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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


IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CRL.) NO. OF 2017



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


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.


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


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.


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


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


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,


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


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.


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


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.


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


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.


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


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 (


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


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.



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


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


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?


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?


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.


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


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


criminal justice system.

H. Because the High Court has erred in not examining the case on its



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





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


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


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


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


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


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


criminal justice system.

IV. Because the High Court has erred in not examining the case on its



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




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


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


IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRL.) NO. OF 2017



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



CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CRL.) NO. OF 2017



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:


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


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