IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
Transcript of IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
[Under Order XXII Rule 2(1) of S.C. Rules 2013]
(Under Article 136 of the Constitution of India)
SPECIAL LEAVE PETITION (CRL.) NO. OF 2017 (WITH PRAYER FOR INTERIM RELIEF)
(Against the impugned final judgment and order dated 21.02.2017 passed by the Hon’ble High Court of Judicature at Jabalpur at Jabalpur in Criminal Writ Petition No. 18964 of 2016)
IN THE MATTER OF: Mehmooda Mohammed Salim Mucchhale …….Petitioner
Versus Union of India & Ors. ….…Respondents
WITH
PAPER BOOK
(FOR INDEX PLEASE SEE INSIDE)
ADVOCATE FOR THE PETITIONER : Mr. FARRUKH RASHEED
Bar & Bench (www.barandbench.com)
I N D E X S.NO PARTICULARS PAGES 1. Office Report on Limitation A
2. Listing Proforma A1-A2
3. Synopsis and List of dates B –M
4. True copy of the impugned final judgment and order dated 21.02.2017 passed by the Hon’ble High Court of Judicature at Jabalpur at Jabalpur in Criminal Writ Petition No. 18964 of 2016.
1 – 6
5. Special Leave Petition with affidavit.
6. APPENDIX Section
7. ANNEXURE P-1
8. ANNEXURE P-2
9. ANNEXURE P-3
10. ANNEXURE P-4
11. Crl. M.P. No………..2017 An Application for permission to file special leave petition.
12. Crl. M.P. No………..2017 An Application for exemption from filing official translation.
13. Crl. M.P. No………..2017 An Application for exemption from filing certified copy of impugned order.
14. Letter
Bar & Bench (www.barandbench.com)
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CRL.) NO. OF 2017
IN THE MATTER OF: Mehmooda Mohammed Salim Mucchhale …….Petitioner
Versus Union of India & Ors. ….…Respondents
OFFICE REPORT ON LIMITATION
1. The SLP is filed within time. 2. The SLP is barred by time and there is delay of ……..days in filing
the Criminal Appeal against the impugned judgment and final Order
dated 21.02.2017 passed by the Hon’ble High Court of Judicature at
Jabalpur at Jabalpur in Criminal Writ Petition No. 18964 of 2016 and
Petition for Condonation of ……days delay has been filed.
3. There is a delay of ……..days in re-filing the SLP and Petition for
Condonation of ……..days delay in re-filing has been filed.
SECTION OFFICER
Dated: .06.2017
Bar & Bench (www.barandbench.com)
SYNOPSIS
This petition is directed against the judgment and final order dated
21.02.2017 passed by the Hon’ble High Court of Judicature at
Jabalpur in Criminal Writ Petition No.18964 of 2016. Whereby the
Hon’ble High Court has dismissed the writ petition holding; that in
view of the orders passed in various petitions at the instance of
public spirited person and also at the instance of relative of the
deceased and taking into consideration the relief sought vide
present petition is similar to that sought in Writ Petition No.
18305/2016, W.P. No. 20370/16 and W.P. No. 19280/16 this court
declined to grant relief as sought for by the petitioner, the petition is
disposed of in the terms of the order passed in Writ Petition
No.18305/2016, W.P. No. 20370/16 and W.P. No. 19280/16.
It is respectfully submitted that the writ petition was filed
before the Hon’ble High Court seeking the following reliefs:
(i) To direct the respondents to register FIR against the persons
responsible for alleged encounter;
(ii) To direct the respondents to investigate under its own supervision
by forming S.I.T. and or by C.B.I.
(iii) To issue order or direction to investigate the alleged killing of
Head Constable by encountered accused by conducted by
competent authority other than M.P. Police and or by C.B.I.
(iv) to grant any other relief, which this Hon’ble Court may deem fit
and proper in the facts and circumstances of the case including cost
of the litigation in favour of the petitioner.
Bar & Bench (www.barandbench.com)
That the said writ petition was filed by the mother of the one of the
deceased under trial who was alleged to have been killed by the
Police official of the Madhya Pradesh Police in a alleged fake
encounter which was carried on 01.11.2016. That main grievance of
the present petitioner is that the manner in which the investigation is
being carried out and the manner in which Madhaya Pradesh
Government has hastily passed an order of enquiry by the IPS
officer and thereafter, appointed a commission of High Court retired
Judge under the Enquiry of Commission Act, and also the way
Madhya Pradesh Chief Minister has went on declaring rewards for
the police personnel involved in the alleged extra judicial killing of
the innocent, unarmed under trial prisoners. That the Chief Minister
in a public meeting felicitated the cops involved in the alleged
encounter and declared awards of Rs 2 Lakh each to the police
personnel who took part in the encounter killing of eight under trial
prisoners, and further the Chief Minister publicity denounced
deceased under trail prisoners as the “terrorist” even though none of
them were convicted by any court of law.
The petitioner is having serious apprehension that fair and impartial
investigation could not be conducted because the police personnel
of the Madhya Pradesh were involved in this case. It is also not
possible to accept the state arguments that investigation at this
stage cannot be handed over to CBI/SIT. The accusations are
directed against the local police personnel. It is proper for the
petitioner or even the public to come forward to say that if the
investigation carried out by the police personnel of the State
Bar & Bench (www.barandbench.com)
Government of M.P., then the petitioner and other family member of
the deceased would be highly prejudiced and fair investigation would
also not come and in with proper finding, and in those circumstances
it would be fit and proper that the petitioner and other family member
of the deceased under trial should be assured that and independent
agency should be appointed to look into the matter, and that would
lend the final outcome of the investigation credibility.
That State of Madhya Pradesh has initiated following
investigations in the wake of alleged encounter involving:-
(a) Enquiry entrusted to Shri Anurag Sharma, IPS officer and in
charge of Special Investigation team working in the head quarters
of Bhopal.
(b) A Magisterial Enquiry in to the matter by Shri Rajiv Nandan
Shrivastava, Sub Divisional Magistrate, Berasiya; and
(c) An enquiry by a retired Judge of Madhya Pradesh High Court
Shri Justice S.K. Pande.
It is respectfully submitted that none of these enquiries are
said to be conducted out of the influence of Madhya Pradesh
Government and its authorities, the complicity of whom in the
alleged encounter killing of eight under trail prisoner is in question
and therefore, no matter how many enquiries are initiated by the
Madhya Pradesh Government to investigate the matter it will not
yield any result unless such enquiries are done out of the influence
of the authorities whose genuineness in handing the matter is under
challenged.
Bar & Bench (www.barandbench.com)
In order to impart a fair and impartial investigation, this
Hon’ble Court has held in a series of judgment including Rubabuddin
Sheikh V/s. State of Gujarat & Ors ( 2010) SCC 200 “that when the
accusation are directed against the local police personnel then it
would desirable to entrust the investigation to an independent
agency like the Central Bureau of Investigation so that all concerned
including the relatives of the deceased may feel assured that an
independent agency is looking into the matte and that would lend the
final outcome of the investigation credibility.
It is further respectfully submitted that as a matter of record,
except for initiating abovementioned enquiries the State of Madhya
Pradesh never followed the guidelines and directives provided by
this Hon’ble Court in the case of Peoples’s Union for Civil Liberties &
Anr. V/s. State of Maharashtra & Ors (2014) 10 SCC 635 “in its true
letter spirit”. On the contrary it went against these guidelines by
declaring rewards for the police personnel involved in the alleged
extra judicial killing of the innocent, unarmed under trial prisoners.
The High Court ought not to have rejected the petition only on the
ground that similar writ petition concerning the same encounter have
been rejected by the High Court, the High Court ought to have
appreciated that this Hon’ble Court in the case of PUCL Vs. State of
Maharashtra and other (2014) 10 SCC 635 has held as under;
16. Article 21 of the Constitution provides “no person shall be
deprived of his life or personal liberty except according to procedure
established by law”. This Court has stated time and again that Article
21 confers sacred and cherished right under the Constitution which
Bar & Bench (www.barandbench.com)
cannot be violated, except according to procedure established by
law. Article 21 guarantees personal liberty to every single person in
the country which includes the right to live with human dignity.
17. In line with the guarantee provided by Article 21 and other
provisions in the Constitution of India, a number of statutory
provisions also seek to protect personal liberty, dignity and basic
human rights. In spite of Constitutional and statutory provisions
aimed at safeguarding the personal liberty and life of a citizen, the
cases of death in police encounters continue to occur. This Court
has been confronted with encounter cases from time to time. In
Chaitanya Kalbagh (Chaitanya Kalbagh and Ors. v. State of U.P.
and Ors.; [(1989) 2 SCC 314]), this Court was concerned with a writ
petition filed under Article 32 of the Constitution wherein the impartial
investigation was sought for the alleged killing of 299 persons in the
police encounters. The Court observed that in the facts and
circumstances presented before it, there was an imperative need of
ensuring that the guardians of law and order do in fact observe the
code of discipline expected of them and that they function strictly as
the protectors of innocent citizens.
18. In R.S. Sodhi (R.S. Sodhi, Advocate v. State of U.P. and Ors.; [
1994 Supp (1) SCC 143]), a writ petition was brought to this Court
under Article 32 of the Constitution relating to an incident in which 10
persons were reported to have been killed in what were described
as “encounters” between the Punjab militants and the local police.
The Court observed, “Whether the loss of lives was on account of a
genuine or a fake encounter is a matter which has to be inquired into
and investigated closely”. The Court entrusted the investigation to
the Central Bureau of Investigation (for short, “the CBI”) to ensure
that the investigation did not lack credibility.(emphasis supplied)
That Article 21 of the Constitution of India guarantees “right to live
with human dignity”. Any violation of human rights is viewed
seriously by this Court as right to life is the most precious right
guaranteed by Article 21 of the Constitution. The guarantee by
Bar & Bench (www.barandbench.com)
Article 21 is available to every person and even the State has no
authority to violate that right.
That in the case of D.K. Basu (D.K. Basu v. State of West Bengal;
[(1997) 1 SCC 416]), this Court was concerned with custodial
violence and deaths in police lockups. While framing the
requirements to be followed in all cases of arrest or detention till
legal provisions are made in that behalf, this Court issued certain
directives as preventive measures. While doing so, the Court in para
29 (page 433 of the Report) made the following weighty
observations: 29. How do we check the abuse of police power?
Transparency of action and accountability perhaps are two possible
safeguards which this Court must insist upon. Attention is also
required to be paid to properly develop work culture, training and
orientation of the police force consistent with basic human values.
Training methodology of the police needs restructuring. The force
needs to be infused with basic human values and made sensitive to
the constitutional ethos. Efforts must be made to change the attitude
and approach of the police personnel handling investigations so that
they do not sacrifice basic human values during interrogation and do
not resort to questionable forms of interrogation. With a view to bring
in transparency, the presence of the counsel of the arrestee at some
point of time during the interrogation may deter the police from using
third-degree methods during interrogation.
9. The observations made by this Court in Om Prakash (Om
Prakash and Ors. v. State of Jharkhand through the Secretary,
Bar & Bench (www.barandbench.com)
Department of Home, Ranchi-1 and Anr.; [(2012) 12 SCC 72])(para
42, page 95 of the Report) are worth noticing:
42. It is not the duty of the police officers to kill the accused merely
because he is a dreaded criminal. Undoubtedly, the police have to
arrest the accused and put them up for trial. This Court has
repeatedly admonished trigger-happy police personnel, who
liquidate criminals and project the incident as an encounter. Such
killings must be deprecated. They are not recognised as legal by our
criminal justice administration system. They amount to State-
sponsored terrorism. But, one cannot be oblivious of the fact that
there are cases where the police, who are performing their duty, are
attacked and killed. There is a rise in such incidents and judicial
notice must be taken of this fact. In such circumstances, while the
police have to do their legal duty of arresting the criminals, they have
also to protect themselves. The requirement of sanction to prosecute
affords protection to the policemen, who are sometimes required to
take drastic action against criminals to protect life and property of the
people and to protect themselves against attack. Unless
unimpeachable evidence is on record to establish that their action is
indefensible, mala fide and vindictive, they cannot be subjected to
prosecution. Sanction must be a precondition to their prosecution. It
affords necessary protection to such police personnel. The plea
regarding sanction can be raised at the inception.
The High Court ought to have appreciated that further in case
Supra this Hon’ble Court has observed that revised
Bar & Bench (www.barandbench.com)
guidelines/procedures to be followed in cases of deaths caused in
police action framed by NHRC read as under:
A. When the police officer in charge of a police station receives
information about death in an encounter with the police, he shall
enter that information in the appropriate/ register.
B. Where the police officers belonging to the same police station are
members of the encounter party, whose action resulted in death, it is
desirable that such cases are made over for investigation to some
other independent investigation agency, such as State CBCID.
C. Whenever a specific complaint is made against the police
alleging commission of a criminal act on their part, which makes out
a cognizable case of culpable homicide, an FIR to this effect must be
registered under appropriate sections of the I.P.C. Such case shall
be investigated by State CBCID or any other specialized
investigation agency.
D. A magisterial enquiry must be held in all cases of death which
occurs in the course of police action, as expeditiously as possible,
preferably, within three months. The relatives of the deceased, eye
witnesses having information of the circumstances leading to
encounter, police station records etc. must be examined while
conducting such enquiry.
E. Prompt prosecution and disciplinary action must be initiated
against all delinquent officers found guilty in the magisterial
enquiry/police investigation.
F. No out-of-turn promotion or instant gallantry rewards shall be
bestowed on the concerned officers soon after the occurrence. It
must be ensured at all costs that such rewards are
given/recommended only when the gallantry of the concerned officer
is established beyond doubt.
Bar & Bench (www.barandbench.com)
G. (a) All cases of deaths in police action in the states shall be
reported to the Commission by the Senior Superintendent of
Police/Superintendent of Police of the District within 48 hours of
such death in the following format: 1. Date and place of occurrence
2. Police station, district 3. Circumstances leading to death : (i) Self-
defence in encounter (ii) In course of dispersal of unlawful assembly
(iii) In the course of effecting arrest (iv) Any other circumstances 4.
Brief facts of the incident 5. Criminal case No. 6. Investigating
agency (b) A second report must be sent in all cases of death in
police action in the state by the Sr. Superintendent of
Police/Superintendent of Police to the commission within three
months providing following information: 1. Post mortem report 2.
Inquest report 3. Findings of the magisterial enquiry/enquiry by
senior officers disclosing: (i) Names and designation of police
official, if found responsible for the death: (ii) Whether use of force
was justified and action taken was lawful: (iii) Result of the forensic
examination of 'handwash' of the deceased to ascertain the
presence of residue of gun powder to justify exercise of right of self
defence; and (iv) Report of the Ballistic Expert on examination of the
weapons alleged to have been used by the deceased and his
companions.
5. Because affording the victim’s family and legal representative
the right to request that an independent qualified representative be
present during the autopsy of the victim’s body (Provision 16).
6. Calling for the prompt submission of a written report on the
investigation specifically detailing the methods utilized as well as the
findings of fact and law resulting from the inquiry. It further requires
that such reports be released to the public (Provision 17).
7. Recognizing that those undertaking these investigations must
“have at their disposal all the necessary budgetary and technical
Bar & Bench (www.barandbench.com)
resources for effective investigation” into police killings.). The
principles so framed by the UDHR are intended to guarantee
independence while investigating police killings and help in
preventing potential for abuse, corruption, ineffectiveness and
neglect in investigation.
In an appropriate case when the court feels that investigation
by police authority is not in the proper direction and in order to do
complete justice in the case and as the police officials are involved in
the said crime, it was always open to the court to hand over
investigation to independent agency like CBI/SIT appointed by the
court.
It is respectfully submitted that the one man enquiry
commission has not afforded any opportunity of hearing to the family
members of the deceased although they have filed affidavit and
various documents /CDs in support of their case, and even not
permitted their counsel to cross examine the witnesses who
appeared before the commission. The entire enquiry is sham and a
cover up to the alleged fake encounter carried out by the Police
Officials of the Madhya Pradesh Government.
Therefore this matter is required to be investigated by an
independent agency or by SIT appointed by this Hon’ble Court.
Hence the present Special Leave Petition.
Bar & Bench (www.barandbench.com)
LIST OF DATES
18.12.2013 That the petitioner son namely Mohammed
Khalid (deceased) was picked up by the local
police with the aid of Madhya Pradesh Police
and retained him around 4 days illegally
thereafter, produce in before the local court and
implicated him into crime i.e. FIR No. 22/2013
and FIR No.1/2014 later on which were
culminated into Session Case No. 502/2014,
541/2014 which were pending trial before the
Session Court, Bhopal
2014 The deceased son of the petitioner was
undergoing trial before the Session Court,
Bhopal in Session Case No. 502/2014, 541/2014
for charges of terror and he was kept in high
security prison was category 1 in Central Prison
Bhopal.
30/31 Oct. 2016 It was alleged that in the intervening night of
30/31 Oct. 2016 the under trial escaped the High
Security Prison and subsequently killed in the so
called encounter on 31.10.2016 which was
conducted in the vicinity of Bhopal. It was also
alleged that all the accused which have been
killed were belonging to SIMI Organization and
before escaping the High Security Jail by
Bar & Bench (www.barandbench.com)
breaking jail security and also killing one of the
Guard.
07.11.2016 Madhya Pradesh Government constituted a one
man commission under the Commission of
Inquiries Act of 1952 and appointed a (Retd.)
Judge namely Justice S.K. Pande of the High
Court of Madhya Pradesh.
11.11.2016 Writ Petition No. 18305 of 2016 filed by one
Journalist, a public spirited person and a social
worker seeking a direction to get inquiry
conducted by a higher judicial authority
pertaining to allege encounter. The said writ
petition was disposed of holding that one man
commission inquiry set up by the State
Government from prima facie needs a
requirement of the law and the guidelines laid
down by the supreme court. Copy of the order
dated 11.11.2016 passed by the High Court in
the said writ is annexed herewith and marked as
ANNEXURE P-1 (Pg. No……to ….)
15.11.2016 The petitioner is mother of one of the deceased
has filed a writ petition No. 18964 of 2016 under
Article 226 of the Constitution of India seeking
certain directions by the Hon’ble High Court.
Bar & Bench (www.barandbench.com)
Including the direction of appointing SIT/ to
handover the investigation to CBI. A copy of the
Writ Petition No. 18964 of 2016 dated
15.11.2016 is annexed as ANNEXURE P-2 (Pg.
No…..to…..)
22.12.2016 That another writ petition no. 20370 /2016 was
filed by the brother of the one of the deceased
seeking certain directions including the direction
of investigation by the independent agency and
also sought direction to prosecute the police
personnel involved in the said encounter. The
said writ petition was disposed of holding that the
guidelines stipulated in the case of PUCL Vs.
State of Maharastra and other (2014) 10 SCC
635 in para 31.1, 31.3 and 31.4 has been
adhered to, this court refrained from entertaining
a similar issue by the relative of one of the
deceased. A true copy of the said order passed
by the High Court in writ petition no. 20370 /2016
dated 22.12.2016 is annexed herewith and
marked as ANNEXURE P- 3 (Pg. No…..to……)
2016 Third writ petition no. 19280/2016, was filed
before the High Court by one social worker,
seeking direction of a independent inquiry into an
encounter that took place in the District of
Bar & Bench (www.barandbench.com)
Bhopal in which 8 SIMI activist have been killed.
The said writ petition was disposed of by the
High Court holding that this issue has already
been considered by the co-ordinate bench of this
Hon’ble Court in writ Petition No. 20370/16
wherein court has refused to interfere in the
matter by one of the into the matter as a one
man inquiry commission has already been
appointed by the State Government. A copy of
the said order dated 2016 passed by the High
Court is annexed herewith and marked as
ANNEXURE P- 4 ( Page No. ____to____)
10.01.2017 That in between some new material has come
out which was not earlier before the High Court
therefore, Petitioner filed an application for taking
additional document and facts on the record in
the writ petition no. 18964 of 2016 bringing on
record cutting of the National News Paper
carrying of news article of such announcement
made by the Chief Minister of Madhya Pradesh
and also copy of the transcript public by National
News Channel on its website and also filed copy
of the fact finding report. A copy of the said
application along with its annexure are annexed
herewith and marked as ANNEXURE P- 5 (
Bar & Bench (www.barandbench.com)
Page No.____to_____)
21.02.2017 Petitioner filed detailed written notes of argument
during the final hearing of the writ petition
bringing into notice of the High Court that how
the one man Commission is not permitting the
counsel as well as family members to participate
into the proceeding which was conducted by the
one man commission in a blatant violation of
natural justice. A copy of the said written notes of
argument dated 21.02.2017 is annexed herewith
and marked as ANNEXURE P- 6 ( page No.
___to____).
21.02.2017 The Hon’ble High Court has been pleased to
dismiss of the writ petition ignoring all the
material placed before the High Court which was
earlier not placed before the High Court. The
High Court has held; that in view of these orders
passed in various petitions at the instance of
public spirited person and also at the instance of
relative of the deceased and taking into
consideration the relief sought vide present
petition is similar to that sought in writ petition
no. 18305/2016, W.P. No. 20370/16 and W.P.
No. 19280/16 this court declined to grant relief
as sought for by the petitioner. State the petition
Bar & Bench (www.barandbench.com)
is disposed of in the terms of the order passed in
Writ Petition No.18305/2016, W.P. No. 20370/16
and W.P. No. 19280/16.
06.2017 Hence, the present Special Leave Petition.
Bar & Bench (www.barandbench.com)
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION [Under Order XXII Rule 2(1) of S.C. Rules 2013] (Under Article 136 of the Constitution of India)
SPECIAL LEAVE PETITION (CRL.) NO. OF 2017
(WITH PRAYER FOR INTERIM RELIEF)
IN THE MATTER OF: POSITION OF PARTIES Before High
Court Before This
Court Mehmooda Mohammed Salim Muchchale, age: 61 years, R/o House No. 460, Vijay Nagar, Nayee Zindagi, Majerewadi, Solapur. Maharashtra
Petitioner Petitioner
Versus
1. Union of India Through Principal Secretary, Secretariat, New Delhi.
Respondent No.1
Respondent No.1
2. State of Madhya Pradesh through its Principal Secretary, Home Department, Madhya Pradesh.
Respondent No.2
Respondent No.2
3. Inspector General of Police, Bhopal, Madhya Pradesh.
Respondent No.3
Respondent No.3
4. The Superintendent of Police Bhopal, Madhya Pradesh.
Respondent No.4
Respondent No.4
5. The Principal Jail Superintendent Central Prison, Bhopal, Madhya Pradesh.
Respondent No.5
Respondent No.5
[ All are contesting respondents]
To THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS OTHER COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF THE PETITIONER ABOVE-NAMED
Bar & Bench (www.barandbench.com)
MOST RESPECTFULLY SHEWETH:
1. This petition by Special Leave to Appeal seeks to assail the
impugned final judgment and order dated 21.02.2017 passed by the
Hon’ble High Court of Judicature at Jabalpur at Jabalpur in Criminal
Writ Petition No. 18964 of 2016. Whereby the Hon’ble High Court
has been pleased to dismiss of the writ petition holding that in view
of these orders passed in various petitions at the instance of public
spirited person and also at the instance of relative of the deceased
and taking into consideration the relief sought vide present petition is
similar to that sought in writ petition no. 18305/2016, W.P. No.
20370/16 and W.P. No. 19280/16 this court declined to grant relief
as sought for by the petitioner.
1A. That no intra court appeal is maintainable against the impugned
order. Hence the present SLP is being filed.
2. QUESTIONS OF LAW:
The following substantial questions of law arise for kind
consideration by this Hon’ble Court:
I. Whether the High Court has erred in not considering that the one
man Commission has not permitted the petitioner and other relatives
of the deceased under trial prisoners to participate in the proceeding
and also not permitted the cross examine the version of the police
official?
II. Whether in the facts and circumstances of the present case the
guidelines and directives issued by this Hon’ble Court in the case of
Bar & Bench (www.barandbench.com)
PUCL Vs. State of Maharashtra & Ors (2014) 10 SCC 635 which
says that these guidelines have mandatorily to be followed in all
police encounter cases, and whether these directives of this Hon’ble
Court have been followed in the present case?
III. Whether the promotion and instant rewards given by the State
Government to the police officials involves in the said encounter is
against the spirit and directions of this Hon’ble Court judgment in the
case of PUCL Vs. State of Maharashtra and other (2014) 10 SCC
635 ?
IV. Whether when a police encounter occurs, it is important that a
complaint is registered; the evidence is preserved; independent and
fair investigation takes place; victims are informed and inquest is
conducted?
V. Whether there is bar not to entertain a petition seeking directions
including the directions which were earlier sought by the some
person and their petition have been rejected on the ground that one
man commission under the enquiry commission act has been
appointed, so therefore no further petition can be entertained even
though it raises some substantial question of law and produces the
relevant materials which were earlier not before the court?
VI. Whether in the facts and circumstances of the present case of
killings in police encounters require independent investigation?
Bar & Bench (www.barandbench.com)
VII. Whether the killings of under trial prisoners in police encounters
affect the credibility of the rule of law and the administration of the
criminal justice system?
VIII. Whether in the facts and circumstances of the case the High Court
was justified in not entertaining the petition and rejected only on the
ground that earlier some petition has been dismissed by the High
Court?
IX. Whether the High Court ought not have examine the case on its
merits when there is serious violation of the directives and guideline
issued by this Hon’ble Court in the case of PUCL Vs. State of
Maharashtra and other (2014) 10 SCC 635?
X. Whether the one man enquiry which is formed only with a view to
hush up the case, moreover when the petitioner and other relatives
of the allegedly encountered SIMI under trial prisoners have filed
documents and other electronics evidence before the Commission
and the Commission is not bothered to hear them and not afforded
any opportunity to their counsel to cross examine official witnesses
who appeared before the Commission?
XI. Whether the commission has examined the case in correct
prospective and carried out fair investigation to the satisfaction of the
relatives of alleged encountered SIMI members?
XII. Whether the commission has carried out fair and impartial
investigation and submitted their report without hearing the relatives
and their witnesses?
Bar & Bench (www.barandbench.com)
XIII. Whether in the facts and circumstances of the case the Commission
report is sustainable when the commission has seriously flouted the
principle of natural justice?
3. DECLARATION IN TERMS OF RULE 2(2):
The Petitioner state that no other petition seeking leave to Appeal
has been filed by them against the impugned Judgment and Final
Order dated 21.02.2017 passed by the Hon’ble High Court of
Judicature at Jabalpur at Jabalpur in Criminal Writ Petition No.
18964 of 2016.
4. DECLARATION IN TERMS OF RULE 4:
The Annexure P-1 to P- 6 produce along with the SLP are true
copies of the pleadings / documents which formed part of the
records of the case in the Courts below against whose order the
leave to appeal is sought for in this petition.
5. GROUNDS:
The present special leave petition is being filed against the
impugned judgment and final order dated 21.02.2017 amongst other
grounds:
A. Because the Hon’ble High Court has erred in not considering that
the one man Commission has not permitted the petitioner and other
relatives of the deceased under trial prisoners to participate in the
proceeding and also not permitted the cross examine the version of
the police official. Therefore, grave injustice has occurred to them.
Bar & Bench (www.barandbench.com)
B. Because in the facts and circumstances of the present case of
killings in police encounters require independent investigation. That
in order to impart a fair and impartial investigation, this Hon’ble Court
has held in a series of judgment including Rubabuddin Sheikh V/s.
State of Gujarat & Ors ( 2010) SCC 200 “that when the accusation
are directed against the local police personnel then it would
desirable to entrust the investigation to an independent agency like
the Central Bureau of Investigation so that all concerned including
the relatives of the deceased may feel assured that an independent
agency is looking into the matte and that would lend the final
outcome of the investigation credibility.
C. Because the High Court ought to have appreciated the materials
produced before the Court and ought not to have dismissed the writ
petition holding identical prayers have been rejected by the
coordinate bench. It has to appreciated the facts and circumstances
of the present case, whether the guidelines and directives issued by
this Hon’ble Court in the case of PUCL Vs. State of Maharashtra &
Ors (2014) 10 SCC 635 which says that these guidelines have
mandatorily to be followed in all police encounter cases. That the
said directives of this Hon’ble Court have been followed in the
present case or not.
D. Because the High Court ought to have appreciated that the
promotion and instant rewards given by the State Government to the
police officials involves in the said encounter is against the spirit and
Bar & Bench (www.barandbench.com)
directions of this Hon’ble Court judgment in the case of PUCL Vs.
State of Maharashtra and other (2014) 10 SCC 635 .
E. Because when a police encounter occurs, it is important that a
complaint is registered; the evidence is preserved; independent and
fair investigation takes place; victims are informed and inquest is
conducted.
F. Because there is no bar to entertain a petition seeking directions
including the directions which were earlier sought by the some
person and their petition have been rejected on the ground that one
man commission under the enquiry commission act has been
appointed, so therefore no further petition can be entertained even
though it raises some substantial question of law and produces the
relevant materials which were earlier not before the court.
G. Because the killings of under trial prisoners in police encounters
affect the credibility of the rule of law and the administration of the
criminal justice system.
H. Because the High Court has erred in not examining the case on its
merits when there is serious violation of the directives and guideline
issued by this Hon’ble Court in the case of PUCL Vs. State of
Maharashtra and other (2014) 10 SCC 635.
I. Because the one man enquiry is formed only with a view to cover up
the case, moreover when the petitioner and other relatives of the
allegedly encountered SIMI under trial prisoners have filed
documents and other electronics evidence before the Commission
Bar & Bench (www.barandbench.com)
and the Commission is not bothered to hear them and not afforded
any opportunity to their counsel to cross examine official witnesses
who appeared before the Commission.
J. Because the High Court ought to have appreciated that the
commission has not examining the case in correct prospective and
not carrying out fair investigation to the satisfaction of the relatives of
alleged encountered SIMI members.
K. Because in the facts and circumstances of the case the Commission
report is not sustainable when the commission has seriously flouted
the principle of natural justice.
L. Because the High Court ought to have appreciated that this Hon’ble
Court in the case of PUCL Vs. State of Maharashtra and other
(2014) 10 SCC 635 has held; “Article 21 of the Constitution of India
guarantees “right to live with human dignity”. Any violation of human
rights is viewed seriously by this Court as right to life is the most
precious right guaranteed by Article 21 of the Constitution. The
guarantee by Article 21 is available to every person and even the
State has no authority to violate that right.
8. In D.K. Basu (D.K. Basu v. State of West Bengal; [(1997) 1 SCC
416]), this Court was concerned with custodial violence and deaths
in police lockups. While framing the requirements to be followed in
all cases of arrest or detention till legal provisions are made in that
behalf, this Court issued certain directives as preventive measures.
While doing so, the Court in para 29 (page 433 of the Report) made
the following weighty observations: 29. How do we check the abuse
Bar & Bench (www.barandbench.com)
of police power? Transparency of action and accountability perhaps
are two possible safeguards which this Court must insist upon.
Attention is also required to be paid to properly develop work culture,
training and orientation of the police force consistent with basic
human values. Training methodology of the police needs
restructuring. The force needs to be infused with basic human
values and made sensitive to the constitutional ethos. Efforts must
be made to change the attitude and approach of the police
personnel handling investigations so that they do not sacrifice basic
human values during interrogation and do not resort to questionable
forms of interrogation. With a view to bring in transparency, the
presence of the counsel of the arrestee at some point of time during
the interrogation may deter the police from using third-degree
methods during interrogation.
9. The observations made by this Court in Om Prakash (Om
Prakash and Ors. v. State of Jharkhand through the Secretary,
Department of Home, Ranchi-1 and Anr.; [(2012) 12 SCC 72])(para
42, page 95 of the Report) are worth noticing:
42. It is not the duty of the police officers to kill the accused merely
because he is a dreaded criminal. Undoubtedly, the police have to
arrest the accused and put them up for trial. This Court has
repeatedly admonished trigger-happy police personnel, who
liquidate criminals and project the incident as an encounter. Such
killings must be deprecated. They are not recognised as legal by our
criminal justice administration system. They amount to State-
sponsored terrorism. But, one cannot be oblivious of the fact that
Bar & Bench (www.barandbench.com)
there are cases where the police, who are performing their duty, are
attacked and killed. There is a rise in such incidents and judicial
notice must be taken of this fact. In such circumstances, while the
police have to do their legal duty of arresting the criminals, they have
also to protect themselves. The requirement of sanction to prosecute
affords protection to the policemen, who are sometimes required to
take drastic action against criminals to protect life and property of the
people and to protect themselves against attack. Unless
unimpeachable evidence is on record to establish that their action is
indefensible, mala fide and vindictive, they cannot be subjected to
prosecution. Sanction must be a precondition to their prosecution. It
affords necessary protection to such police personnel. The plea
regarding sanction can be raised at the inception.
M. Because the High Court ought to have appreciated that the revised
guidelines/procedures to be followed in cases of deaths caused in
police action framed by NHRC read as under:
“ A. When the police officer in charge of a police station receives
information about death in an encounter with the police, he shall
enter that information in the appropriate/ register.
B. Where the police officers belonging to the same police station are
members of the encounter party, whose action resulted in death, it is
desirable that such cases are made over for investigation to some
other independent investigation agency, such as State CBCID.
C. Whenever a specific complaint is made against the police
alleging commission of a criminal act on their part, which makes out
Bar & Bench (www.barandbench.com)
a cognizable case of culpable homicide, an FIR to this effect must be
registered under appropriate sections of the I.P.C. Such case shall
be investigated by State CBCID or any other specialized
investigation agency.
D. A magisterial enquiry must be held in all cases of death which
occurs in the course of police action, as expeditiously as possible,
preferably, within three months. The relatives of the deceased, eye
witnesses having information of the circumstances leading to
encounter, police station records etc. must be examined while
conducting such enquiry.
E. Prompt prosecution and disciplinary action must be initiated
against all delinquent officers found guilty in the magisterial
enquiry/police investigation.
F. No out-of-turn promotion or instant gallantry rewards shall be
bestowed on the concerned officers soon after the occurrence. It
must be ensured at all costs that such rewards are
given/recommended only when the gallantry of the concerned officer
is established beyond doubt.
G. (a) All cases of deaths in police action in the states shall be
reported to the Commission by the Senior Superintendent of
Police/Superintendent of Police of the District within 48 hours of
such death in the following format: 1. Date and place of occurrence
2. Police station, district 3. Circumstances leading to death : (i) Self-
defence in encounter (ii) In course of dispersal of unlawful assembly
(iii) In the course of effecting arrest (iv) Any other circumstances 4.
Brief facts of the incident 5. Criminal case No. 6. Investigating
Bar & Bench (www.barandbench.com)
agency (b) A second report must be sent in all cases of death in
police action in the state by the Sr. Superintendent of
Police/Superintendent of Police to the commission within three
months providing following information: 1. Post mortem report 2.
Inquest report 3. Findings of the magisterial enquiry/enquiry by
senior officers disclosing: (i) Names and designation of police
official, if found responsible for the death: (ii) Whether use of force
was justified and action taken was lawful: (iii) Result of the forensic
examination of 'handwash' of the deceased to ascertain the
presence of residue of gun powder to justify exercise of right of self
defence; and (iv) Report of the Ballistic Expert on examination of the
weapons alleged to have been used by the deceased and his
companions.
Affording the victim’s family and legal representative the right to
request that an independent qualified representative be present
during the autopsy of the victim’s body (Provision 16). 6. Calling for
the prompt submission of a written report on the investigation
specifically detailing the methods utilized as well as the findings of
fact and law resulting from the inquiry. It further requires that such
reports be released to the public (Provision 17).
Recognizing that those undertaking these investigations must “have
at their disposal all the necessary budgetary and technical resources
for effective investigation” into police killings.). The principles so
framed by the UDHR are intended to guarantee independence while
investigating police killings and help in preventing potential for
abuse, corruption, ineffectiveness and neglect in investigation
Bar & Bench (www.barandbench.com)
6. GROUNDS FOR INTERIM RELIEF:
I. Because of the grounds enumerated hereinabove in the main
petition, which are not being repeated herein for the sake of brevity
petitioner crave leave of the Hon’ble Court to refer and rely upon the
same at the time hearing.
II. Because the impugned order is legally and factually unsustainable in
the eyes of law laid down by this Hon’ble Court in plethora of
judgments.
III. Because the killings of under trial prisoners in police encounters
affect the credibility of the rule of law and the administration of the
criminal justice system.
IV. Because the High Court has erred in not examining the case on its
merits when there is serious violation of the directives and guideline
issued by this Hon’ble Court in the case of PUCL Vs. State of
Maharashtra and other (2014) 10 SCC 635.
V. Because the one man enquiry is formed only with a view to cover up
the case, moreover when the petitioner and other relatives of the
allegedly encountered SIMI under trial prisoners have filed
documents and other electronics evidence before the Commission
and the Commission is not bothered to hear them and not afforded
any opportunity to their counsel to cross examine official witnesses
who appeared before the Commission.
VI. Because the High Court ought to have appreciated that the
commission has not examining the case in correct prospective and
Bar & Bench (www.barandbench.com)
not carrying out fair investigation to the satisfaction of the relatives of
alleged encountered SIMI members.
7. MAIN PRAYER:
In view of the facts and circumstances of the case, it is most humbly
prayed that this Hon’ble Court may be pleased to:
(a) Grant Special Leave to Appeal against the impugned final judgment
and order dated 21.02.2017 passed by the Hon’ble High Court of
Judicature at Jabalpur at Jabalpur in Criminal Writ Petition No.
18964 of 2016.
(b) Pass such other and further order or orders as this Hon’ble Court
may deem fit and proper in the facts and circumstances of the case.
8. PRAYER FOR INTERIM RELIEF:
In view of the facts and circumstances, it is therefore, most humbly
prayed that this Hon’ble Court may graciously be pleased to:
(a) ex-parte direct the respondents to investigate under its own
supervision by forming S.I.T. and or by C.B.I to conduct investigation
in the alleged encounter;
(b) Pass such other and further order or orders as this Hon’ble Court
may deem fit and proper in the facts and circumstances of the case.
AND FOR THIS ACT OF KINDNESS, THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY.
DRAWN ON: .05.2017 Drawn & Filed by: FILED ON: .06.2017 (FARRUKH RASHEED) Advocate for the Petitioner
Bar & Bench (www.barandbench.com)
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.) NO. OF 2017
IN THE MATTER OF: Mehmooda Mohammed Salim Mucchhale …….Petitioner
Versus Union of India & Ors. ….…Respondents
CERTIFICATE “Certified that the Special Leave Petition is confined only to the pleading
before the Court / Tribunal whose order is challenged and the other
documents relied upon in those proceedings. No additional facts,
documents or grounds have been taken therein or relied upon in the
Special Leave Petition, which were not part of the record before High
Court. It is further certified that copies of documents/annexures attached to
the Special Leave Petition is necessary to answer the question of law
raised in the petition or to make out ground urged in the Special Leave
Petition for consideration of this Hon’ble Court. This certificate is given by
the Petitioner /Person authorized by the Petitioner whose affidavit is filed in
support of the Special Leave Petition.”
DRAWN ON: .05.2017 Drawn & Filed by: FILED ON: .06.2017 (FARRUKH RASHEED) Advocate for the Petitioner
Bar & Bench (www.barandbench.com)
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CRL.) NO. OF 2017
IN THE MATTER OF: Mehmooda Mohammed Salim Mucchhale …….Petitioner
Versus Union of India & Ors. ….…Respondents
AFFIDAVIT
I,Mubin Shaikh, S/o. Mr. Mohammad Sadiq Shaikh, aged about 25 years,
R/o. Postal Colony, Block B-2/2 Civil Lines, Hotgi Road Solapur,
Maharashtra do hereby solemnly affirm and declare as under:-
1. That I am complainant in the aforesaid matter and I am fully
conversant with the facts & circumstances of above mentioned case,
hence competent to swear this affidavit.
2. That the accompanying Synopsis and List of Dates ( B to ),
Special Leave Petition Paras 1 to 8 ( pages ___ to____), and
accompanying applications CRLMPs have been drafted under my
instructions. I have understood the contents therein which are true to
my knowledge.
3. That the annexure P-1 to P- 4 are the true copy of their respective
originals.
DEPONENT
VERIFICATION:
Bar & Bench (www.barandbench.com)
I, the deponent above named do hereby verify that the contents of
paras 1 to 3 of the present affidavit are true and correct to the best of my
knowledge and belief, and nothing material has been concealed thereform.
Verified at Solapur on this 18th day of January, 2017
DEPONENT
Bar & Bench (www.barandbench.com)