SYNOPSIS and LIST of DATES That the Present Writ Petition Is Being

Bar and Bench (www.barandbench.com)

SYNOPSIS AND LIST OF DATES

That the present writ petition is being filed in public interest to enforce the Rule of Law guaranteed under Article 14 and 21 of the Constitution of India. This Hon’ble Court has time and again held that the common public has an inherent interest in prosecution of persons who commit criminal offences. Therefore, this writ petition is being filed in the collective interest of the public towards ensuring that the criminal justice system works in a non-partisan manner and a fresh investigation is carried out fairly to bring to book the real culprits in the murder of Shri Haren Pandya, a public figure and an ex home minister of the State of Gujarat, who was murdered in 2003 and subsequently the persons accused of the murder were acquitted by the Hon’ble High Court which called the investigation conducted, apparently under the present NIA Chief, Mr. Y. C. Modi, as “botched” and “misdirected” in these words: “…………What clearly stands out from the record of the present case is that the investigation in the case of murder of Shri Haren Pandya has all throughout been botched up and blinkered and has left a lot to be desired. The investigating officers concerned ought to be held accountable for their inaptitude resulting into injustice, huge harassment of many persons concerned and enormous waste of public resources and public time of the Courts.”

Public disquiet has been unabated regarding the highly unsatisfactory way in which investigation has been carried out into the murder of a popular BJP leader who was also the former Home and Revenue Minister of the State. There may be possibly a shielding of high place officials. Aside from existing doubts that have been from the beginning of the investigation, fresh developments make this petition imperative.

The need for this petition arises due to some startling information that has recently come to light, and has been extensively reported by the media regarding Mr. Haren Pandya’s Bar and Bench (www.barandbench.com)

murder, information which was never investigated into by the investigating agency, the CBI. This information along with some earlier revelations about the murder only confirm the apprehensions raised by the High Court of Gujarat in its judgment dated 29th August, 2011 in Criminal Appeal Nos. 975-981/2007, 984-986/2007, 1049/2007 and 1188/2007. The High Court acquitted all the accused and raised serious questions over the investigation carried out in the instant case in these words.

An appeal against the High Court’s judgment has already been preferred by the CBI and the State of Gujarat and the same is pending before this Hon’ble Court. However, the record of that case, will not reflect the disturbing developments that have come to light recently regarding the death of Mr. Haren Pandya. This has made it imperative that a fresh investigation is carried out at the earliest to ensure that the real culprits can be apprehended.

Date Event 26th March, Mr. Haren Pandya is murdered in 2003 Ahmedabad. Gujarat Police registers an FIR and begins its investigation 28th March, The investigation is handed over to CBI 2003 which files an FIR and takes over the matter. April-June 15 people are arrested for participating in 2003 a conspiracy to murder Mr. Haren Pandya 1st June, Sections of Preventions of Terrorist Act, 2003 2002 are added to the offences under which the arrested accused have been charged 11th Special Court, seized of the matter, December, frames charges against the 15 people 2003 arrested by the CBI 26th Sohrabuddin Sheikh, a gangster, is killed November, in an encounter along with his wife 2005 Kauser Bi. Bar and Bench (www.barandbench.com)

Later several high ranking police officers including DG Vanzara as well as the then Home Minister of Gujarat, Amit Shah, is arrested as accused in the case. 15th Mr. Vithalbhai Pandya, father of Mr. December, Haren Pandya files an application before 2006 the Special Court seeking further investigation into the matter alleging that his son’s murder was a political conspiracy and that the CBI has deliberately sabotaged the investigation to benefit powerful people in the administration.

He also alleges that the CBI had dropped Ms. Jagruti Pandya, wife of Mr. Haren Pandya, as a witness as it would reveal the reality behind Mr. Haren Pandya’s murder and highlight the blinkered approach being adopted by the investigators. 18th Special Court rejects Mr. Vithalbhai December, Pandya’s application for further 2006 investigation 26th March, Mr. Vithalbhai Pandya again submits an 2007 application for further investigation into Mr. Haren Pandya’s murder. However, the Special Court again rejects this application. 25th June, Special Court passes the final judgment 2007 in the trial and convicts 12 people for Mr. Haren Pandya’s murder 16th June, High Court of Gujarat dismisses Mr. 2008 Vithalbhai Pandya’s appeal against Special Court’s order rejecting the application for further investigation into Mr. Haren Pandya’s murder and denies the plea for further/ re-investigation of the murder 15th July, Mr. Vithalbhai Pandya’s SLP against the 2009 Gujarat High Court’s order denying the plea for further investigation/re- Bar and Bench (www.barandbench.com)

investigation is dismissed by this Hon’ble Court 29th August, High Court of Gujarat passes its 2011 judgment in the appeal against conviction filed by the accused and overturns the trial court’s judgment and all the accused in Mr. Haren Pandya’s murder are acquitted.

The High Court notes that the murder, as per the prosecution’s story, seems improbable. It also notes in quite stringent terms that the investigating agency has shown inaptitude in its investigation and that due to a “botched” and “misdirected” investigation, injustice has been caused. 6th February, Ms. Jagrutipandya’s, wife of Mr. Haren 2012 Pandya, writ petition before the High Court of Gujarat seeking a reinvestigation into Mr. Haren Pandya’s murder is dismissed o by the High Court on the grounds that since the SLP against the judgment of the High Court acquitting all the accused is pending before the Supreme Court, it would not be proper for the High Court to entertain a petition seeking re-investigation into the matter. 21st Times of India reports that DG Vanzara, September, a Gujarat cadre IPS officer, in jail and 2013 undergoing trial for staging fake encounters, told the CBI officers questioning him that Mr. Haren Pandya was killed as a part of a political conspiracy. 2016 A book called Gujarat Files by Ms. Rana Ayyub, a journalist, is published which contains a transcript of a secretly recorded conversation between Ms. Rana Ayyub and YA Shaikh, a Gujarat Police officer who was the IO who had investigated the case in the first two days before the same was handed over to the Bar and Bench (www.barandbench.com)

CBI.

As per the conversation, YA Shaik reveals that the CBI did not do any investigation of its own and merely repeated what was told to them by the Gujarat Police. He also reveals that Mr. Haren Pandya’s murder was a political conspiracy and that several politicians as well as IPS officers including DG Vanzara were involved in the conspiracy to murder Mr. Pandya 3rd November, Azam Khan, a witness in the fake 2018 encounter case of Sohrabuddin Sheikh, Kauser Bi and Tulsiram Prajapati, is produced before the trial court for his deposition.

He reveals during his deposition that Sohrabuddin Sheikh had told him that Mr. Haren Pandya was murdered as a part of a contract killing for which the contract was given by DG Vanzara. He also reveals that Sohrabuddin’s associate Tulsiram Prajapati along with two others had murdered Mr. Haren Pandya as part of that contract.

In his deposition he mentions that he had already given this information to CBI in 2010 21st Special Court hearing the fake encounter December, case of Sohrabuddin Sheikh, Kauser Bi 2018 and Tulsiram Prajapati acquits all the accused. However, it notes that the prosecution of the case was highly unsatisfactory which has resulted in injustice to the three persons killed. 21.01.2019 Hence, the present writ petition IN THE SUPREME COURT OF INDIA (CRIMINAL ORIGINAL JURISDICTION)

(PUBLIC INTEREST LITIGATION) WRIT PETITION (CRIMINAL) NO. ______OF 2019 Bar and Bench (www.barandbench.com)

IN THE MATTER OF:- CENTRE FOR PUBLIC INTEREST LITIGATION THROUGH ITS SECRETARY MS. KAMINI JAISWAL 43, LAWYERS’ CHAMBERS SUPREME COURT OF INDIA NEW DELHI MOBILE: 9810238874 E-Mail: [email protected] … PETITIONER

VERSUS

UNION OF INDIA THROUGH SECRETARY MINISTRY OF HOME AFFAIRS NORTH BLOCK NEW DELHI

THE CENTRAL BUREAU OF INVESTIGATION THROUGH ITS DIRECTOR PLOT NO. 5-B, 6TH FLOOR CGO COMPLEX, LODHI ROAD NEW DELHI-110003 … RESPONDENTS

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA, 1950 SEEKING INTER ALIA FRESH INVESTIGATION OF THE MURDER OF LATE SHRI HAREN PANDYA UNDER THE SUPERVISION OF THIS HON’BLE COURT

To The Hon’ble Chief Justice And his companion justices of the Supreme Court of India

The humble Petition of the Petitioner above named

MOST RESPECTFULLY SHOWETH:

That the present writ petition is being filed in public interst to enforce the Rule of Law guaranteed under Article 14 and 21 of the Constitution of India. This Hon’ble Court has time and again held that the common public has an inherent interest in prosecution of persons who commit criminal offences. Therefore, this writ petition is being filed in the collective interest of the public towards ensuring that the criminal justice system works in a non-partisan manner and a fresh investigation is carried out fairly to bring to Bar and Bench (www.barandbench.com)

book the real culprits in the murder of Shri Haren Pandya, a public figure and an ex home minister of the State of Gujarat, who was murdered in 2003 and subsequently the persons accused of the murder were acquitted by the Hon’ble High Court which called the investigation conducted as “botched” and “misdirected” in these words: “…………What clearly stands out from the record of the present case is that the investigation in the case of murder of Shri Haren Pandya has all throughout been botched up and blinkered and has left a lot to be desired. The investigating officers concerned ought to be held accountable for their inaptitude resulting into injustice, huge harassment of many persons concerned and enormous waste of public resources and public time of the Courts.”

The need for this petition arises due to some startling information that has recently come to light, and has been extensively reported by the media regarding Mr. Haren Pandya’s murder, information which was never investigated into by the investigating agency, the CBI. This information along with some earlier revelations about the murder only confirm the apprehensions raised by the High Court of Gujarat in its judgment dated 29th August, 2011 in Criminal Appeal Nos. 975-981/2007, 984-986/2007, 1049/2007 and 1188/2007. The High Court acquitted all the accused and raised serious questions over the investigation carried out in the instant case in these words. Bar and Bench (www.barandbench.com)

INTRODUCTION OF THE PETITIONER

3A. The petitioner is the General Secretary of the Centre for Public Interest Litigation. The applicant organisation is a registered society (S – 14654) formed for the purpose of taking up causes of grave public interest and conducting public interest litigation in an organised manner. Over the years, it has earned a reputation and credibility for its initiatives in public interest litigation. Ms. Kamini Jaiswal, General Secretary of the organization, is authorized to file this petition. The requisite certificate & authority letter are filed along with vakalatnama. Its founder President was Late Shri V.M. Tarkunde and its Executive Committee consists of several senior Advocates. The Petitioner has earlier filed several important public interest petitions including one challenging the allotment of oil and gas dealership through the discretionary quota of the Minister as well as through the Oil Selection Board. The Petitioner had also challenged the transfer of developed oil fields of Panna & Mukta from ONGC to Reliance and Enron. The Petitioner has also successfully challenged the Government’s decision to disinvest and privatise the Government Oil Companies without seeking Parliamentary approval. The Petitioner had also filed a Petition seeking comprehensive administrative guidelines for securing the citizens’ right to information. The Petitioner also filed several other petitions on important issues of public interest like on the health hazards of consumption of Soft Drinks due to the chemical additives present in them. Recently, the Petitioner has successfully filed PILs raising Bar and Bench (www.barandbench.com)

the issue of scam in allotment of 2G spectrum in which Court monitored CBI investigation was directed by this Hon’ble Court. It also successfully challenged the illegal appointment of Mr. P. J. Thomas as the Central Vigilance Commissioner.

The petitioner organisation has no personal interest, or private/oblique motive in filing the instant petition. There is no civil, criminal, revenue or any litigation involving the petitioner organisation, which has or could have a legal nexus with the issues involved in the PIL.

The petitioner has not made any representations to the respondent in this regard because of the extreme urgency of the matter in issue.

The average annual income of the Petitioner for the last three financial years is approximately Rs Nil and PAN number is AAATT9641G.

That the instant writ petition is based on the information/documents which are in public domain.

FACTS OF THE CASE:

Mr. Haren Pandya, a public figure and an ex-home minister of Gujarat, was murdered on 26th March, 2003. The investigation over the first two days was carried out by the Gujarat Police and later handed over to the CBI.

Recently, startling new information has been provided by Mr. Azam Khan, a witness in the trial in encounters of Sohrabuddin Sheikh, his wife Kauser Bi and his associate Tulsiram Prajapati. Although on 21st December, 2018, the special CBI court acquitted all the accused in the case, the judgment noted that the prosecution of the case was highly unsatisfactory.

Mr. Azam Khan was produced as a prosecution witness and during his examination before the trial court on 3rd November, 2018 revealed that Sohrabuddin had told him that a contract to kill Haren Pandya had been given to him Bar and Bench (www.barandbench.com)

by a Gujarat cadre IPS officer DG Vanzara and that Sohrabuddin’s associate Tulsiram Prajapati along with one Naeem and a Shahid Rampuri had murdered Mr. Haren Pandya in pursuance of that contract. DG Vanzara, who had allegedly given the contract, was later made an accused in the fake encounters of Sohrabuddin as well as Tulsiram Prajapati but was discharged by the trial court in 2017. News reports regarding the same were extensively carried by all the major news outlets. A copy of Mr. Azam Khan’s statement dated 03.11.2018 in Session Case no. 177 of 2013 @ 178 of 2013 @ 577 of 2013 @ 312 of 2014 before the court of Spl. Judge, CBI, Greater Mumbai has been annexed herein as Annexure P-1 (Pages_____ to ______). A copy of the report carried out by Indian Express dated 05.11.2018 on the testimony by Mr. Azam Khan has been annexed herein as Annexure P-2 (Pages_____ to ______).

Mr. Azam Khan also revealed that he had given this information to the CBI in 2010 (when an appeal in Mr. Haren Pandya’s murder was pending before the High Court of Gujarat) but the CBI did not pay any heed to this information and told him to keep quiet about it as it would lead to problems for the investigating agency. DG Vanzara himself is reported to have told the CBI that Haren Pandya’s killing was a political one.

Apart from this information from Mr. Azam Khan, a book called ‘Gujarat Files’ was published in 2016 by a journalist Ms. Rana Ayyub wherein she had included certain details of a sting operation conducted by her on the investigating officer from the Gujarat Police in Mr. Haren Pandya’s murder, YA Shaikh, who had started the investigation before the same had been handed over to the CBI. In the book it was revealed that YA Shaikh had told Ms. Ayyub that Mr. Haren Pandya’s murder was a political conspiracy and that the CBI had not conducted any investigation on its own. He also told her that the person accused of shooting Mr. Pandya was already in police custody before the murder as too the eye-witnesss in the case, who was tutored by the Bar and Bench (www.barandbench.com)

CBI in custody. Suspicion of Mr. Pandya’s alleged shooter being in the police custody is only deepened by the fact that the first site map said to be drawn up by the CBI on 29th March, 2003 had the name Asghar Ali’s on it as the shooter although is the CBI story that they knew nothing of this man until much later in April. He had not been arrested until the month of April. The relevant excerpt from the book ‘Gujarat Files’ dated nil has been annexed herein as Annexure P-3 (Pages ____ to ______).

It is further reported in an article published by the internet portal The Wire that DG Vanzara was present at the site of the post-mortem despite having no active role in the investigation (the investigation was being carried out by PW-101, Yasin Sheikh, at the time of the post mortem). It was also discovered that DG Vanzara was at the crime scene when the investigation was going on and his presence was recorded by the photographer assigned by the Gujarat Police to take photographs of the crime scene. An article published on The Wire’s website on 7th November, 2018 has been annexed herein as Annexure P-4 (Pages _____ to ______).

DG Vanzara is himself reported to have told the CBI that Sohrabuddin was involved in Mr. Pandya’s murder and that the murder was a part of a political conspiracy. This news was published by Times of India on 21st September, 2013 and the news article has been annexed herein as Annexure P-5 (Pages____ to _____).

It was always known that the sketch that was prepared on the basis of the description provided by the eye-witness did not match the appearance of alleged shooter, Asghar Ali, who was the shooter prosecuted by the CBI for the murder. However, it has recently been revealed that the sketch that was drawn at that time exactly matches with photographs of Tulsiram Prajapati, who Azam Khan says killed Haren Pandya. The sameness of the sketch with Tulsiram Prajapati was prepared in 2003 and Tulsiram Prajapati’s Bar and Bench (www.barandbench.com)

involvement was first informed to the CBI by Azam Khan in 2010. This lends credence to Azam Khan’s information that it was Tulsiram Prajapati was the actual shooter sent by Sohrabuddin on the contract given by DG Vanzara. An article dated 09.01.2019 published in Wire revealing about the sameness of the sketch with Tulsiram Prajapati has been annexed herein as Annexure P-6 (Pages_____ to _____).

These new pieces information bolsters the apprehensions raised by the High Court of Gujarat regarding the investigation carried out by the CBI, wherein the High Court acquitted all the persons that were prosecuted by the CBI as being responsible for Mr. Pandya’s murder and reprimanded the agency by calling its investigation as “botched” up and “misdirected”.

Apart from the High Court, Mr. Pandya’s own father, Late Mr. Vithalbhai Pandya as well as Mr. Haren Pandya’s wife, Ms. Jagrutiben Pandya, had also raised serious doubts about the manner in which the investigation had been carried out by the CBI and called the murder of his son a political conspiracy. Mr. Vithalbhai Pandya had alleged that the investigating agency had not called several witnesses who could have been instrumental in the investigation including himself as well as Mr. Haren Pandya’s wife. His allegation was that this was done to protect the real political conspiracy behind Mr. Pandya’s murder. They had also petitioned the courts to direct the CBI to investigate other leads and avenues, however, they didn’t have the benefit of the new information that is now available in the public domain. Their applications, filed separately, were dismissed vide orders dated 16.06.2008 and 06.02.2012 respectively. Mr. Pandya’s father had approached this Hon’ble Court also by way of SLP but the same was also dismissed by this Hon’ble Court vide order dated 15.07.2009. As mentioned above, at that point of time, the materials which have recently come into public domain were not available and hence, they were not part of those applications. Copy of Bar and Bench (www.barandbench.com)

Hindu article dated 29.07.2016 is being annexed hereto as Annexure P7 (Pages _____to _____). Newspaper article dated 05.11.2007 published in Countercurrents.ORG covering Mr. Vithalbhai Pandya’s and Ms. Jagrutiben Pandya’s allegations have been annexed herein as Annexure P-8 (Pages_____ to ______). Copy of the order dated 16.06.2008 passed in Criminal Misc. Application no. 15506 of 2007 rejecting prayer for fresh investigation is being annexed hereto as Annexure P-9 (Pages_____ to ______). Copy of the order dated 06.02.2012 passed by the High Court of Gujarat in Special Criminal Application no. 2317 of 2011 rejecting the application filed by Ms. Jagrutiben Pandya has been annexed herein as Annexure P-10 (Pages_____ to ______). A copy of the order dated 15.07.2009 passed by this Hon’ble Court dismissing the Special Leave Petition bearing SLP (Crl.) No. ….2019, CRLMP NO. 9978-9980 preferred by Mr. Vithalbhai Pandya against the High Court’s order has been attached as Annexure P-11 (Pages_____ to ______).

In fact, Mr. Pandya himself, in an interview given to Outlook magazine a few months before he was murdered, expressed apprehensions that he would be killed for speaking out against the Gujarat government of that time. The news article dated 19.11.2007 published in the Outlook magazine has been annexed herein as Annexure P-12 (Pages_____ to ______).

Prosecution’s Case

It was the case of the prosecution that on 26th March, 2003, Mr. Haren Pandya was shot dead in his car as he pulled into the parking lot of an area called Law Gardens in Ahmedabad. The prosecution’s case mainly hinged on a sole eye-witness’ account, which the High Court observed was not trustworthy in material particulars, and POTA confessions of the accused which were retracted later and whose voluntariness and veracity was also doubted by the High Court. Bar and Bench (www.barandbench.com)

The prosecution alleged that as Mr. Haren Pandya was rolling up the window of his car in the parking lot of the Law Gardens, the shooter, one of the accused Asghar Ali, shot him through a small gap from the driver’s side window. The prosecution alleged that the shooter shot Mr. Pandya 5 times although 7 bullet wounds were found on his body.

The sole eye-witness, one Mr. Anil Yadram (PW-55) was alleged to be near the site of the murder as he used to run a food cart near that area and despite the local municipality having cleared all other hawkers from that area a few days before, his cart had not been impounded. Also, peculiarly, despite it being a popular spot for morning walkers, no other eye- witnesses were examined by the prosecution. In fact the prosecution did not even examine other persons as witnesses who were in the vicinity at the purported time of the incident.

It was also claimed by the prosecution that the murder was a result of a conspiracy hatched by some Muslims who sought to avenge the Gujarat riots of 2002 by murdering prominent Hindu leaders in the state. They alleged that the conspiracy had been hatched under the leadership of Mufti Sufiyan, Rasulkhan Party and Sohail Khan and the 12 people prosecuted for the crime had played various roles in the furtherance of the conspiracy to kill Mr. Haren Pandya. It is pertinent to note that none of the masterminds of the alleged conspiracy were ever caught by the CBI. In fact, the alleged masterminds of the conspiracy were able to escape police scrutiny and allegedly travelled to Pakistan, including one Mufti Sufiyan, despite being under police surveillance just days before his alleged escape. In fact, his entire family was able to relocate to Pakistan despite being under the surveillance of the state police.

The Gujarat High Court in its judgment rejected the prosecution’s version and the following findings of the Hon’ble High Court clearly exhibit the attitude of the CBI as well as the Gujarat police in deliberately botching up the investigation: Bar and Bench (www.barandbench.com)

The High Court came to the finding that all the forensic evidence including the medical, scientific as well as ballistic evidence rendered the murder as per prosecution’s story impossible. The number of bullets found in the body of Mr. Haren Pandya did not correspond with the number of bullet wounds on Mr. Pandya’s body. In fact the number of bullet shots suggested the presence of a second assailant. On observing the prosecution’s ham handed attempt at trying to explain the missing two bullets the High Court also stringently remarked that the prosecution’s case seemed like a “possibly well-orchestrated concoction of a story away from the truth of the matter” (Para 15).

Secondly, there were clear signs that the bullets that were recovered from the body of Mr. Pandya were tampered with and were not the same as were examined by the forensic expert. The description of the bullets by the doctors conducting the post mortem was starkly different from that described by the doctor who conducted the forensic analysis.

Thirdly, one of the bullet injuries found on Mr. Pandya’s body was on his scrotum with the bullet movement tracking upwards towards his chest. The forensic experts who examined the evidence concurred that for this injury to be caused the assailant must have shot Mr. Pandya from the front and at a level beneath the scrotum. Also there was hardly any blood found in the car despite Mr. Pandya’s clothes showing profuse bleeding from the body. If he had been shot inside the car, it would be impossible that there would no blood inside the car. Such a finding cast serious doubts as to whether the car was even the site of the offence or not.

The investigation agency also missed out on several important leads which could have led to the uncovering of the actual incident. Mr. Pandya’s mobile phone was recovered from the crime scene. However, no effort was made to recover the call records. In fact, when the CBI received the phone from Bar and Bench (www.barandbench.com)

the Gujarat police, the IO admitted that the mobile phone was unsealed. Further Mr. Pandya’s shoes that he was wearing at the time of the murder disappeared. Even the phone belonging to the alleged shooter went missing from police custody.

Since the prosecution’s story was based on the evidence of PW- 55, the sole eye-witness, a lot hinged on his credibility. However, the High Court found the eye-witness to be unreliable and his testimony to be full of material inconsistencies. Even the sketch of the alleged shooter supposed to have been on the basis of the eye-witness’ description did not match that of the person accused of shooting Haren Pandya.

Therefore, the fact that the sole eye witness’s testimony was unreliable, the confessions were retracted, the injuries on the body as well as other forensic and medical evidence renders the shooting as described by the eye-witness impossible, the absence of any other witnesses who could have placed Mr. Pandya or the assailant at the crime scene and possible manipulation of the evidence on record led the High Court to strongly rebuke the investigation agencies and, in very harsh terms. It would be pertinent hereto mention that apparently Mr. Y.C. Modi, presently the Chief of National Investigating Agency, was heading the investigation indicted by the High Court as “botched and blinkered”. Copy of the judgment dated 29.08.2011 by the Hon’ble High Court in Criminal Appeal no. 975 of 2007 along with other connected appeals is being annexed herein as Annexure P-13 (Pages___ to ______).

GROUNDS This petition deserves to be allowed by this Hon’ble court on the following grounds:

Because the Petitioner is approaching this Hon’ble Court for enforcement of Rule of Law guaranteed under Articles 14 and 21 of the Constitution. This Hon’ble Court has time and again held that the common public has an inherent Bar and Bench (www.barandbench.com)

interest in prosecution of persons who commit criminal offences. Therefore, this writ petition is being filed in the collective interest of the public towards ensuring that the criminal justice system works in a non-partisan manner and a fresh investigation is carried out fairly to bring to book the real culprits in the murder of Shri Haren Pandya, a public figure and an ex home minister of the State of Gujarat, who was murdered in 2003 and subsequently the persons accused of the murder were acquitted by the Hon’ble High Court which called the investigation conducted as “botched” and “misdirected” in these words: “…………What clearly stands out from the record of the present case is that the investigation in the case of murder of Shri Haren Pandya has all throughout been botched up and blinkered and has left a lot to be desired. The investigating officers concerned ought to be held accountable for their inaptitude resulting into injustice, huge harassment of many persons concerned and enormous waste of public resources and public time of the Courts.”

Because public disquiet has been unabated regarding the highly unsatisfactory way in which investigation has been carried out into the murder of a popular BJP leader who was also the former Home and Revenue Minister of the State. There may be possibly a shielding of high place officials. Aside from existing doubts that have been from the beginning of the investigation, fresh developments make this petition imperative.

Because the need for this petition arises due to some startling information that has recently come to light, and has been extensively reported by the media regarding Mr. Haren Pandya’s murder, information which was never investigated into by the investigating agency, the CBI. This information along with some earlier revelations about the murder only confirm the apprehensions raised by the High Court of Gujarat in its judgment dated 29th August, 2011 in Criminal Appeal Nos. 975-981/2007, 984-986/2007, 1049/2007 and 1188/2007. The High Court acquitted all Bar and Bench (www.barandbench.com)

the accused and raised serious questions over the investigation carried out in the instant case in these words.

Because the pendency of an appeal before this Hon’ble Court against the Gujarat High Court’s judgment acquitting all the accused is only on the merits of the impugned judgment (which has raised substantial questions) and does not concern itself with the question of the need to re-investigate the matter especially after the recent revelations which indicate that the investigating agency, rather mischievously, failed to look into credible leads regarding the murder.

Because this Hon’ble Court has time and again stressed upon the absolute necessity of “fair and proper investigation” in criminal cases. In Vinay Tyagi vs Irshad Ali (2013) 5 SCC 762, this Court held that fair and proper investigation encompasses two imperatives; firstly the investigation must be unbiased, honest, just and in accordance with law and secondly, the entire emphasis has to be to bring out the truth of the case before the competent jurisdiction.

Further expounding on the above principle this Hon’ble Court in Manohar Lal Sharma vs Principal Secretary & Ors. (2014) 2 SCC 532, observed that the aim of the investigation is ultimately to search for the truth and bring the offender to the book.

Because in the instant case, it is apparent that the investigating agencies have not just failed but have deliberately mishandled the investigation to hide the truth and protect the real culprits behind the murder of Mr. Haren Pandya.

Because under Para 6.11.5, Chapter VI of the CBI Manual, it is prescribed that in cases where strictures against the agency are passed by any court, the same matter must be put before the Director as well as the Joint Director of the CBI for special consideration. However, in the instant case no such steps have been taken by the investigative agency once strictures had been passed against it by the High Court of Gujarat. Further under Para 8.22 of the Chapter Bar and Bench (www.barandbench.com)

VIII of the CBI Manual, the CBI is required to take notice of any press reports regarding allegations related to a significant matter in the media. However, it appears that the CBI has failed to take note of any recent developments regarding the botched up investigation in Haren Pandya’s murder carried out by the agency.

Because under Para 23.20 of the CBI Manual it has also been mandated that in cases involving elected representatives which results in acquittal a reference should be made to the Attorney General or one of his nominees to determine whether the acquittal was a result of flaws in the investigation or prosecution and suitably, the responsibility should be fixed on the concerned officer. However, in the instant case, despite the High Court passing strictures against the agency, no such action was taken against any of its officers, either the ones involved in investigation or prosecution.

Because the new pieces of information that have come to light regarding the possibility of IPS officers including DG Vanzara being involved in the conspiracy to kill Mr. Haren Pandya clearly show that the involvement of the senior functionaries of the police as well as possible complicity of political figures. The investigation has clearly been “botched” to benefit powerful figures in the administration.

Because Azam Khan’s testimony also reveals that he had already provided this information to the CBI almost 8 years back, but the CBI failed to act on this information and re- investigate in light of such a revelation. This proves that the agency was not interested in reaching the truth of the matter and in fact was working actively to conceal the truth.

Because Mr. Haren Pandya’s wife and father had already raised doubts about the investigation being carried out and claimed that Mr. Pandya’s murder was a political conspiracy. They had even petitioned the court for reinvestigation. Their petitions were dismissed. However, at Bar and Bench (www.barandbench.com)

that time they did not have the benefit of the information that is available now regarding the circumstances surrounding Mr. Pandya’s death.

Because Mr. Haren Pandya had himself expressed apprehensions that he could be killed due to his stand taken against rival politicians. In fact, this apprehension was not misplaced as was verified by DG Vanzara’s claim to the CBI as well as YA Shaikh’s admission that the murder was a political conspiracy.

Because the High Court of Gujarat has clearly expressed its misgivings about the bonafides of the investigating agency in no unclear terms. The High Court has not only called the investigation as “botched” and “misdirected” but has also condemned the conduct of the officers involved in the investigation and even went to the extent of calling for holding them accountable as their inaptitude led to denial of justice.

Because the conduct of the investigating agency in the instant case forms a fit ground for ordering of a reinvestigation. This Hon’ble Court in Zahira Habibullah Sheikh & Anr. vs State of Gujarat & Ors. (2004) 4 SCC 158 observed discernible deficiency in investigation and ordered a reinvestigation holding that:

“Courts have to ensure that accused persons are punished and that the might or authority of the State are not used to shield themselves or their men. It should be ensured that they do not wield such powers which under the Constitution has to be held only in trust for the public and society at large. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies, Courts have to deal with the same with an iron hand appropriately within the framework of law.”

Because the common public has an inherent interest in a fair investigation and this Hon’ble Court has held that apart Bar and Bench (www.barandbench.com)

from the accused and the victim a fair investigation is necessary to ensure that the common public’s faith and trust in the criminal justice system is maintained. In Ram Bihari Yadav Ram Bihari Yadav v. State of Bihar and Ors. (1998) 4 SCC 517, this Court held that if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice in the hands of Courts.

Because this Hon’ble Court in Pooja Pal vs Union of India (2016) 3 SCC 135, noted the observations made in Zahira Habibullah Sheikh as follows:

“This Court observed that the interests of the society are not to be treated completely with disdain and as persona non grata. It was remarked as well due administration of justice is always viewed as a continuous process, not confined to the determination of a particular case so much so that a court must cease to be a mute spectator and a mere recording machine but become a participant in the trial evincing intelligence and active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth and administer justice with fairness and impartiality both to the parties and to the community.”

In the instant case, in light of the botched up investigation as well as the recent information that has come to light, it has become extremely imperative that this Hon’ble Court directs a reinvestigation into the death of Mr. Haren Pandya. The noticeable lapses in the investigation as well as a clear and transparent attempt to save the real culprits involved in this murder, that too of not just an ordinary man but a former Home Minister of a State, have already shaken the public’s belief in the operation of the criminal justice system. In such circumstances, this Hon’ble Court must seek to establish the truth so that the belief in the justice system is reinstated. Bar and Bench (www.barandbench.com)

The Petitioner submits that no other writ petition or any other proceeding has been filed by the Petitioner in this Hon’ble Court or any other court claiming similar relief.

PRAYER

It is, therefore, most respectfully prayed that the Hon’ble Court may kindly be pleased to-

A) Issue a writ of mandamus or an appropriate writ, direction or order directing the Respondents to: a) produce the statement dated 2010 of DG Vanzara to the CBI; and/or, b) Direct an inquiry into the circumstances in which an identity sketch of the assassin drawn on 27/3/2003 which matches Tulsiram Prajapati more than the accused put on trial and the nature of investigation done thereupon; and/or, c) Issue a writ, order or direction in the nature of mandamus or other appropriate writ order or direction for fresh- investigation of the murder of Shri Haren Pandya under the supervision of this Hon’ble Court; and/or, d) Order an inquiry against the officers who conducted the earlier investigation and hold the errant officials accountable for the botched up investigation; and/or,

Pass any other just and reasonable order or orders which thus Hon’ble Court deems fit and necessary to meet the ends of justice in the facts and circumstances of the present case.

AND FOR THIS ACT OF KINDNESS, THE PETITIONER ABOVE NAMED, AS IN DUTYBOUND SHALL EVER PRAY

PETITIONER

THROUGH: PRASHANT BHUSHAN Bar and Bench (www.barandbench.com)

COUNSEL FOR THE PETITIONER

DRAWN BY: ROHIT KUMAR SINGH DRAWN ON: 19.01.2019

FILED ON: 21.01.2019 NEW DELHI Bar and Bench (www.barandbench.com)

IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. ______OF 2019

IN THE MATTER OF:

CENTRE FOR PUBLIC INTEREST LITIGATION PETITIONER

VERSUS.

UNION OF INDIA & ANR. RESPONDENTS

AFFIDAVIT

I, Kamini Jaiswal, D/o Late Shri R.S. Jaiswal, Office at Chamber No. 43, Lawyers Chamber, Supreme Court, New Delhi, hereby solemnly affirm and declare as under:

1. That I am the General Secretary of the Petitioner Society in the aforementioned writ petition, and being familiar with the facts and circumstances of the case, I am competent and authorized to swear this Affidavit on behalf of both the Petitioners. Petitioner no. 1 is a Registered S Society (No. S-14654) that was founded in ______. I am authorized by the Rules and Regulations of the registered society to institute petitions on behalf of the petitioner.

2. That I have read the contents of the accompanying Synopsis & List of Dates (Page _____ to _____), the Writ Petition (Page ______to ______) and Application for Interim Relief (Page ______to ______) and state that the same are true to my belief and knowledge.

3. The petitioners have no personal interest in the litigation and neither myself nor anybody in whom the petitioners is interested would in any manner benefit from the relief sought in the present litigation save as a member of the general public. This petition is not motivated by self- gain or gain of any person, institution, body and there is no motive other than that of public interest in filing this petition. Bar and Bench (www.barandbench.com)

4. This petition is based on information received from documents available on Government websites, records and documents from RTI & other sources, and newspaper reports.

5. That the annexures are true copies of their respective originals.

6. I have done whatever inquiry/investigation that was in my power to do, and collected all data/material which was available and which was relevant for this court to entertain the present petition. I further confirm that I have not concealed in the present petition any data/material/information which may have enabled this court to form an opinion whether to entertain this petition or not and/or whether to grant any relief or not.

DEPONENT VERIFICATION: I, the above named Deponent, do hereby verify that the contents of the above Affidavit are true and correct to my knowledge; that no part of it is false and that nothing material has been concealed therefrom. Verified at New Delhi on this 21st day of January 2019.

DEPONENT