Procedural Facet of Supreme Court Decision in Gulberg Society Case

Procedural law, as generally considered, is the core of the judicial system. The whole purpose of substantive law will be ridiculed, if there does not exist its procedural aspect. The recent decision of Supreme Court in the case of Jakia Nasim Ehsan v. State of Gujarat with regard to the extermination of former Member of Parliament, Ehsan Jafri, who was burnt alive in his own house by a group of members, at a time when the state of Gujarat was facing enormous communal violence. In this case, Supreme Court rejected to scrutinise the matter once submission of the final report of the Special Investigation Team, which was formed to investigate the matter. It is significant here to note the reasons behind the rejection of Supreme Court in doing so. Section 173 (1) of the Code of Criminal Procedure states every investigation under this Chapter shall be completed without unnecessary delay. Thus, a competent authority concludes its investigation under this section.

SIT, deriving power from this particular section finished off its investigation and submitted its report to the Supreme Court in the month of July 2011. Even this procedural aspect is divided into two stages. One, whether Supreme Court should direct or not the matter to the competent or, and secondly whether it should supervise the further process which ought to be carried out by the competent. Supreme Court in both the issues decided that it should not indulge into the matter once the final report is submitted by the concerned investigating agency.

The report was filed before the a criminal court, and this criminal court derives its power by virtue of Section 173 (3) of CrPC to take the cognizance of the matter after the completion of the investigation. Supreme Court deciding this affirmatively stated, while relying on its earlier decision in the case of M.C. Mehta (Taj Corridor Scam) Vs. Union of India & Ors. (2007) 1 SCC 110, that –

“The jurisdiction of the Court to issue a writ of continuous mandamus is only to see that proper investigation is carried out. Once the Court satisfies itself that a proper investigation has been carried out, it would not venture to take over the functions of the Magistrate or pass any order which would interfere with his judicial functions. Constitutional scheme of this country envisages dispute resolution mechanism by an independent and impartial tribunal. No authority, save and except a superior court in the hierarchy of judiciary, can issue any direction which otherwise takes away the discretionary jurisdiction of any court of law. Once a final report has been filed in terms of sub-section (1) of Section 173 of the Code of Criminal Procedure, it is the Magistrate and Magistrate alone who can take appropriate decision in the matter one way or the other. If he errs while passing a judicial order, the same may be a subject-matter of appeal or judicial review. There may be a possibility of the prosecuting agencies not approaching the higher forum against an order passed by the learned Magistrate, but the same by itself would not confer a jurisdiction on this Court to step in.”

Bhagwant Singh Vs. Commissioner of Police & Anr. (1985) 2 SCC 537,

“Where the Magistrate to whom a report is forwarded under Section 173(2)(i) of the Code, decides not to take cognizance of the offence and to drop the proceedings or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the FIR, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.”

Further, it was held by the Supreme Court in the case of Union of India & Ors. Vs. Sushil Kumar Modi & Ors. (1998) 8 SCC 661, wherein, relying on the decision in Vineet Narain & Ors. Vs. Union of India & Anr. (1996) 2 SCC 199

"...that once a charge-sheet is filed in the competent court after completion of the investigation, the process of monitoring by this Court for the purpose of making the CBI and other investigative agencies concerned perform their function of investigating into the offences concerned comes to an end; and thereafter it is only the court in which the charge-sheet is filed which is to deal with all matters relating to the trial of the accused, including matters falling within the scope of Section 173(8) of the Code of Criminal Procedure. We make this observation only to reiterate this clear position in law so that no doubts in any quarter may survive."

Supreme Court does not, under its jurisdiction, act as a trail court and does not look into the facts of the case as trail court does. Further, Supreme Court held that the matter should be directed to the competent court which is empowered to discharge its duty by proceeding with the matter. Concerning second issue, Supreme Court held, while relying on the case of M.C. Mehta and Narmada Bai Vs. State of Gujarat & Ors. (2011) 5 SCC 79 that,

“The above decisions make it clear that though this Court is competent to entrust the investigation to any independent agency, once the investigating agency complete their function of investigating into the offences, it is the court in which the charge-sheet is filed which is to deal with all matters relating to the trial of the accused including matters falling within the scope of Section 173(8) of the Code. Thus, generally, this Court may not require further monitoring of the case/investigation. However, we make it clear that if any of the parties including CBI require any further direction, they are free to approach this Court by way of an application."

Hence, it is clear from this case that Supreme does not take cognizance in the matter where an investigation submits its final report. Instead, it forwards the matter to the competent, and further it does not interfere.