Judgment Jayant Patel, J.—Rule. All Learned Counsel for the respective parties are heard for final disposal. 2. As in these matters, common question arises for review of the judgment and order dated 12.08.2010 passed by this Court in Criminal Miscellaneous Application No. 10625 of 2009 and allied matters, they are being considered and decided by common order. 3. Criminal Miscellaneous Application No. 9832 of 2010 has been preferred by Mr. Gopinath Pillai, father of Mr. Praneshkumar Pillai, who lost his life in the police encounter. The said Mr. Gopinath Pillai was the petitioner of Special Criminal Application No. 1850 of 2009 which has been disposed by the above referred judgment. By means of the present application, the prayer is made to review the judgment and order dated 12.08.2010 and to recall the directions transferring the investigation to the Special Investigation Team constituted by the Apex Court (for the sake of convenience shall be referred as “SIT for Riot cases”) and the prayer is made to transfer the investigation to Central Bureau of Investigation (“CBI” for short), as prayed in Special Criminal Application No. 1850 of 2009. 4. Criminal Miscellaneous Application No. 10621 of 2010 arises on account of letter addressed by SIT for Riot cases and the prayer is made in the said letter to recall and review the order passed by this Court to the extent of assignment of investigation in the present case to the said SIT for Riot cases. 5. We have heard Mr. Mukul Sinha, learned Advocate with Mr. Amresh N. Patel, for the Applicant of Criminal Misc. Application No. 9832 of 2010. On behalf of the SIT, none has appeared, apart from sending the said letter. We have heard Ms. Vrinda Grover for Ms. Shamima Kauser, who was petitioner of Special Criminal Application No. 822 of 2004. We have also heard Mr. Kamal Trivedi, learned Advocate General with Mr. J.M. Panchal, learned Special Public Prosecutor, for the State of Gujarat, Mr. P.S.Champaneri, learned Assistant Solicitor General of the Union for India, Mr. Y.N. Ravani, learned Standing Counsel for CBI and Mr. Nirupam Nanavati, learned Senior Advocate for Police Officer Mr. Singhal. 6. As such, the review application preferred by Mr. Gopinath Pillai, being Criminal Misc. J.M. Panchal, learned Special Public Prosecutor, for the State of Gujarat, Mr. P.S.Champaneri, learned Assistant Solicitor General of the Union for India, Mr. Y.N. Ravani, learned Standing Counsel for CBI and Mr. Nirupam Nanavati, learned Senior Advocate for Police Officer Mr. Singhal. 6. As such, the review application preferred by Mr. Gopinath Pillai, being Criminal Misc. Application No. 9832 of 2010 is on two grounds; one is that the matter did call for the investigation to be made by CBI and this Court did not properly consider the contentions as were raised on behalf of the petitioner of Special Criminal Application No. 1850 of 2009 for granting the prayer for investigation to be made by CBI. Therefore, Learned Counsel Mr. Mukul Sinha made an attempt to contend that such observations made for declining the prayer for investigation by CBI be recalled and this Court may assign the investigation to CBI, as prayed in the main petition which has been disposed of by the aforesaid judgment. 7. In our view, if such a contention is entertained, it would result into sitting in appeal over the said decision which can neither be conceived nor can be entertained in review jurisdiction. Therefore, the said ground cannot be treated as a valid ground for review and recalling of the order to the extent of entrustment of investigation to CBI, which has been expressly negatived by this Court for the reasons stated in the judgment. Hence, if the application for review of the said judgment is only on such ground, the matter would not have called for review and recalling of the order. 8. However, the second ground for review and recalling of the order for constitution of SIT and to assign the investigation to the SIT for Riot cases, may call for consideration. The said ground would get strengthened by the inability expressed by the SIT for Riot cases itself, as reflected from its letter dated 30.08.2010, on the basis of which the proceedings of Criminal Misc. Application No. 10621 of 2010 have been initiated. 9. The said ground would get strengthened by the inability expressed by the SIT for Riot cases itself, as reflected from its letter dated 30.08.2010, on the basis of which the proceedings of Criminal Misc. Application No. 10621 of 2010 have been initiated. 9. The situation, as it emerges from the record, is that on the date when this Court passed the judgment and the order on 12.08.2010, this Court had assigned the work for investigation of the present case to the members of the SIT constituted by the Apex Court because they were already functioning in the State with all infrastructure available with them, for investigation of crimes, may be of specified cases marked to that SIT by the Apex Court. But, it appears that if the very SIT for Riot cases is unable to take up the investigation, the consequences may arise that either no result may come out for which the directions have been issued by this Court or in the alternative, it would not serve any purpose whatsoever. In normal circumstances, when this Court has exercised power under Article 226 of the Constitution, the provisions of CPC for review of an order would not automatically apply but the principles analogous to the provisions of CPC can be made applicable to the proceedings of this Court under Article 226 of the Constitution. Further, if any situation has emerged on account of any unwillingness shown by the SIT for Riot cases to take up the investigation as ordered by this Court, the same can be considered as a valid ground for review and/or recalling the order to the extent of constitution of the said SIT. It appears to us that considering the facts and circumstances, and more particularly, in view of the contents of the letter dated 30.08.2010 addressed by SIT for Riot cases, coupled with the observations made by the Apex Court in the proceedings of Special Leave to Appeal (Crl.) No. 7132 of 2010 vide order dated 06.09.2010, there would be valid ground for review and recalling of the order to the extent of constitution of a new SIT. At this stage, we may refer to the observations made by the Apex Court in the above referred order, the relevant extract of which reads as under:— “....In the meanwhile, the High Court shall be at liberty to consider the application stated to have been filed on behalf of SIT expressing its inability to undertake the investigation in terms of the directions issued by the High Court. The High Court shall also be at liberty to pass an appropriate order constituting a proper agency for investigation of the crime in question.” 10. Under these circumstances, we find that inability expressed by the SIT constituted by the Apex Court to undertake the investigation in the present case could be termed as a valid ground for review and to recall the order for assigning the investigation of the present case to that SIT for Riot cases. 11. The aforesaid would lead us to consider the question for constituting another SIT. In order to consider the aforesaid aspects, we may refer to the relevant observations of this Court made in Paragraph-74 of the above referred Judgment about the SIT which deserves to be constituted, the relevant portion of which reads as under: “Therefore, we find that if a broad based SIT is constituted, which would be in a position to investigate into the incident by collecting data from various States, which are concerned and through the Police of various States, it would be not only more convenient, but would be more practicable and would help to trace the truth for the alleged incident.” ... ... ... “Under these circumstances, we find that it would be just and proper to include the officers from outside the State as well as one, who was or is holding very high position in the Central Bureau of Investigation.” 12. ... ... “Under these circumstances, we find that it would be just and proper to include the officers from outside the State as well as one, who was or is holding very high position in the Central Bureau of Investigation.” 12. It may also be observed that at Paragraph-75, it was interalia observed as under: “....We may observe that when the Apex Court in such highly sensitive matters in the riot cases in the State of Gujarat, which include the Police Officers of the State, has found it proper to assign the work of investigation to the aforesaid SIT, the same team can be entrusted the work of the investigation of the present case and such would instill confidence and credibility to the investigation to do complete justice to the parties and thereby protecting the fundamental rights of the citizens.” 13. Keeping the aforesaid observations in mind, if a broad-based SIT is constituted, it would serve the purpose and would be in furtherance of the cause for which the investigation is so ordered by this Court. 14. In order to consider the officers who can be included in SIT, we had called for the names from the Applicant Mr. Pillai, State of Gujarat, as well as the Union of India, through their respective counsel and we had also given opportunity to Ms. Shamima Kauser, petitioner of Special Criminal Application No. 1850 of 2009. 15. We have considered the names of the police officers tendered by the respective parties and their seniority as per their date of joining in the IPS cadre. It appears to us that the constitution of SIT has to be such that the officer/s so nominated by the Union of India should be above the officer/s of the State Government and higher in seniority. Therefore, we find that one officer can be nominated from amongst the names submitted on behalf of the Union of India, one officer can be included from amongst the names given by the State Government and one officer can be included from the names given by the Applicant – Mr. Gopinath Pillai. 16. We may record that on behalf of Ms. Shamima Kauser, when the learned Counsel Ms. Grover had appeared, it was declared on behalf of Ms. Gopinath Pillai. 16. We may record that on behalf of Ms. Shamima Kauser, when the learned Counsel Ms. Grover had appeared, it was declared on behalf of Ms. Kauser that she is not in a position to give the name of any officer since the insistence on her part is to have the investigation of the case through CBI only and none else. We may also record that on behalf of the State Government, names were given reserving their all rights and contentions in the SLP pending before the Apex Court. 17. After the aforesaid exercise was completed but before this Court proceeded to pass the order for constitution of new SIT by including the names of the officers which this Court may find proper, the learned Advocate General pressed into service, the affidavit dated 20th September, 2010, filed by Mr. Rahul Gupta, Deputy Secretary of the Home Department, contending that the State Government has issued a Notification dated 16.09.2010 for constitution of Monitoring Authority and Special Task Force for investigation of the police encounter deaths and it was also submitted that the Chairman of the Monitoring Authority may be a retired Honourable Judge of the Supreme Court of India or a retired Honourable Judge of the High Court of Gujarat. 18. It may also be recorded that in Paragraph-8 of the affidavit, it has been stated on behalf of the State Government as under:— “8. I respectfully say and submit that under the circumstances, while respectfully reserving my liberty to press for the reliefs prayed for in the Special Criminal Application filed by the State of Gujarat and reiterating the prayer that in view of the changed circumstances, that is to say, SIT of riot cases having expressed its inability, this Honourable Court may be pleased to permit the Special Investigation Team, constituted by this Honourable Court earlier, to complete the investigation under the monitoring authority, as contemplated vide notification dated 16/9/2010 or the investigation in question may be ordered to be completed by the Special Task Force contemplated vide same notification dated 16/9/2010 under the monitoring of the said Monitoring Authority. In the respectful submission of the State, the said course of action would not only instill confidence and credibility in the investigation, but would result into a complete justice to all the parties rather than constituting an agency having officers of different police forces since such a course of action has an inbuilt risk of inevitable confusion in the investigation for various reasons.” 19. When the learned Advocate General Mr. Trivedi was called upon to clarify the stand of the State Government on the aspects of constitution of new SIT by this Court, it was declared by the learned Advocate General that the attempt on the part of the State Government is by way of a suggestion that the investigation may be assigned to the Special Task Force who is to work under the Monitoring Authority instead of new SIT comprising of the other officers who, in the submission of the learned Advocate General, could be officers from outside Gujarat State. It was submitted that there is no attempt on the part of the State to nullify the effect of the judgment of this Court but the Notification for constitution of Special Task Force may be considered as one of the options available to the Court instead of constituting a new SIT. He also submitted that prior to the Notification dated 16th September, 2010, for constitution of Special Task Force and Monitoring Authority, the Government has already given the names of the officers reserving its rights and contentions in the SLP pending before the Apex Court. Therefore, it was submitted that the said aspects may be considered before passing further order. 20. It is hardly required to be stated that a judgment or order of the High Court in exercise of the power under Article 226 of the Constitution cannot be nullified by any executive action of the Government, be it a policy matter or constitution of a Special Task Force or the constitution of the Monitoring Authority, or otherwise. Therefore, once this Court having recorded the findings for constitution of a SIT having a particular character and composition, such decision on the part of the State can hardly be considered as a valid ground to recall the observations made for constitution of SIT, thereby instilling confidence and credibility to the investigation. Under these circumstances, based on the Notification, such suggestion cannot be accepted. Under these circumstances, based on the Notification, such suggestion cannot be accepted. Further, when this Court has already ruled for inclusion of certain officers in the SIT, unwillingness on the part of the State for induction of any officer of IPS cadre from outside the State can neither be countenanced nor endorsed. We may record that the Constitution provides the competence of any State or the Union or any constitutional authority, including the judiciary, for protection of the rights of citizens and controls the exercise of power by any executive. In a Federal structure which prevails in our nation, once this Court has exercised the power under Article 226 of the Constitution, and has ruled for assigning the investigation to a broad-based SIT, such reservations expressed on behalf of the State cannot be countenanced by this Court. The aforesaid is coupled with the circumstance that State has not filed any review application for recalling of the order. Further, even if the State, for the reasons best known to it, is desirous of constituting the Special Task Force or a Monitoring Authority, it may be made applicable to other cases, namely, encounter cases other than the one considered and examined by this Court in exercise of the power under Article 226 of the Constitution. Further, if such aspect is considered, it may also indirectly dilute the observations made by this Court in the judgment and also by the Apex Court, permitting the High Court to constitute a new SIT. Hence, we find that such ground should not operate as a bar or by way of a second thought for non-constitution of the SIT and the assignment of investigation to it. 21. Having considered the above, and after taking into consideration the names of the officers given by different parties, we find that the new SIT for the present case shall comprise of the following officers:— 1. Shri Karnail Singh – IPS 1984 Batch – One of the officers nominated by the Union of India out of the list of 5 officers. 2. Shri Mohan Jha – IPS 1985 Batch – at present posted in Gujarat State – Nominated as one of the officers by the Gujarat State out of list of 11 officers. 3. Shri Karnail Singh – IPS 1984 Batch – One of the officers nominated by the Union of India out of the list of 5 officers. 2. Shri Mohan Jha – IPS 1985 Batch – at present posted in Gujarat State – Nominated as one of the officers by the Gujarat State out of list of 11 officers. 3. Shri Satish Varma – IPS 1986 Batch – posted in Gujarat State – one of the officers nominated from the list of 4 officers given on behalf of the Applicant - Shri Gopinath Pillai. 22. The State Government is directed to issue necessary orders, including Notification, in this regard, within a period of two weeks from the date of receipt of the order. 23. The investigation of I-C.R.No.8/2004 dated 15.06.2004 registered with DCB Police Station, Ahmedabad City, shall be transferred to the SIT constituted by this order. It is further observed that the said SIT shall be at liberty to take all steps in accordance with law for investigation transferred to it and it shall also have power to take action in furtherance thereof, in accordance with law. The State shall provide necessary infrastructure to the said SIT. 24. It is further observed and clarified that the SIT so constituted by the present order shall not take any assistance, directly or indirectly, of the officers of any rank of the State Police, if they are involved directly or indirectly in connection with the present incident of encounter, which is to be investigated by them. 25. The other directions for investigation and submission of the report issued vide judgment and order dated 12.08.2010 shall remain the same. 26. The lists of names suggested by all the parties given in writing be kept in a sealed cover and the same be retained by the Registrar General in safe custody. 27. The applications are partly-allowed in terms of the aforesaid directions. The judgment and order dated 12.08.2010 shall stand modified to the above extent. Rule is made absolute to the above extent.