations pointing outthe situations where the prayer for investigation by the CBI should beallowed :

“70.… In so far as the question of issuing direction to CBIto conduct investigation in case is concerned, although noinflexible guidelines can be laid down to decide whether ornot such powers should be exercised, but time and again ithas been reiterated that such an order is not to be passed asa matter of routine or merely because party has levelledsome allegations against the local police. This extraordinarypower must be exercised sparingly, cautiously and inexceptional situations where it becomes necessary to providecredibility and instil confidence in investigations or where theincident may have national and international ramificationsor where such an order may be necessary for doing completejustice and enforcing the fundamental rights. Otherwise CBIwould be flooded with large number of cases and with limitedresources, may find it difficult to properly investigate evenserious cases and in the process lose its credibility andpurpose with unsatisfactory investigations.”

(emphasis supplied)

45. In the above decision, it was also pointed out that the samecourt in Secretary, Minor Irrigation & Rural Engineering Services,U.P. v. Sahngoo Ram Arya & Anr., (2002) 5 SCC 521, had said that anorder directing an enquiry by the CBI should be passed only when the

DEF

AHigh Court, after considering the material on record, comes to theconclusion that such material does disclose prima facie case callingfor an investigation by the CBI or any other similar agency.

46. In an appropriate case when the Court feels that theinvestigation by the police authorities is not in proper direction, and inBorder to do complete justice in the case and if high police officials areinvolved in the alleged crime, the Court may be justified in suchcircumstances to handover the investigation to an independent agencylike the CBI. By now it is well-settled that even after the filing of thecharge sheet the court is empowered in an appropriate case to handoverthe investigation to an independent agency like the CBI.C

47. The extraordinary power of the Constitutional Courts underArticles 32 and 226 respectively of the Constitution of India qua theissuance of directions to the CBI to conduct investigation must beexercised with great caution as underlined by this Court in the case ofCommittee for Protection of Democratic Rights, West Bengal (supra)Das adverted to herein above, observing that although no inflexibleguidelines can be laid down in this regard, yet it was highlighted thatsuch an order cannot be passed as matter of routine or merely becausethe parties have levelled some allegations against the local police andcan be invoked in exceptional situations where it becomes necessary toEprovide credibility and instill confidence in the investigation or where theincident may have national or international ramifications or where suchan order may be necessary for doing complete justice and for enforcingthe fundamental rights. We are conscious of the fact that though asatisfaction of want of proper, fair, impartial and effective investigationeroding its credence and reliability is the precondition for direction forFfurther investigation or re-investigation, submission of the charge sheetipso facto or the pendency of the trial can, by no means, be prohibitiveimpediment. The contextual facts and the attendant circumstances haveto be singularly evaluated and analyzed to decide the needfulness offurther investigation or re-investigation to unravel the truth and mete outGjustice to the parties. The prime concern and the endeavour of the courtof law should be to secure justice on the basis of true facts which oughtto be unearthed through committed, resolved and competentinvestigating agency.

48. The above principle has been reiterated in K.V. Rajendran v.HSuperintendent of Police, CBCID South Zone, Chennai, (2013) 12

SCC 480. Dr. B.S. Chauhan, J. speaking for three-Judge Bench ofthis Court held:

“13.…This Court has time and again dealt with the issueunder what circumstances the investigation can be transferredfrom the State investigating agency to any other independentinvestigating agency like CBI. It has been held that the power oftransferring such investigation must be in rare and exceptionalcases where the court finds it necessary in order to do justicebetween the parties and to instil confidence in the public mind, orwhere investigation by the State police lacks credibility and it isnecessary for having “a fair, honest and complete investigation”,and particularly, when it is imperative to retain public confidencein the impartial working of the State agencies. …”

49. Elaborating on this principle, this Court further observed:

“17. … the Court could exercise its constitutional powers fortransferring an investigation from the State investigating agencyto any other independent investigating agency like CBI only inrare and exceptional cases. Such as where high officials of Stateauthorities are involved, or the accusation itself is against the topofficials of the investigating agency thereby allowing them toinfluence the investigation, and further that it is so necessary todo justice and to instil confidence in the investigation or where theinvestigation is prima facie found to be tainted/biased.”

50. The Court reiterated that an investigation may be transferredto the CBI only in “rare and exceptional cases”. One factor that courtsmay consider is that such transfer is “imperative” to retain “publicconfidence in the impartial working of the State agencies.” Thisobservation must be read with the observations made by the ConstitutionBench in the case of Committee for Protection of Democratic Rights,West Bengal (supra), that mere allegations against the police do notconstitute sufficient basis to transfer the investigation.

51. In Romila Thapar v. Union of India, (2018) 10 SCC 753,one of us, A.M.Khanwilkar, J., speaking for three-Judge Bench of thisCourt (Dr. D.Y.Chandrachud, J. dissenting) noted the dictum in line ofprecedents laying down the principle that the accused ”does not have asay in the matter of appointment of investigating agency”. In reiteratingthis principle, this Court relied upon its earlier decisions in Narmada

ABai v. State of Gujarat, (2011) 5 SCC 79, Sanjiv Rajendra Bhatt v.Union of India, (2016) 1 SCC 1, E. Sivakumar v. Union of India,(2018) 7 SCC 365, and Divine Retreat Centre v. State of Kerala, 2008)3 SCC 542. This Court observed:

“30…the consistent view of this Court is that the accused cannotBask for changing the investigating agency or to do investigation ina particular manner including for court- monitored investigation.”

52. It has been held by this Court in CBI & another v. RajeshGandhi and another, 1997 Cr.L.J 63, that no one can insist that anoffence be investigated by particular agency. We fully agree with theCview in the aforesaid decision. An aggrieved person can only claim thatthe offence he alleges be investigated properly, but he has no right toclaim that it be investigated by any particular agency of his choice.

53. The principle of law that emerges from the precedents of thisCourt is that the power to transfer an investigation must be usedD“sparingly” and only “in exceptional circumstances”. In assessing theplea urged by the petitioner that the investigation must be transferred tothe CBI, we are guided by the parameters laid down by this Court forthe exercise of that extraordinary power.

54. Bearing in mind the position of law as discussed above, weEnow proceed to consider, whether in the facts of the present case, moreparticularly, from the materials on record, it has been prima facieestablished that it is fit case for allowing the prayers of the writpetitioners for investigation by the CBI.

55. We are really taken by surprise that the learned senior counselFappearing for the writ petitioners is absolutely oblivious of the fact thatall the FIRs were investigated by the concerned investigating agenciesand, at the end of the investigation, charge sheets came to be filed indifferent courts of the State of Chhattisgarh for the offences under theIPC like murder, dacoity, etc.

56. We are of the view, having regard to the materials on record,Gthat no case, worth the name for further investigation or re-investigation,could also be said to have been made out.

57. The filing of the charge sheets at the conclusion of theinvestigation into the various FIRs referred to above would indicate thatthe alleged massacre was at the end of the Naxalites (Maoists). TheH

materials collected in the form of the charge sheets substantiate thecase put up by the respondents that the villagers were attacked andkilled by the Naxalites. There is not an iota of material figuring in theinvestigation on the basis of which even finger can be pointed towardsthe members of the police force.

58. If we go by the tenor of the writ petition, it gives an impressionthat proper investigation is not being done and, therefore, the same shouldbe handed over to the CBI. However, the fact is that the investigationhas already been carried out and charge sheets have been filed.Unfortunately, neither the learned senior counsel appearing for the writpetitioners nor any of the writ petitioners, more particularly, the writpetitioner no.1, the protagonist behind the filing of the present writ petition,running an NGO, has any idea about the charge sheets and the materialscollected in the course of the investigation. If the investigation has alreadybeen carried out and charge sheets have been filed and if the court hasto now consider the plea of the writ petitioners, then the same wouldbecome case of further investigation.

59. We shall highlight as to why we are saying so as above. Wecome back to the order passed by Coordinate Bench of this Courtdated 15[th] February 2010. Pursuant to the same, the statements of thepetitioners were recorded by the District and Sessions Judge, Delhi. Wemay quote one such statement recorded by the District and SessionsJudge of the petitioner no.2, namely, Soyam Rama. We quote the entirestatement as under :

“Present:

Petitioner No.1 Himansu Kumar alongwith Counsel Shri ColinGonslaves. Sr. Advocate alongwith Shri Divya Jyoti, Advocate.Shri Atul Jha Advocate alongwith Shri D.K. Sinha Advocate,Counsel for State of Chattisgarh.

Shri P.K. Dey, Advocate on behalf of UOI alongwith ShriJitender, Advocate.

Shri R.K. Tanwar, Addl. PP for Govt. of NCT of Delhialongwith Shri Navin Kumar, Asstt.Public Prosecutor

At 3:49 p.m., order dated 15.2.2010 passed by the Hon’bleSupreme Court in Writ Petition (Cr.) 103/09 titled as HimanshuKumar &Ors vs. State of Chattishgarh, was received in myoffice titled as Himanshu Kr. & Ors.

Before that, I had received telephonic call from Mr.T.Sivadasan, Registrar (Judicial), informing me about theorder passed by the Hon’ble Supreme Court.

At about 5 pm., the file of the writ petition was received.Thereafter corrigendum of this order, wherein, name ofBpetitioner No.8 was mentioned at page 2 of the order wasalso received. At about 6 pm the petitioners had reached mycourt No.301. The counsel for the parties aforementioned werealso present. I have talked to the Counsels for the parties aswell as petitioner No.1 in the court and have explained that Ishall be talking to each of the petitioners. Except theCpetitioners, all the persons including the counsel wererequested to move out of the court room. I got down from thedias and talked to the petitioners through petitioner No.1Himanshu Kumar. I tried to make petitioners comfortable andserved them with tea and biscuits. I have enquired from themDif there was any fear or pressure from any quarter which theyhave negatived. I have told the petitioners present that I wouldbe calling them one by one for the purpose of recording theirstatements in the adjoining Room No.302 in Tis Hazari Court.

In the first instance, petitioner No.2 Shri Soyam Rama hasbeen called. Apart from the abovenamed Counsel for theparties, petitioner No.1 Shri Himanshu Kumar and interpreterShri Mohan Sinha have also been called in room No.302.Petitioner No.2 has been made to sit in the middle of thepetitioner No.1 and Shri Mohan Sinha, the interpreters.

FLet statement of Sh. Soyam Rama be recorded.

Question: What is your name ?

Ans. : My name is Soyam RamaQuestion: Where do you stay?

Ans. I am resident of village Gompad.

Q. Do you have any proof of identity:

Ans. I do not have one.

Q. Do you know for what purpose you have been broughthere ?

A. The persons from our family have died and therefore, Ihave come.

Q. Has anybody put any pressure upon you to make anyparticular statement ? Has anybody terrorized you?

Ans. Nobody has pressurized or terrorized me.

Q. Do you want to make statement of your own free will ?

A. Yes.

(I am satisfied that Shri Soyam Rama is not under any pressurecoercion or terror to make the statement.)

I feel that the statement being made by him is out of his freewill.

Let the statement be recorded on oath. The oath be alsoadministered to both the interpreters.

Statement of Shri Soyam Rama s/o Shri SoyamKanna, aged38 years r/o village Gopade, on S.A. (through interpreter ShriMohan Sinha, in presence of petitioner Himanshu Kumar.Both the interpreters have also stated on oath that whatevershall be asked from the witness and his answers shall beinterpreted correctly & truly).

On. 1.10.2009, there was firing in the house of my paternaluncle MadhviBajaar. In the firing, my paternal uncleMadviBajaar and paternal aunt Smt. MadviSudviSubi andniece MadviMuddi and Smt. KartanKatti were killed. Onemore person, whose name I cannot tell, was also killed in thefiring. We had run away from the spot and therefore, couldnot see as to who had opened fire.

Question: Are you sure that this firing had taken place on1.10.2009 or before that ?

Ans. I am sure, the firing had taken place on 01.10.2009.

Some other persons were also killed, but not in my presence.

Question: Can you say, if any other weapon was used in theabove mentioned killing or it was only by bullets ?

Ans. In the first instance, the above named four persons werestabbed with knife and thereafter, they were shot with bullets.

AQuestion: Can you tell the description of the firearm if thesame was big gun or pistol ?Ans. I cannot tell the same. I heard the shot and then ranaway.

Question: Who had caused the said injury and who hadBopened the fire ?Ans. The persons who stabbed the above stated persons andopened fire, had come from the Jungle. I ran away after theabove stated persons were stabbed and fire was opened.Question: Would you be in position to identify the assailants.CAns. I would not be in position to identify them.Question: Do you want to say anything else.Ans. I do not want to say anything further.

60. All other statements of the rest of the writ petitioners are onthe same line and footing.

61. When we called upon Mr.Gonsalves to make us understandas to why his clients had to make such statements before the JudicialOfficer, very curious reply came from Mr.Gonsalves. According toMr.Gonsalves, the entire mode and manner in which the statements wererecorded by the Judicial Officer of the rank of District and SessionsJudge was absolutely incorrect. According to the learned senior counsel,specific questions ought to have been put by the Judicial Officer to eachof the writ petitioners while recording their statements in accordancewith the directions issued by this Court vide order dated 15[th] February2010 referred to above.62. We are afraid, we are not in position to accept such submissionafter period of almost 12 years. The statements we are referring torecorded by the Judicial Officer are of the year 2010. Not once in thelast 12 years any grievance has been made either orally or in writingbefore this Court as regards the mode and manner of recording of thestatements. It is for the first time in 12 years that such grievance hasbeen made. Had the writ petitioners raised such plea at the appropriatetime and contemporaneously as regards the mode and manner of therecording of the statements, this Court would have passed necessaryorders asking the Judicial Officer to record the further statements in aparticular manner. It is too late in the day now to cast any insinuations oraspersions against the Judicial Officer of the rank of District and SessionsJudge, who had acted under the directions of this Court.

63. What we are trying to convey is that the statements of thepetitioners nos.2 to 13 recorded before the Judicial Officer demolishesthe entire case put up by the petitioner no.1, who is running an NGO.

64. It appears from the materials on record that all those personswho have been arraigned as accused and against whom charge sheetshave been filed are absconding. It is now for the concerned trial court totake appropriate steps in this regard. If the persons named as accused inthe charge sheets are absconding, then it is expected of the investigatingagency to take necessary steps for their arrest. In any view of the matter,it is now for the trial court to do the needful in accordance with law.

65. In the overall view of the matter, we have reached to theconclusion that no case, worth the name, has been made out by the writ

Apetitioners for any further investigation much less through an independentagency to be appointed by this Court. In the facts of the above case, weare of the view that the conditions laid down by this Court in the case ofCommittee for Protection of Democratic Rights, West Bengal (supra)quoted earlier are not fulfilled.

B66. The writ petition accordingly fails and is hereby rejected withexemplary costs of Rs. 5,00,000/- (Rupees Five Lakh Only). The requisiteamount towards the costs shall be paid by the petitioner no.1 viz. HimanshuKumar. The petitioner no.1 shall deposit the amount with the SupremeCourt Legal Services Authority within period of 4 weeks from today;failing which, it shall be open for the authority concerned to takeCappropriate steps in accordance with law for the recovery of the requisiteamount. Pending application, if any, stands disposed of.

INTERLOCUTORY APPLICATION NO. 52290 OF 2022

67. This is an application at the instance of the Union of IndiaDwith the following prayers :

“(a) Hold the petitioners guilty of leveling false charges ofoffence and of giving false and fabricated evidence beforethis Hon’ble Court with an intention to procure convictionfor capital offence or for life imprisonment against theEpersonnel of security forces and to screen off the actualoffenders of Left Wing (Naxal) terrorism;

(b) Pass an order directing CBI/NIA or any other centralinvestigating agency or any other monitoring committee, asthis Hon’ble Court deems fit and proper, to register an FIRFand conduct an in-depth investigation to identify theindividuals/organizations, who have been conspiring, abettingand facilitating filing of petitions premised on false andfabricated evidence before this Hon’ble Court as well as beforethe Hon’ble High Courts with motive to either deter thesecurity agencies to act against the Left Wing (Naxal) militiaGby imputing false charges on them or to screen off the LeftWing (Naxal) militia from being brought to justice by creatinga false narrative of victimization before the Hon’ble Courts;

(c) And direct appropriate action against the Petitioners andother person/s responsible for the aforesaid acts of perjury;

(d) Pass any other just and reasonable orders to meet theends of justice.”

68. We have closely looked into the averments made in theInterlocutory Application.

69. Mr.Tushar Mehta, the learned Solicitor General has pressedthis application very hard.

70. Although no particular nomenclature has been given to thisapplication, yet it is apparent that the same is under Section 340 of theCode of Criminal Procedure,1973 (for short, “the CrPC”) read withSection 195 of the CrPC. The Union of India wants this Court to initiateappropriate proceedings against the writ petitioners for the offence ofperjury punishable under Section 193 of the IPC. The Union of Indiavehemently asserts that the writ petitioners are guilty of levelling falsecharges of various offences and could be said to have fabricated evidencebefore this Court in judicial proceedings. The Union of India assertsthat the writ petitioner no.1 has affirmed the false averments made inthe writ petition on oath. He could be said to have made false affidavit.The making of false affidavit and giving false evidence comes within thepurview of Section 191 of the IPC.

71. Before we proceed to examine this application filed by theUnion of India, we must look into few averments made therein :

“4. Shockingly, in the petition, the petitioner had portrayedthe incidents of 17.9.2009 and 1.10.2009, as an act of notrestricted to extra judicial killings, but had sought to portraysuch acts as act of barbarianism committed by security forces,where the. special operation teams of police and paramilitaryforces were alleged to have indulged into torturing, lootingand outraging the modesty of family members of thoseencountered. The Petitioners had, thus, on affidavit, narratedincidents alleging it to be gruesome killings and massacresof innocent tribal villagers on 17.9.2009 and 1.10.2009, inthe petition.

It is pertinent to mention here that the acts of torture andkillings of the villagers have been pleaded to be of suchbeastly and horrific nature, so as to invoke and instigate aninstantaneous response of outrage by this Hon’ble Court,undeniably leading to grant of relief/interim relief as prayed

in the petition. In pith and substance, the reliefs prayed wereof the nature where operations of security forces were soughtto be halted and Left Wing Extremists were sought to begranted legal protection under the narrative of victimization.

8. It is respectfully submitted that bare perusal of therecordings etc. submitted by the Ld. District Judge before thisHon’ble Court reveals that all the averments made by thepetitioner in the petition were ex-facie false and fabricatedand it is now clear that all the said deceitful averments weremade by the petitioner with malicious and audacious attemptto mislead this Hon’ble court and to obtain orders from thiscourt by playing fraud on its conscience and magnanimity.

9. In the respectful submission of the applicant, it is apparentthat the said insolent false averments were made with malafideobjective to change the narrative of the incident and withmalicious designs i.e. to portray the dreaded Left WingExtremists (Naxals), who were waging an armed rebellionagainst the security forces of the country and threatening thesovereignty and integrity of the country, as innocent tribalvictims being massacred by the security forces.

10. This was done with deceitful design to instigate anEinstantaneous response of outrage by this Hon’ble Court andmislead it to pass adverse orders against security forces underan erroneous assumption of facts causing an adverse anddeterrent effect on the operations and morale of the securityforces. It is submitted that the modus adopted in the instantFcase, has over the period of time, become norm where falsepetitions are filed by individuals and organization who areeither supporters of Left Wing Extremism or benefit, financiallyand politically, from Left Wing Extremist activities andprotective orders are obtained from the courts by playingfraud. Further absence of stern action being taken againstGthem for playing fraud on the court has embolden them whohave now made practice of filing such false and vexatiouspetitions based on self-serving/self-generated fact findingreports.

11. Aposteriori, it has become clear that this false narrativeof massacre of innocent tribals by security forces was created

to somehow achieve immediate cessation of advancement ofthe security forces against the cornered armed Left WingExtremists. The said object was sought to be achieved, andwas in fact achieved by the petitioner, by misleading thisHon’ble Court and by seeking adverse orders against securityforces by portraying false facts/ picture before the court andby playing fraud on this Hon’ble Court.

12. In addition to the same thepurpose and motive of thepresent petition was also to derail the ongoing efforts ofsecurity forces in neutralizing the Left Wing Extremismmovement and the armed Left Wing Extremists; to take awaythe dignity and credibility of security forces and the attemptsmade by them to neutralize the armed rebellion by Left WingExtremists; to lower the moral of the security agenciesbyportraying them as demons and national villains, i.e. slayersof innocent tribal people; and to foist false cases on them sothat in future the said false cases acts as deterrent andchilling factor for the rest of the members of the armed forcesin planning or participating in similar operations. It issubmitted that all this was done before the highest court ofthe country and at the altar of the national security. This wasa fraud played on the constitutional remedies and an abusethereof of the highest order.

13. In effect in the respectful submission of the applicant/UOI, it is now also apparent that the present ex-facie falseand fraudulent petition was filed to deceit this Hon’ble courtand to provide legal protective shield to the members ofLeft Wing Extremist outfits. In the respectful submission of theapplicant the present petition is nothing but subterfuge anda part of the conspiracy to cover the offence committed bythe Left Wing Extremists and to facilitate unhindered futureoperations by weakening the security forces which is the onlychallenge deterring their intentions and operations. Thepetitioners, in the respectful submission of the applicant, bypreferring the instant deceitful petition, have not onlyconspired and abetted the commissioning of the crime but havealso conspired and abetted in covering up the crime andscreening the offenders/perpetrators of Left Wing (Naxal)terrorism.

14. It is submitted that scurrilous allegations made againstthe security personnel of the country have nevertheless hasbrought about chilling effect of demoralizing the esprit decorps and self-esteem of the members of the forces,whichhas been since then acted against national interests.

15. In this perspective, when it is manifested that the presentpetition was nothing but fraud on this Hon’ble court, whereorders were sought to be obtained from this Hon’ble courtthrough deceitful designs/fabricated and false assertions, ithas become incumbent and imperative, both in the interest ofjustice, as well as, in the interest of security of the nation thatthe people and organizations involved in playing fraud onconstitutional remedies and on whose instance false affidavits,pleadings and evidence have been submitted before thisHon’ble Court are identified and appropriate criminal actionis initiated against them. This is necessary to serve as adeterrent against repeating such modus.

22. It is submitted that in the process, the security personalhave been made scapegoats to bear the brunt of falseaccusations.It is an admitted fact that rarely does anyindividual security personal comes forward to contest suchallegations, since their service protocol deters them from doingso. Unwittingly and unfairly, they become easy targets of suchaccusations leading to resigned acceptance of suchblemishes as an incident of duty. Such an environment for thefunctioning of security apparatus in any country is extremelyundesirable and in fact dangerous for the security of the nationand its people. The trust reposed by the society in the policeand other security personal is coveted and necessary for thesmooth functioning of any administration. The lawenforcement machinery is not and cannot appear to beblemished. Moreover, it is also fact that wherever any suchmachinery is found to be indulging in illegal or irregularactivities, this Hon’ble Court and other courts have beenprompt and undeterred in taking action against such personal.However, there is an expedient and urgent need to guardagainst irresponsible, unjustified and by far, brazen falseaccusations against the security personal.”

POSITION OF LAW:

“Indian Penal Code

Section 191. Giving false evidence.—Whoever, being legallybound by an oath or by an express provision of law to statethe truth, or being bound by law to make declaration uponany subject, makes any statement which is false, and whichhe either knows or believes to be false or does not believe tobe true, is said to give false evidence.

Section 192. Fabricating false evidence.—Whoever causesany circumstance to exist or makes any false entry in anybook or record, or electronic record or makes any documentcontaining false statement, intending that such circumstance,false entry or false statement may appear in evidence in ajudicial proceeding, or in proceeding taken by law beforea public servant as such, or before an arbitrator, and thatsuch circumstance, false entry or false statement, so appearingin evidence, may cause any person who in such proceedingis to form an opinion upon the evidence, to entertain anerroneous opinion touching any point material to the resultof such proceeding, is said to “to fabricate false evidence”.

Section 193. Punishment for false evidence. - Whoeverintentionally gives false evidence in any stage of judicialproceeding, or fabricates false evidence for the purpose ofbeing used in any stage of judicial proceeding, shall bepunished with imprisonment of either description for termwhich may extend to seven years, and shall also be liable tofine, and whoever intentionally gives or fabricates falseevidence in any other case, shall be punished withimprisonment of either description for term which mayextend to three years, and shall also be liable to fine.”

Code of Criminal Procedure, 1973

Section 195. Prosecution for contempt of lawful authority ofpublic servants, for offences against public justice and foroffences relating to documents given in evidence.—(1) NoCourt shall take cognizance-

A(a) ... .... .... …

(b) (i) of any offence punishable under any of the followingsections of the Indian Penal Code (45 of 1860), namely,sections 193 to 196 (both inclusive), 199, 200, 205 to 211(both inclusive) and 228, when such offence is alleged toBhave been committed in, or in relation to, any proceeding inany court, or

(ii) of any offence described in section 463, or punishableunder section 471, section 475 or section 476, of the saidCode, when such offence is alleged to have been committedin respect of document produced or given in evidence in aproceeding in any court, or

(iii) of any criminal conspiracy to commit, or attempt to commit,or the abetment of, any offence specified in sub-clause (i) orsub-clause (ii),

except on the complaint in writing of that Court, or by suchofficer of the Court as that Court may authorize in writing inthis behalf, or of some other Court to which that Court issubordinate.

Section 340. Procedure in cases mentioned in section 195. —(1) When upon an application made to it in this behalf orotherwise, any Court is of opinion that it is expedient in theinterest of justice that an inquiry should be made into anyoffence referred to in clause (b) of sub-section (1) of sectionF195, which appears to have been committed in or in relationto proceeding in that Court or, as the case may be, in respectof document produced or given in evidence in proceedingin that Court, such Court may, after such preliminary inquiry,if any, as it thinks necessary,-

(a) record finding to that effect;

(b) make complaint thereof in writing;

(c) send it to Magistrate of the first class having jurisdiction;

(d) take sufficient security for the appearance for the accusedbefore such Magistrate, or if the alleged offence is non-

bailable and the Court thinks it necessary so to do, send theaccused in custody to such Magistrate; and

(e) bind over any person to appear and given evidence beforesuch Magistrate;

(2) The power conferred on Court by sub-section (1) inrespect of an offence may, in any case where that Court hasneither made complaint under sub-section (1) in respect ofthat offence nor rejected an application for the making ofsuch complaint, be exercised by the Court to which such formerCourt is subordinate within the meaning of sub-section (4) ofSection 195.

(3) complaint made under this section shall be signed, -

(a) where the Court making the complaint is High Court, bysuch officer of the Court as the court may appoint;

(b) in any other case, by the presiding officer of the court orby such officer of the Court as the Court may authorise inwriting in this behalf.

(4) In this section, “Court” has the same meaning as in section195.”

72. Thus, from the above, it follows that there are two conditions,on fulfillment of which, complaint can be filed against person whohas given false affidavit or evidence in proceeding before court.The first condition being that person has given false affidavit in aproceeding before the court and, secondly, in the opinion of the court it isexpedient in the interest of justice to make an inquiry against such aperson in relation to the offence committed by him.

73. In K. Karunakaran v. T.V. Eachara Warrier and another,reported in AIR 1978 SC 290, this Court held in paragraphs 19, 20 and21 as under :

“19. Chapter XXVI of the Code of Criminal Procedure 1973makes provisions as to offences affecting the administrationof justice. Sec. 340, Cr.P.C, with which the chapter opens isthe equivalent of the old Section 476 of the Criminal Procedure

ACode, 1898. The chapter has undergone one significantchange with regard to the provision of appeal which was thereunder the old section 476-B, Cr.P.C. Under Section 476-B,Cr.P.C. (old) there was right of appeal from the order of asubordinate court to the superior court to which appealsordinarily lay from an appealable decree or sentence of suchBformer court. Under Section 476-B (old) there would haveordinarily been right of appeal against the order of theHigh Court to this Court. There is, however, distinct departurefrom that position under Section 341, Cr.P.C. (new) with regardto an appeal against the order of High Court under SectionC340 to this Court. An order of the High Court made undersub-section (1) or sub-section (2) of Section 340 is specificallyexcluded for the purpose of appeal to the superior courtunder Section 341 (1), Cr.P.C (new). This is, therefore, newrestriction in the way of the appellant when he approachesthis Court under Article 136 of the Constitution.

20. Whether, suo motu, or on an application by party underSection 340 (1), Cr.P.C., court having been already seizedof matter may be tentatively of opinion that further actionagainst some party or witness may be necessary in the interestEof justice. In proceeding underSection 340 (1), Cr.P.C, thereasons recorded in the principal case, in which falsestatement has been made, have great bearing and indeedaction is taken having regard to the overall opinion formedby the court in the earlier proceedings.

21. At an enquiry held by the court underSection 340 (1),Cr.P.C, irrespective of the result of the main case, the onlyquestion is whether prima facie case is made out which, ifunrebutted, may have reasonable likelihood to establishthe specified offence and whether it is also expedient in theinterest of justice to take such action.”

74. In Baban Singh and another v. Jagdish Singh and others,reported in AIR 1967 SC 68, this Court observed the following inparagraph 7 as under :

“7. The matter has to be considered from three stand points.HDoes the swearing of the false affidavits amount to an offence

under S.199, Indian Penal Code or under either Ss.191 or192, Indian Penal Code? If it comes under the two lattersections, the present prosecution cannot be sustained, Section199 deals with declaration and does not state that thedeclaration must be on oath. The only condition necessary isthat the declaration must be capable of being used as evidenceand which any Court of justice or any public servant or otherperson, is bound or authorized by law to receive as evidence.Section 191 deals with evidence on oath and S.192 withfabricating false evidence. If we consider this matter fromthe standpoint of S.191, Indian Penal Code the offence isconstituted by swearing falsely when one is bound by oath tostate the truth because an affidavit is declaration madeunder an oath. The definition of the offence of giving falseevidence thus applies to the affidavits. The offence may alsofall within S.192. It lays down inter alia that person is saidto fabricate false evidence if he makes document containinga false statement intending that such false statement mayappear in evidence in judicial proceeding and so appearingin evidence may cause any person who, in such proceedingis to form an opinion upon the evidence, to entertain anerroneous opinion touching any point material to the resultof such proceeding. When Baban Singh and DharichhanKuermade declarations in their affidavits which were tendered inthe High Court to be taken into consideration, they intendedthe statements to appear in evidence in judicial proceeding,and so appearing, to cause the Court to entertain anerroneous opinion regarding the compromise. In this way theiroffence came within the words of Ss. 191/192 rather thanS.199 of the Indian Penal Code. They were thus prima facieguilty of an offence of giving false evidence or of fabricatingfalse evidence for the purpose of being used in judicialproceeding.”

75. The law under Section 340 of the CrPC on initiatingproceedings has been laid down in several of our judgments. Thus inChajoo Ram v. Radhey Shyam, (1971) 1 SCC 774, this Court, in para7, stated as under :

A“7. … No doubt giving of false evidence and filing falseaffidavits is an evil which must be effectively curbed with astrong hand but to start prosecution for perjury too readilyand too frequently without due care and caution and oninconclusive and doubtful material defeats its very purpose.Prosecution should be ordered when it is considered expedientBin the interests of justice to punish the delinquent and notmerely because there is some inaccuracy in the statement whichmay be innocent or immaterial. There must be prima faciecase of deliberate falsehood on matter of substance andthe court should be satisfied that there is reasonableCfoundation for the charge.”

76. Similarly in Chandrapal Singh and Others v. Maharaj Singhand Another, (1982) 1 SCC 466, this Court, in para 14, stated as under:

“14. That leaves for our consideration the alleged offenceDunder Section 199. Section 199 provides punishment formaking false statement in declaration which is by lawreceivable in evidence. We will assume that the affidavits filedin proceeding for allotment of premises before the RentControl Officer are receivable as evidence. It is complainedthat certain averments in these affidavits are false though noEspecific averment is singled out for this purpose in thecomplaint. When it is alleged that false statement has beenmade in declaration which is receivable as evidence in anyCourt of Justice or before any public servant or other person,the statement alleged to be false has to be set out and itsFalleged falsity with reference to the truth found in somedocument has to be referred to pointing out that the twosituations cannot co-exist, both being attributable to the sameperson and, therefore, one to his knowledge must be false.Rival contentions set out in affidavits accepted or rejected bycourts with reference to onus probandi do not furnishGfoundation for charge under Section 199, I.P.C. To illustratethe point, appellant-1Chandrapal Singh alleged that he wasin possession of one room forming part of premises No. 385/2. The learned Additional District Judge after scrutinisingall rival affidavits did not accept this contention. It therebyHdoes not become false. The only inference is that the statement

made by Chandrapal Singh did not inspire confidence lookingto other relevant evidence in the case. Acceptance or rejectionof evidence by itself is not sufficient yardstick to dub theone rejected as false. Falsity can be alleged when truth standsout glaringly and to the knowledge of the person who ismaking the false statement. Day in and day out, in courtsaverments made by one set of witnesses are accepted and thecounter averments are rejected. If in all such cases complaintsunder Section 199, I.P.C. are to be filed not only there willopen up floodgates of litigation but it would unquestionablybe an abuse of the process of the Court. The learned Counselfor the respondents told us that tendency to perjure is verymuch on the increase and unless by firm action courts do notput their foot down heavily upon such persons the wholejudicial process would come to ridicule. We see some force inthe submission but it is equally true that chagrined andfrustrated litigants should not be permitted to give vent totheir frustration by cheaply invoking jurisdiction of thecriminal court. Complainant herein is an Advocate. He lost inboth courts in the rent control proceedings and has now rushedto the criminal court. This itself speaks volumes. Add to thisthe fact that another suit between the parties was pendingfrom 1975. The conclusion is inescapable that invoking thejurisdiction of the criminal court in this background is anabuse of the process of law and the High Court rather glossedover this important fact while declining to exercise its powerunder Section 482, Cr. P.C.”

77. Both the aforesaid judgments were referred to and relied uponwith approval in R.S. Sujatha v. State of Karnataka and Others, (2011)5 SCC 689. This Court, after setting down the law laid down in thesetwo judgments concluded:

“18. Thus, from the above, it is evident that the inquiry/contempt proceedings should be initiated by the court inexceptional circumstances where the court is of the opinionthat perjury has been committed by party deliberately tohave some beneficial order from the court. There must begrounds of nature higher than mere surmise or suspicionfor initiating such proceedings. There must be distinct evidence

Aof the commission of an offence by such person as meresuspicion cannot bring home the charge of perjury. More so,the court has also to determine as on facts, whether it isexpedient in the interest of justice to inquire into the offencewhich appears to have been committed.”

B78. It is clear through from reading of the aforesaid judgmentsthat there should be something deliberate - statement should be madedeliberately and consciously which is found to be false as result ofcomparing it with unimpeachable evidence, documentary or otherwise.

79. It is true that an affidavit is ‘evidence’ within the meaning ofCSection 191 of the IPC and person swearing to false affidavit isguilty of perjury. But the matter does not rest here. Before initiating theproceedings for perjury, the court concerned has to consider whether itwould be expedient in the interest of justice to sanction such prosecution.What the courts have to see at this stage is whether there is evidence inDsupport of the allegations made by the Union of India (respondent herein)to justify the initiation of proceedings against the writ petitioners, moreparticularly, the writ petitioner no.1 herein who had filed the affidavit onbehalf of himself and the other writ petitioners and not whether theevidence is sufficient to warrant his conviction. However, this does notmean that the court should not prima facie be of the opinion that thereEare sufficient and reasonable grounds for setting the machinery of criminallaw in motion against the accused. As noted above, the Court has furtherto see that the false statement was deliberate and conscious and theconviction is reasonably probable or likely. In other words, beforesanctioning the prosecution there must be prima facie case of aFfalsehood on matter of substance and the court should be satisfied thatthere is reasonable foundation for the charge. (see S.P.Kohli v. HighCourt of Punjab & Haryana, AIR 1978 SC 1753)

80. This Court, in the case of Muthu Karuppan, Commissionerof Police, Chennai v. ParithiIlamvazhuthi and another, reported inG(2011) 5 SCC 496, has held as under :

“15. Giving false evidence by filing false affidavit is an evilwhich must be effectively curbed with strong hand.Prosecution should be ordered when it is considered expedientin the interest of justice to punish the delinquent, but there

must be prima facie case of “deliberate falsehood” on amatter of substance and the court should be satisfied thatthere is reasonable foundation for the charge.

16. In series of decisions, this Court held that the enquiry/contempt proceedings should be initiated by the court inexceptional circumstances where the court is of the opinionthat perjury has been committed by party deliberately tohave some beneficial order from the court. There must begrounds of nature higher than mere surmise or suspicionfor initiating such proceedings. There must be distinct evidenceof the commission of an offence by such person as meresuspicion cannot bring home the charge of making falsestatement, more so, the court has to determine as on factswhether it is expedient in the interest of justice to enquire intooffence which appears to have been committed.”81. Section 340 of the CrPC came up for the consideration beforea three-Judge Bench of this Court in the case of Pritish v. State ofMaharashtra, (2002) 1 SCC 253. In Pritish (supra), this Court wascalled upon to consider, whether it is mandatory on the part of the courtto make preliminary inquiry under Section 340 of the CrPC beforefiling complaint under Section 195 of the CrPC and further, whetherthe court is required to afford an opportunity of hearing to the personagainst whom complaint is filed before Magistrate for initiatingprosecution proceedings. This Court took the view that an opportunity tothe wouldbe accused before the filing of the complaint was not mandatory,and observed that the preliminary inquiry was itself not mandatory. TheCourt observed thus :

“9. Reading of the sub-section makes it clear that the hub ofthis provision is formation of an opinion by the court (beforewhich proceedings were to be held) that it is expedient in theinterest of justice that an inquiry should be made into anoffence which appears to have been committed. In order toform such opinion the court is empowered to hold apreliminary inquiry. It is not peremptory that such preliminaryinquiry should be held. Even without such preliminary inquirythe court can form such an opinion when it appears to thecourt that an offence has been committed in relation to

ABC

proceeding in that court. It is important to notice that evenwhen the court forms such an opinion it is not mandatorythat the court should make complaint. This subsection hasconferred power on the court to do so. It does not meanthat the court should, as matter of course, make complaint.But once the court decides to do so, then the court shouldmake finding to the effect that on the fact situation it isexpedient in the interest of justice that the offence shouldfurther be probed into. If the court finds it necessary toconduct preliminary inquiry to reach such finding it isalways open to the court to do so, though absence of anysuch preliminary inquiry would not vitiate finding reachedby the court regarding its opinion. It should again beremembered that the preliminary inquiry contemplated in thesub-section is not for finding whether any particular personis guilty or not. Far from that, the purpose of preliminaryinquiry, even if the court opts to conduct it, is only to decidewhether it is expedient in the interest of justice to inquire intothe offence which appears to have been committed.

10. “Inquiry” is defined in Section 2(g) of the Code as “everyinquiry, other than trial, conducted under this Code by aMagistrate or court”. It refers to the pre-trial inquiry, and inthe present context it means the inquiry to be conducted bythe Magistrate. Once the court which forms an opinion,whether it is after conducting the preliminary inquiry or not,that it is expedient in the interest of justice that an inquiryshould be made into any offence the said court has to make acomplaint in writing to the Magistrate ofthe First Classconcerned. As the offences involved are all falling within thepurview of “warrant case” [as defined in Section 2(x)] ofthe Code the Magistrate concerned has to follow the procedureprescribed in Chapter XIX of the Code. In this context wemay point out that Section 343 of the Code specifies that theMagistrate to whom the complaint is made under Section 340shall proceed to deal with the case as if it were instituted on apolice report. That being the position, the Magistrate onreceiving the complaint shall proceed under Section 238 toSection 243 of the Code.11. Section 238 of the Code says that the Magistrate shall atthe outset satisfy himself that copies of all the relevantdocuments have been supplied to the accused. Section 239enjoins on the Magistrate to consider the complaint and thedocuments sent with it. He may also make such examinationof the accused, as he thinks necessary. Then the Magistratehas to hear both the prosecution and the accused to considerwhether the allegations against the accused are groundless.If he finds the allegations to be groundless he has to dischargethe accused at that stage by recording his reasons thereof.Section 240 of the Code says that if the Magistrate is ofopinion, in the aforesaid inquiry, that there is ground forpresuming that the accused has committed the offence he hasto frame charge in writing against the accused. Such chargeshall then be read and explained to the accused and he shallbe asked whether he pleads guilty of the offence charged ornot. If he pleads not guilty then the Magistrate has to proceedto conduct the trial. Until then the inquiry continues beforethe Magistrate.

12. Thus, the person against whom the complaint is made hasa legal right to be heard whether he should be tried for theoffence or not, but such legal right is envisaged only whenthe Magistrate calls the accused to appear before him. Theperson concerned has then the right to participate in the pre-trial inquiry envisaged in Section 239 of the Code. It is opento him to satisfy the Magistrate that the allegations againsthim are groundless and that he is entitled to be discharged.

13. The scheme delineated above would clearly show thatthere is no statutory requirement to afford an opportunity ofhearing to the persons against whom that court might file acomplaint before the Magistrate for initiating prosecutionproceedings. Learned counsel for the appellant contendedthat even if there is no specific statutory provision for affordingsuch an opportunity during the preliminary inquiry stage, thefact that an appeal is provided in Section 341 of the Code, toany person aggrieved by the order, is indicative of his rightto participate in such preliminary inquiry.

ABC

14. Section 341 of the Code confers power on the party onwhose application the court has decided or not decided tomake complaint, as well as the party against whom it isdecided to make such complaint, to file an appeal to the courtto which the former court is subordinate. But the mere factthat such an appeal is provided, it is not premise forconcluding that the court is under legal obligation to affordan opportunity (to the persons against whom the complaintwould be made) to be heard prior to making the complaint.There are other provisions in the Code for reachingconclusions whether person should be arrayed as accusedin criminal proceedings or not, but in most of thoseproceedings there is no legal obligation cast on the court orthe authorities concerned, to afford an opportunity of hearingto the would-be accused. In any event the appellant hasalready availed of the opportunity of the provisions of Section341 of the Code by filing the appeal before the High Courtas stated earlier.

18. We are unable to agree with the said view of the learnedSingle Judge as the same was taken under the impressionthat decision to order inquiry into the offence itself wouldprima facie amount to holding him, if not guilty, very near toa finding of his guilt. We have pointed out earlier that thepurpose of conducting preliminary inquiry is not for thatpurpose at all. The would-be accused is not necessary forthe court to decide the question of expediency in the interestof justice that an inquiry should be held. We have come acrossdecisions of some other High Courts which held the view thatthe persons against whom proceedings were instituted haveno such right to participate in the preliminary inquiry (videM.Muthuswamy v. Special Police Establishment [1985 Cri LJ420 (Mad)]).”

(emphasis supplied)

82. In M.S. Sheriff and Another v. State of Madras and Others,AIR 1954 SC 397, Constitution Bench of this Court said that noHexpression on the guilt or innocence of persons should be made by court

while passing an order under Section 340 of CrPC. An exercise at thatstage is not for finding whether any offence was committed or whocommitted the same. The scope is confined to see whether the courtcould then decide on the materials available that the matter requiresinquiry by criminal court and that it is expedient in the interest of justiceto have it inquired into. This decision of the Constitution Bench has alsobeen followed in Pritish (supra) observing that the court, when decidesto make complaint under Section 340, is not to record finding of guilt orinnocence of person against whom complaint is to be made before aMagistrate.

83. We may also refer and reply upon the decision of this Court inthe case of Aarish Asgar Qureshi v. Fareed Ahmed Qureshi andanother, reported in (2019) 18 SCC 172, wherein this Court discussedand explained the necessary requirements for the purpose of initiation ofproceeding under Section 340 read with Section 195(1)(b) of the CrPC.This Court laid much emphasis on two words namely “deliberate” and“intentional”. This Court talked about the requirement of impeachableevidence for the purpose of initiation of proceedings. In other words,this Court took the view that statement should be made deliberatelyand consciously and the same should be found to be false as result ofcomparing it with unimpeachable evidence, documentary or otherwise.We quote the relevant observations made by this Court:-

“10. It is clear therefore from reading of these judgments thatthere should be something deliberate - statement should be madedeliberately and consciously which is found to be false as resultof comparing it with unimpeachable evidence, documentary orotherwise. In the facts of the present case, it is clear that thestatement made in the anticipatory bail application cannot be testedagainst unimpeachable evidence as evidence has not yet beenled. Moreover, the report dated 12.11.2011 being report, whichis in the nature of preliminary investigation report by theinvestigating officer filed only two days after the F.I.R. is lodged,can in no circumstances be regarded as unimpeachable evidencecontrary to the statements that have been made in the anticipatorybail application. …”

(emphasis supplied)

A84. However, in the subsequent decision in the case of SharadPawar v. Jagmohan Dalmiya, (2010) 15 SCC 290, while dealing witha similar question as above, three-Judge Bench of this Court went onto observe as follows :

“7. Having heard the learned Senior Counsel for both sidesBand after perusal of the record, we are of the considered viewthat before giving direction to file complaint againstDefendants 1 to 6, it was necessary for the learned SingleJudge to conduct preliminary enquiry as contemplated underSection 340 CrPC and also to afford an opportunity of beingCheard to the defendants, which was admittedly not done.

8. We, therefore, in the interest of justice, allow these appeals,set aside the impugned order of the High Court passed in theapplication filed by Respondent 1-plaintiff under Section 340CrPC and remit the matter to the learned Single Judge to decideDthe application under Section 340 CrPC afresh in accordancewith law, and after affording reasonable opportunity of beingheard to the defendants, against whom the learned SingleJudge ordered enquiry.”

85. Later, the judgment in Pritish (supra) came to be relied uponEby two Judges Bench of this Court in Amarsang Nathaji (supra).While dealing with the propriety of the procedure adopted by the courtmaking complaint under Section 340 of the CrPC, the Bench inAmarsang Nathaji observed as follows:

“7. In the process of formation of opinion by the court that itFis expedient in the interests of justice that an inquiry shouldbe made into, the requirement should only be to have primafacie satisfaction of the offence which appears to have beencommitted. It is open to the court to hold preliminary inquirythough it is not mandatory. In case, the court is otherwise inGa position to form such an opinion, that it appears to thecourt that an offence as referred to under Section 340 CrPChas been committed, the court may dispense with thepreliminary inquiry. Even after forming an opinion as to theoffence which appears to have been committed also, it is notmandatory that complaint should be filed as matter ofH

course. (See Pritish v. State of Maharashtra [Pritish v. Stateof Maharashtra, (2002) 1 SCC 253)

86. The conflict between the two decisions of this Court of equalstrength, i.e. Pritish (supra) and Sharad Pawar (supra), was takennotice of by this Court in the case of the State of Punjab v. JasbirSingh, (2020) 12 SCC 96. Bench of two Judges of this Court ultimatelythought fit to refer the question to Larger Bench. The Court observedas under :

“14. In any event, given that the decision of the three-JudgeBench in Sharad Pawar (supra) did not assign any reason asto why it was departing from the opinion expressed by aCoordinate Bench in Pritish (supra) regarding the necessityof preliminary inquiry under Section 340 of the CrPC, asalso the observations made by Constitution Bench of thisCourt in Iqbal Singh Marwah (supra), we find it necessarythat the present matter be placed before larger Bench forits consideration, particularly to answer the followingquestions:

14.1(i) Whether Section 340 of the Code of CriminalProcedure, 1973 mandates preliminary inquiry and anopportunity of hearing to the would-be accused before acomplaint is made under Section 195 of the Code by aCourt ?

14.2(ii) What is the scope and ambit of such preliminaryinquiry ?”

87. It appears that the reference on the aforesaid two questionsto larger Bench is still pending.

88. However, we do not intend to dwell upon any further in theaforesaid context i.e. whether it would be expedient in the interests ofjustice to proceed against the writ petitioners for perjury. We are sayingso as we do not want to precipitate this issue any further. We have saidin so many words that this is very serious matter as it relates directly tothe security of the nation.

89. In the aforesaid context, we have something else in mind. Wepropose to look into Section 211 of the IPC. Section 211 of the IPC isextracted hereunder:-

A“Section 211. False charge of offence made with intenttoinjure.—Whoever, with intent to cause injury to any person,institutes or causes to be instituted any criminal proceedingagainst that person, or falsely charges any person with havingcommitted an offence, knowing that there is no just or lawfulground for such proceeding or charge against that person,Bshall be punished with imprisonment of either description fora term which may extend to two years, or with fine, or withboth; and if such criminal proceeding be instituted on falsecharge of an offence punishable with death, [imprisonmentfor life], or imprisonment for seven years or upwards, shallCbe punishable with imprisonment of either description for aterm which may extend to seven years, and shall also be liableto fine.”90. The essential ingredients for invoking Section 211, I.P.C. arethat the complaint must have falsely charged person with havingDcommitted an offence. The complainant, at the time of giving the complaintmust have known that there is no just or lawful ground for making acharge against the person. This complaint must have been given with anintention to cause injury to person.

91. The CrPC does not define what constitutes the making of aE“charge” of an offence or what amounts to the “institution of criminalproceedings”. But, in our opinion, false “charge” in this Section mustnot be understood in any restricted or technical sense, but in its ordinarymeaning, of false accusation made to any authority bound by law toinvestigate it or to take any steps in regard to it, such as giving informationFof it to the superior authorities with view to investigation or otherproceedings, and the institution of criminal proceedings includes the settingof the criminal law in motion. The nature of both expressions, and thedifference between them has been explained in lucid terms in the decisionof the Full Bench of the Calcutta High Court in the case of Karim Bukshv. Queen Emp, 17 C. 574. It points out that there may be chargeGwhich does not amount to the institution of criminal proceedings “andthere may be criminal proceedings which do not necessarily involve acharge” of any offence. As an illustration of the former it points out thata charge made to the Judge of Civil Court or to public officers of otherkinds, in order to obtain sanction to prosecute may well be charge “butHis not the institution of criminal proceedings”. It further points out that an

aggrieved person may seek to put the criminal law in motion either bymaking charge or in the language of the Code giving information to thePolice (Section 154 CrPC) “or he may” lay charge, or as the Code callsit, complaint (Section 190 CrPC) before Magistrate”.

92. We are referring to Section 211 of the IPC as above keepingin mind the fact that the first information reports lodged by the writpetitioners at the different police stations were investigated and at theend of the investigation, the investigating agency reached to the conclusionthat the police force had no role to play, rather Naxals were responsiblefor the massacre. Prima facie, it could be said that false informationwas given by the first informants to the police as regards the allegedmassacre by the police force.

93. The essential to be satiated in order to attract the offenceunder Section 211 of the IPC was elucidated by this Court in in SantokhSingh & Ors. v. Izhar Hussan & Anr., (1973) 2 SCC 406. The relevantparagraph is extracted hereinunder:

“10. … This section as its marginal note indicates renderspunishable false charge of offence with intent to injure. Theessential ingredient of an offence under Section 211 IPC is toinstitute or cause to be instituted any criminal proceeding againsta person with intent to cause him injury or with similar intent tofalsely charge any person with having committed an offence,knowing that there is no just or lawful ground for such proceedingor charge.Instituting or causing to institute false criminalproceedings assume false charge but false charge may bepreferred even when no criminal proceedings result. It is franklyconceded by Shri Kohli that the appellant cannot be said to haveinstituted any criminal proceeding against any person. So that partof Section 211 IPC is eliminated. Now, the expression “falselycharges” in this section, in our opinion, cannot mean giving falseevidence as prosecution witness against an accused person duringthe course of criminal trial. To “falsely charge” must refer tothe original or initial accusation putting or seeking to put in motionthe machinery of criminal investigation and not when speaking toprove the false charge by making deposition in support of thecharge framed in that trial. The words “falsely charges” have tobe read along with the expression “institution of criminal

Aproceeding”. Both these expressions, being susceptible ofanalogous meaning should be understood to have been used intheir cognate sense. They get as it were their colour and contentfrom each other. They seem to have been used in technicalsense as commonly understood in our criminal law. The falsecharge must, therefore, be made initially to person in authorityBor to someone who is in position to get the offender punished byappropriate proceedings. In other words, it must be embodied eitherin complaint or in report of cognizable offence to the policeofficer or an officer having authority over the person against whomthe allegations are made. The statement in order to constitute theC“charge” should be made with the intention and object of settingcriminal law in motion. …”.

94. Thus, as explained by this Court in Santokh Singh v. IzharHussain (supra), the essential ingredient of an offence under Section211 IPC is to institute or cause, to be instituted any criminal proceedingDagainst person with intent to cause him injury or with similar intent tofalsely charge any person with having committed an offence, knowingthat there is no just or lawful ground for such proceeding or charge.Instituting or causing to institute false criminal proceedings assume falsecharge but false charge may be preferred even when no criminalEproceedings result. Now, the expression “falsely charges” in this section,in our opinion, cannot mean giving false evidence as prosecution witnessagainst an accused person during the course of criminal trial. “Tofalsely charge” must refer to the original or initial accusation putting orseeking to put in motion the machinery of criminal investigation and notwhen seeking to prove the false charge by making deposition in supportFof the charge framed in that trial. The words “falsely charges” have tobe, read along with the expression “institution of criminal proceeding”.Both these expressions, being susceptible of analogous meaning shouldbe understood to have been used in their cognate sense. They get as itwere their colour and content from each other. They seem to have beenGused in technical sense as commonly understood in our criminal law.The false charge must, therefore, be made initially to person in authorityor to someone who is in position to get the offender punished byappropriate proceedings. In other words, it must be’ embodied either ina complaint or in report of cognizable offence to the police officer orto an officer having authority over the person against whom the allegationsH

are made. The statement in order to constitute the “charges” should bemade with the intention and object of setting criminal law in motion.

95. Thus, we leave it to the State of Chhattisgarh/CBI (CentralBureau of Investigation) to take appropriate steps in accordance withlaw as discussed above in reference to the assertions made in the interimapplication.We clarify that it shall not be limited only to the offence underSection 211 of the IPC. case of criminal conspiracy or any otheroffence under the IPC may also surface.We may not be understood ofhaving expressed any final opinion on such action/proceedings. We leaveit to the better discretion of the State of Chhattisgarh/CBI to actaccordingly keeping in mind the seriousness of the entire issue. Thus,the relief prayed for in terms of Para 67(b) hereinabove,of the subjectinterlocutory application is hereby granted.

96. We have not remained oblivious of Section 195 CrPC whilediscussing the aforesaid. We make it clear that having regard to thefacts of the present case the bar of Section 195 CrPC would not apply ifultimately the State of Chhattisgarh/CBI decides to take appropriateaction in accordance with law as discussed above. The issue is no longerres integra in view of the decision of this Court in M.L. Sethi v. R.P.Kapur, reported in AIR 1967 SC 528, wherein this Court observed asunder:

“10. In the interpretation of this clause (b) of sub-section (1) ofSection 195, considerable emphasis has been laid before us onthe expression “in, or in relation to”, and it has been urged that theuse of the expression “in relation to” very considerably widensthe scope of this section and makes it applicable to cases wherethere can even in future be proceeding in any court in relation towhich the offence under Section 211 IPC, may be alleged to havebeen committed. proper interpretation of this provision requiresthat each ingredient in it be separately examined. This provisionbars taking of cognizance if all the following circumstances existviz. (1) that the offence in respect of which the case is broughtfalls under Section 211 IPC; (2) that there should be proceedingin any court; and (3) that the allegation should be that the offenceunder Section 211 was committed in, or in relation to, such aproceeding. Unless all the three ingredients exist, the bar underSection 195(1)(b) against taking cognizance by the Magistrate,

except on complaint in writing of court, will not come intooperation. In the present case also, therefore, we have to seewhether all these three ingredients were in existence at the timewhen the Judicial Magistrate at Chandigarh proceeded to takecognizance of the charge under Section 211 IPC against theappellant.

11. There is, of course, no doubt that in the complaint before theMagistrate charge under Section 211 IPC, against the appellantwas included, so that the first ingredient clearly existed. Thequestion on which the decision in the present cases hinges iswhether it can be held that any proceeding in any court existedwhen that Magistrate took cognizance. If any proceeding in anycourt existed and the offence under Section 211 IPC, in thecomplaint filed before him was alleged to have been committed insuch proceeding, or in relation to any such proceeding, theMagistrate would have been barred from taking cognizance ofthe offence. On the other hand, if there was no proceeding in anycourt at all in which, or in relation to which, the offence underSection 211 could have been alleged to have been committed, thisprovision barring cognizance would not be attracted at all. 12. Inthis case, as we have already indicated when enumerating thefacts, the complaint of which cognizance was taken by the JudicialMagistrate at Chandigarh was filed on April 11, 1959 and at thatstage, the only proceeding that was going on was investigation bythe police on the basis of the First Information Report lodged bythe appellant before the Inspector-General of Police on December10, 1958. There is no mention at all that there was, at that stage,any proceeding in any court in respect of that FIR When examiningthe question whether there is any proceeding in any court, thereare three situations that can be envisaged. One is that there maybe no proceeding in any court at all. The second is that proceedingin court may actually be pending at the point of time whencognizance is sought to be taken of the offence under Section 211IPC. The third is that, though there may be no proceeding pendingin any court in which, or in relation, to which the offence underSection 211 IPC could have been committed, there may havebeen proceeding which had already concluded and the offenceunder Section 211 may be alleged to have been committed in, orin relation to, that proceeding. It seems to us that in both the lattertwo circumstances envisaged above, the bar to taking cognizanceunder Section 195(1)(b) would come into operation. If there be aproceeding actually pending in any court and the offence underSection 211 IPC is alleged to have been committed in relation tothat proceeding, Section 195(1)(b) would clearly apply. Even ifthere be case where there was, at one stage, proceeding inany Court which may have concluded by the time the question ofapplying the provisions of Section 195(1)(b) arises, the bar underthat provision would apply if it is alleged that the offence underSection 211 IPC, was committed in relation to that proceeding.The fact that the proceeding had concluded would be immaterialbecause Section 195(1)(b) does not require that the proceeding inany court must actually be pending at the time applying this bararises.”

97. With the aforesaid, we dispose of this InterlocutoryApplication.

Bibhuti Bhushan Bose

Writ petition dismissed andInterlocutory application disposed of.

(Assisted by : Shashwat Jain, LCRA)