JUDGMENT : J.B. Pardiwala, J. 1. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs: "5(A) Directing the respondent to pay to the petitioner Rs. 50 Lacs or any other appropriate amount deemed fit, towards compensation against killing of his son Sadik Jamal in a fake encounter on 13-1-2003 by the officers of Crime Branch. (B) Any other relief deemed fit to meet the ends of justice may be granted." 2. The case of the writ applicant may be summarised as under: 2.1 It is the case of the writ applicant that his son by name 'Sadik' aged 25 was killed by the officers of the D.C.B. on 13th January 2003 in a fake encounter. In such circumstances, he claims compensation to the tune of Rupees Fifty Lac from the State Government. 2.2 It appears from the materials on record that on 13th January 2003, a First Information Report came to be registered with the Crime Branch Police Station, Ahmedabad city against the deceased son of the writ applicant and seven others for the offence punishable under Sections 120-B, 121-A, 122, 123, 307, 353, 186 and 224 of the Indian Penal Code and Section 135(1) of the Bombay Police Act. The F.I.R. reads as under: "DATED : 13-1-2003 I, Jaisinh Gulabsinh Parmar, Police Inspector, Crime Branch, Ahmedabad City, do hereby state in person my complaint as under: That I am performing my duty at Crime Branch at Ahmedabad City since 11-6-2002. That after partition of India in 1947, two nations viz. India and Pakistan came into existence. Pakistan was created on the basis of religious fundamentalism whereas India after independence remained to be a secular state. In order to grab Jammu and Kashmir, Pakistan fought 3 wars against India. The last insurgency was made in Kargil, in consequence of which the Kargil war took place which was again the continuation off warring tendency of Pakistan. However, the Pakistan has always faced defeat in all its open war against India. Lastly in the year 1971 the Pakistan had to face disastrous defeat in the Bangladesh war. The last insurgency was made in Kargil, in consequence of which the Kargil war took place which was again the continuation off warring tendency of Pakistan. However, the Pakistan has always faced defeat in all its open war against India. Lastly in the year 1971 the Pakistan had to face disastrous defeat in the Bangladesh war. As a result of continuous defeat the Pakistan instead of fighting open war against India, is now since last two decades fighting less expensive proxy war of low intensity by enforcing the cross border terrorism and thereby creating a situation compelling India to hand over Jammu and Kashmir to the Pakistan. By proxy war now Pakistan is attempting to disrupt the unity and integrity of India. This proxy war is managed by the infamous spying secret agency of Pakistan viz. I.S.I., which is spreading Islamic fundamentalism Islamic and managing Jehadi organizations like Lashker-E-Toiba, Jaish-E-Mohmad AND Al-Quade by providing training and organizing the jehadi cadre and providing them arms, ammunitions and explosive materials to be smuggled in India for the purpose of killing innocent people and carrying out subversive attacks. It is note that only jehadi organizations are used for carrying out terrorist activities in India. There are various mafias and the gangsters of the underworld operating in India, Pakistan and Gulf countries having centres in the cities like Mumbai, Karachi, Dubai, Kuwait etc. and they are closely associated with ISI at whose behest they are active in India for carrying out terrorist attacks. Lastly in Gujarat after the Godhra carnage followed by large scale riots and arson as its consequence the ISI and other jehadi organizations of Pakistan, in association with the mafia gangsters of the underworld and the local notorious gangs, taking advantage of the situation arising from the riots, had targeted Gujarat for their terrorist activities. This fact is clearly establish by the various incidents of terrorism in the recent past-such as the terrorist attack on Akshar Dham, conspiracy to kill the Chief Minister of Gujarat Shri Narendrabhai Modi and Shri Pravinbhai Togadiya of the VHP by the local terrorist of Lashker-E-Toiba in Ahmedabad viz. Sahid Bakshi and other terrorists arrested by the Delhi police, the terrorist of Jaish-E-Mohmad viz. Samirkhan Pathan, the network in the neighboring states of Gujarat and the incident of gruesome firing on Dr. Jaideep Patel, the leader of VHP. Sahid Bakshi and other terrorists arrested by the Delhi police, the terrorist of Jaish-E-Mohmad viz. Samirkhan Pathan, the network in the neighboring states of Gujarat and the incident of gruesome firing on Dr. Jaideep Patel, the leader of VHP. Time and again information in this regard is received from the intelligence inputs of Central agency and other reliable sources that the main targets behind the terrorist attacks are the Chief Minister of Gujarat Shri Narendrabhai Modi, International General Secretary of VHP Shri Dr. Pravinbhai Togadiya and the Deputy Prime Minister of India Shri L.K. Advani. While the assembly election of Gujarat where about to be announced, at that time a specific intelligence input through Central Agency was received by the Police Commissioner of Ahmedabad about which the Joint Police Commissioner of the Crime Branch and the Deputy Police Commissioner had briefed me and had explained me its seriousness. This information was developed confidentially and secretly and its investigation and further legal proceedings were entrusted to me. Looking to the seriousness of the intelligence inputs I had activated my private and strictly confidential informants in Ahmedabad, Bhavnagar and Mumbai very secretly. On the basis of piece-meal information received, the following startling and dangerous facts emerged. That Sadik Jamal Mehter who was residing in Dubai was originally the resident of Bhavnagar and had gone to Mumbai where he came in contact with the criminals of the underworld and then had gone to Dubai where he was staying with Tarik Parvin who was originally resident of Mumbai. This Tarik Parvin was closely associated with Dawood Ibrahim gang at Karachi in Pakistan. Anish Ibrahim and Salim Chiplun, who was a close confident of Chota Shakil, both used to visit Sadik Jamal at his residence in Dubai. Thus, Sadik Jamal Mahter came in contact with Salim Chiplun in Dubai. Meanwhile he had seen on Television Channels the news regarding incidents of communal violence in Gujarat that had erupted after Godhra Carnage. On seeing such programmes Sadik Jamal was furious and had made up his mind to kill the Chief Minister of Gujarat Shri Narendrabhai Modi and Shri Pravinbhai Togadiya of VHP and other persons. Taking advantage of the mental status of Sadik, Tarik Parvin and Salim Chiplun introduced Sadik to a local Maulana who was associated with ISI organization of Pakistan. On seeing such programmes Sadik Jamal was furious and had made up his mind to kill the Chief Minister of Gujarat Shri Narendrabhai Modi and Shri Pravinbhai Togadiya of VHP and other persons. Taking advantage of the mental status of Sadik, Tarik Parvin and Salim Chiplun introduced Sadik to a local Maulana who was associated with ISI organization of Pakistan. This Maulana used to hold frequent meetings with Sadik at the residence of Tarik Parvin and by invoking religious extremisms in Sadik, the Maulana made him a hard core jehadi and ultimately made him terrorist of Lashker-E-Toiba. Meanwhile there was possibility of early assembly election in Gujarat and therefore the Chief Minister and other dignitaries were very busy with the election campaigns. They were found to be easy targets to kill and therefore, in the month of October 2002 before Ramjan Sadik was sent back to Mumbai. After returning to India Sadik used to travel frequently between Mumbai, Bhavnagar, Ahmedabad and Delhi in order to give final shape to his assignment. He was determined and had taken oath to eliminate Shri Narendrabhai Modi and Shri Pravin Togadiya who were on the hit list of ISI and Lashker-E-Toiba. This task was entrusted to Sadik Jamal by Salim Chiplun and Tarik Parvin and to accomplish this task Sadik was in constant contact with the ISI agents in Dubai through mobile phone and was obtaining necessary instruction and guidance. He has constantly talked on the mobile phone to Dubai 00971506 746775. When the elections in Gujarat were declared Sadik Jamal had arrived at Ahmedabad. According to the intelligence inputs received from the Central Agencies and from the information provided by my private and confidential informants a startling information was received that on 24-11-2002, when the Chief Minister Shri Narendrabhai Modi was to inaugurate his election office in his constituency at Khokhra in Maninagar area, Sadik Jamal dressed as activist in Paiama and Kurta carrying revolver was present in the crowd. The security around the Chief Minister was very tight, he realized that he may not be successful in his ulterior motive to kill the Chief Minister and therefore he avoided his attempt. Thereafter during the entire period of election the security arrangement of the Chief Minster was strengthened. The security around the Chief Minister was very tight, he realized that he may not be successful in his ulterior motive to kill the Chief Minister and therefore he avoided his attempt. Thereafter during the entire period of election the security arrangement of the Chief Minster was strengthened. I had altered and activated all my private informants in Ahmedabad, Bhavnagar, Mumbai and upon the instructions and guidance of my superior I had made rigorous attempts to hunt and find out Sadik Jamal and the efforts are still on even today. Yesterday i.e. 12-1-2003 while I was present in my office of the Crime Branch at Gaekwad Haveli I was informed by private informant that Sadik Jamal was certain to visit his friend in the night at 23.30 hrs. at Jay Ambe Traders in Saibaba Complex Nr. Galaxy Cinema at Naroda. I therefore, informed my higher officers and upon their guidance I along with Police Inspector Shri I.A. Saiyed, Police Inspector Shri K.M. Waghela, Police Sub-Inspector Shri G.H. Gohil and Police Sub-Inspector Shri R.L. Muvani and Policed Constable Shir Chatrasinh Manubhai Chudasama Buckle No. 6933 and Police Constable Shri Ajaypalsinh Shivram Yadav Buckle No. 7183 boarded in a private vehicle and reached nr. Jai Ambe Traders and got down at some distance on 12-1-2003 at 22.30 hrs. We kept a secret watch so that nobody could see us. Thereafter today at 1.15 hrs. we saw a person coming towards us from the direction of Galaxy Cinema in Naroda gam. When that person came very close he was identified by my; informant who told me that he was Sadik Jamal. Meanwhile that person came very close to us and therefore, I and Police Constable Ajaypal Sinh Yadav in order to nab him, marched forward. At that time Sadik became suspicious and immediately started firing bullets from his revolver. Since Sadik Jamal was well trained terrorist of Lashker-E-Toiba, we had to resort to fire from our service revolver in self defence. I therefore fired 5 rounds of bullets at him in my self defence and Police Inspector Shri A.I. Saiyed was very close to him. He also in order to save his life as well as my life fired six rounds of bullets from his revolver in self defence. These bullets hit accused on his head and also his body and therefore he collapsed on the spot. He also in order to save his life as well as my life fired six rounds of bullets from his revolver in self defence. These bullets hit accused on his head and also his body and therefore he collapsed on the spot. In order to save the life of injured Sadik Jamal we took him to the Civil Hospital of Ahmedabad where he was declared dead by Dr. K.D. Patel at 1.40 hrs. The aforesaid accused (1) Sadik Jamal Mehtar of Bhavnagar 2. Tarik Parvin, Resident of Dubai, UAE 3. Salim Chiplun Resident of Karachi, Pakistan 4. Anish Ibrahim, Resident of Karachi, Pakistan 5. Chota Shakil, Resident of Karachi, Pakistan 6. Dawood Ibrahim, resident of Karachi, Pakistan 7. Local Maulana, Resident of Dubai, UAE. And other accused who may be found during the course of investigation had in collusion with each other and to accomplish their ulterior designs of disrupting India at the behest of ISI agency of Pakistan, have participated in a criminal conspiracy of wagging war against Indian state to fulfill their common intention they had accumulated ammunitions and thus committed offence against the state and with an intention to kill the Chief Minister of Gujarat Shri Narendrabhai Modi and Pravinbhai Togadiya was in illegal possession of imported revolver without license and had resorted to firing on the police party with an intention to kill and created obstruction in the performance of our lawful duty and resisted his arrest and thereby committed offence u/s. 120B, 121-A, 122, 123, 307, 353, 186 and 224 of the Indian Penal Code and Section 135(1) of the Bombay Police Act and therefore my complaint against all the accused may be noted and investigated in accordance with law. My witnesses are named in this complaint and others who may be found during the course of investigation. This is what my complaint is and the same is true. Signature of the Complainant (J.J. Parmar) In my presence P.S.O. Crime Investigation Branch, Police Station, Ahmedabad City, Forwarded to the Hon'ble Metropolitan Magistrate Court No. 11, Ahmedabad City, dtd. 13-1-2003. P.S.O. Crime Branch Ahmedabad City" 3. This is what my complaint is and the same is true. Signature of the Complainant (J.J. Parmar) In my presence P.S.O. Crime Investigation Branch, Police Station, Ahmedabad City, Forwarded to the Hon'ble Metropolitan Magistrate Court No. 11, Ahmedabad City, dtd. 13-1-2003. P.S.O. Crime Branch Ahmedabad City" 3. The writ applicant herein came before this Court by filing the Special Criminal Application No. 963 of 2007 and prayed for registration of the offence against the police officers concerned responsible for the murder of his son by showing a fake encounter and also prayed that the investigation be conducted by the C.B.I. A Coordinate Bench of this Court, vide the judgment and order dated 16th June 2011, allowed the writ application and passed an order directing the C.B.I. to conduct the investigation into the allegations of fake encounter. The operative part of the judgment and order passed by this Court reads as under: "[12.0] In view of the above and for the reasons stated above and considering the serious allegations made with respect to killing of the brother of the petitioner alleged to be in a fake encounter by the local police and considering the fact that accusations are directed against the local police personnel including high rank police officers of the State of Gujarat, without observing anything against the credibility of the local police to investigate in the case and with a view to see that all concerned feel that the investigation is conducted properly and in fair and impartial manner and to avoid any further allegations of bias in conducting the investigation, if it is carried out by the local police, the present petition is allowed and concerned respondents, more particularly, DCB (Crime), Ahmedabad is hereby directed to register the case/complaint/FIR relating to the killing of Shri Sadik Jamal - brother of the petitioner killed on 13.01.2003 and thereafter transfer the case to Central Bureau of Investigation (CBI) and CBI is hereby directed to take up the investigation of the said complaint/case and complete the same at the earliest and preferably within a period of six months from the date of taking over the investigation from the State police authorities. All concerned are directed to cooperate the CBI authorities in completing the investigation of the said case at the earliest. All concerned are directed to cooperate the CBI authorities in completing the investigation of the said case at the earliest. In case, there are any reservations on the part of the CBI agency to take up the investigation, it will be open for them to approach this Court for modification of the present order which shall be considered accordingly so that the alternative prayer of the petitioner to transfer the investigation to any other agency like Special Investigation Team (SIT) be considered. Rule is made absolute accordingly. Registry is directed to send a copy of this judgment forthwith to the State of Gujarat through DCB (Crime), Ahmedabad and the Secretary, Home Department, State of Gujarat and to the Director, Central Bureau of Investigation, New Delhi. Registry is also directed to return/send back the record and proceedings of the complaint being I-C.R. No. 3/2003 to the concerned learned Metropolitan Magistrate." 4. The writ applicant, thereafter, filed an application addressed to the police officer of the Crime Branch at Ahmedabad dated 18th June 2011 and prayed for the registration of the F.I.R. for the offence punishable under Sections 114, 120-B, 167, 302, 323, 324, 326, 329, 331, 340, 341, 344, 348, 364, 365 and 367 of the Indian Penal Code against the following persons: "1. Shri K. Chakravarty, Director General of Police, Gujarat State. 2. Shri K.R. Kaushik, Police Commissioner, Ahmedabad. 3. Shri P.P. Pande, Joint Police Commissioner, Crime Branch. 4. Shri D.G. Vanazara, Deputy Police Commissioner, Crime Branch. 5. Shri G.L. Singhal, Assistant Police Commissioner, Crime Branch. 6. Shri H.P. Agrawal, Assistant Police Commissioner, Crime Branch. 7. Shri Jaysinh Gulabsinh Parmar, Police Inspector, Crime Branch. 8. Shri I.A. Saiyed, Police Inspector, Crime Branch. 9. Shri K.M. Vaghela, PSI, Crime Branch. 10. Shri G.M. Gohil, PSI, Crime Branch. 11. Shri R.L. Mavani, PSI, Crime Branch. 12. Shri Tarunbhai Barot, PSI, Crime Branch. 13. Shri Chhatrasinh, Police Constable. 14. Shri Ajaypal Yadav, Police Constable. 15. Shri Daya Nayak, PSI, Mumbai. 16. Shri Rajendrakumar, the then Joint Director of Central Intelligence Agency. 17. Shri J.M. Mahapatra, the then Additional DGP of State Intelligence Agency. 18. National level and State level ministers of the political party in power at relevant time." 5. 13. Shri Chhatrasinh, Police Constable. 14. Shri Ajaypal Yadav, Police Constable. 15. Shri Daya Nayak, PSI, Mumbai. 16. Shri Rajendrakumar, the then Joint Director of Central Intelligence Agency. 17. Shri J.M. Mahapatra, the then Additional DGP of State Intelligence Agency. 18. National level and State level ministers of the political party in power at relevant time." 5. The C.B.I. took over the investigation pursuant to the directions issued by this Court and filed charge-sheet against the police officers named as accused for the offence punishable under Sections 120-B, 341, 342, 364, 365, 302 and 114 of the Indian Penal Code. The charge-sheet filed by the C.B.I. reads as under: "Brief facts of the case: The Hon'ble High Court of Gujarat at Ahmedabad, vide its order dated 16.06.2011 passed in Special Criminal Application No. 963/2007 filed by Sabbir Jamalbhai Mahetar, brother of deceased Sadik Jamalbhai Mahetar, r/o. Upar Kot, Kalanala. Bhavnagar. Gujarat, directed Detection Crime Branch (DCB), Ahmedabad to register case/complaint/FIR relating to the killing of Sadik Jamalbhai Mahetar on 13.01.2003 and thereafter transfer the case to CBI for investigation. The CBI was directed to take up the investigation of the said case/complaint and complete the same at the earliest. In compliance of the Hon'ble High Court's aforesaid order, DCB Ahmedabad registered 1st CR No. 24/2011 dated 20.06.2011 u/s. 341, 342, 364, 365, 302 & 114 IPC against the then police officials of Gujarat and Maharashtra States and others and transferred the case to the CBI. The CBI re-registered the 1st CR No. 24/2011 dated 20.06.2011 as case RC 3(S)/2011/SCIII/CBI/New Delhi on 15.07.2011 u/s. 120B, 341, 342, 364, 366, 302 & 114 IPC and took up the investigation. Initially, on the complaint of Jaysinh Gulabsinh Parmar, the then PI, DCB, Ahmedabad. The CBI re-registered the 1st CR No. 24/2011 dated 20.06.2011 as case RC 3(S)/2011/SCIII/CBI/New Delhi on 15.07.2011 u/s. 120B, 341, 342, 364, 366, 302 & 114 IPC and took up the investigation. Initially, on the complaint of Jaysinh Gulabsinh Parmar, the then PI, DCB, Ahmedabad. 1st CR No. 03/2003 dated 13.01.2003 u/s. 120B, 121A, 122, 123, 307, 353, 186 & 224 IPC, 25(1)(b) & 27 of Arms Act and 135(1) of Bombay police Act had been registered at DCB, Ahmedabad, wherein it had been alleged that accused persons, namely, Sadik Jamal Mahetar r/o. Bhavnagar, Tariq Parveen r/o. Dubai, Salim Chiplun r/o Karanchi, Pakistan, Anis Ibrahim r/o Karanchi, Pakistan, Ghhota Shakeelr/o Karanchi, Pakistan, Dawood Ibrahim r/o karanchi, Pakistan, one Local Maulana r/o Dubai and others in conspiracy with each other and ISI of Pakistan, with ulterior motive of disrupting India and to achieve their ulterior goal, made attempts of waging war against Govt, of India by collecting Arms and ammunition, committed offence against the State and with intention to kill Shri Narendrabhai Modi, Chief Minister, Gujarat and Dr. Praveetibhai Togadia, sent LeT Terrorist Sadik Jamal Mahetar with imported illegal weapon. It was also alleged therein that on 12.01.2003 an information was received by Crime Branch, Ahmedabad that Sadik Jamal was to come near Jai Ambe Traders, Saibaba complex, Galaxy Cinema, Naroda, Ahmedabad to meet his associate at about 23:30 hrs. that day, hence Crime Branch officers/officials kept a watch near the said place and at about 01.15 hrs on 13.01.2003, when efforts were made to apprehend Sadik Jamal, he opened fire on the police party. The police officers, namely, PI J.G. Parmar and PI I.A. Saiyed then fired five and six rounds from their respective service revolvers in self defence and as a result of their Sadik Jamal got injured and shifted to Civil Hospital, Ahmedabad where he was declared dead by the doctor. Investigation of aforesaid case 1st CR No. 03/2003 dated 13.01.2003 of DCB, Ahmedabad was initially conducted by H.P. Agravat, the then PI/In-charge, ACP, DCS, Ahmedabad till 06.04.2003 followed by G.L. Singhal, the then ACP, DCB, Ahmedabad. Investigation of aforesaid case 1st CR No. 03/2003 dated 13.01.2003 of DCB, Ahmedabad was initially conducted by H.P. Agravat, the then PI/In-charge, ACP, DCS, Ahmedabad till 06.04.2003 followed by G.L. Singhal, the then ACP, DCB, Ahmedabad. The investigation of the case was supervised by D.G. Vanjara, the then DCP (Crime), Ahmedabad and P.P. Pandey, the then Joint CP (Crime), Ahmedabad, Following investigation, 'A' Summary Report dated 17.12.2004 was submitted by DCB, Ahmedabad in the court of Metropolitan Magistrate, Court No. 11, Ahmedabad on 28.12.2004 and the same was accepted by the learned court on 12.01.2005. The family members of the deceased Sadik Jamal suspected foul play in the alleged encounter killing of Sadik Jamal, 'but could not dare to approach any authority to complain there against due to threat caused by D G Vanjara; DCP (Crime). Ahmedabad to the father of deceased Sadik Jamal. However, the family members got a ray of hope of justice when alleged encounter killing of Shaikh Shohrabuddin was ordered by the Hon'ble Supreme Court to be investigated by CBI. Following this, Sabbir Jamalbhai Mahetar, brother of deceased Sadik Jamal filed a Special Criminal Application No. 963 of 2007 dated 10.05.2007 before the Hon'ble High Court of Gujarat at Ahmedabad praying for appropriate Writ, direction or order to the State for registration of a case against P.P. Pandey, D G Vanjara and other police officers involved in the conspiracy of killing of Sadik Jamalon 13.01.2003 and hand over the investigation to CBI or any other agency as deemed fit by the Hon'ble High Court. During the pendency of the hearing of the aforesaid application before the Hon'ble High Court, Sabbir Jamal Mahetar could get a copy of application being MCOC Spl. Case No. 4 of 2003 filed by Ketan Tirodkar in the MCOC Court, Mumbai and filed an amendment petition before the Hon'ble High Court in the matter. During the pendency of hearing of the aforesaid application, Ketan Kamlakar Tirodkar, while in judicial custody in Arthur Road Jail, Mumbai as : an under trial prisoner in MCOC Spl. Case No. 4 of 2003, also filed an affidavit dated 28.04.2008 in the Special Criminal Application No. 963 of 2007 before the Hon'ble High Court of Gujarat claiming profiling of Sadik Jamal as a member of D, gang and contract killer of LeT and his handing over to Gujarat Police for killing him in a stage managed encounter. Case No. 4 of 2003, also filed an affidavit dated 28.04.2008 in the Special Criminal Application No. 963 of 2007 before the Hon'ble High Court of Gujarat claiming profiling of Sadik Jamal as a member of D, gang and contract killer of LeT and his handing over to Gujarat Police for killing him in a stage managed encounter. The Hon'ble High Court of Gujarat after hearing the concerned parties, finally vide order dated 16.06.2011 disposed of the aforesaid Spl. Criminal Application No. 963 of 2007 with the direction to DCB, Ahmedabad to register the case relating to killing of Sadik Jamal and transfer the case to CBI for investigation. Following the Hon'ble High Court order, Sabbir Jamalbhai Mahetar submitted a written complaint dated 18.06.2011 to the Police Inspector, Crime Branch. Ahmedabad for registration of a criminal case relating to alleged fake encounter killing of Sadik Jamalbhai Mahetar. However, OCB, Ahmedabad, in pursuance to Hon'ble High Court order dated 16.06.2011, registered 1st CR No. 24/2011 dated 20.06.2011 u/s. 341, 342, 364, 365. 302 & 114 IPC against the then police officials of Gujarat and Maharashtra States arid others and transferred the case to CBI for investigation. The CBI re-registered the instant case i.e. RC 03(S)/2011-CBI/SC-III/New Delhi on 15.07.2011 and took up the investigation. Charge The investigation conducted by CBI has revealed as under:- 1. Sadik Jamalbhai Mahetar (DOB-19.10.1975). S/o. Jamalbhai Mohd. bhai Mahetar, R/o Uparkdt, Kalanala, Bhavnagar, Gujarat had left Bhavnagar, -Gujarat in 1996 after an altercation with his father following registration of a criminal case against him (Sadik) vide FIR 2nd CR No. 691/1996 u/s. 323, 504 & 506(2) IPC on 28.11.1996 at A Division police station, Bhavnagar, Gujarat on the complaint of Rajesh B. Dani, Rajesh Medical Store, Bhavnagar and came to Mumbai through one Aziz Chaipav (since expired), a friend of Tariq Parveen, r/o Mumbai. In Mumbai, Sadik started working as house help for Tariq Parveen, an associate of Dawood Ibrahim. 2. During 2000, Tariq Parveen shifted to Dubai and started living there. In early 2002, he also called Sadik Jamal to Dubai. Before leaving for Dubai, Sadik Jamal had got issued an Indian Passport No. E-0249155 dated 07.12.2001 from Regional Passport Office, Ahmedabad. In Dubai also, Sadik Jamal used to work as a house help at the residence/office of Tariq Parveen. During 2000, Tariq Parveen shifted to Dubai and started living there. In early 2002, he also called Sadik Jamal to Dubai. Before leaving for Dubai, Sadik Jamal had got issued an Indian Passport No. E-0249155 dated 07.12.2001 from Regional Passport Office, Ahmedabad. In Dubai also, Sadik Jamal used to work as a house help at the residence/office of Tariq Parveen. During October 2002, due to altercation with associates of Tariq Parveen, Sadik Jamal was sent back to India by Tariq Parveen. On return to India, Sadik Jamal had visited Bhavnagar and Mumbai. 3. After return of Sadik to India,, an input was generated by Subsidiary Intelligence Bureau (SIB), Mumbai that Sadik Jamal was a D-gang member and arrived from Dubai with an intention to kill certain Right Wing Hindu Leaders. 4. During the month of Ramzan, Sadik Jamal was arrested on 09.11.2002 along with five others while gambling and a case vide FIR 2nd CR No. 536/2002 was registered at TV Division PS, Bhavnagar u/s. 12 of Gambling Act and they were released on bail the same day. 5. Based on the inputs received from Intelligence Bureau, the Local Police of Bhavnagar started searching for Sadik Jamal. During the house search also, no incriminating documents/articles were recovered by Bhavnagar police. However, one old family photograph taken during the childhood of Sadik Jamal was taken by Bhavnagar police for further enquiries. 6. Sadik Jamal suspecting, his apprehension by Bhavnagar police, Gujarat went to Mumbai and stayed with Ahmad Abdul Karim @ Zahid, brother of Tariq Parveen in order to seek his help in the cases pending against him at Bhavnagar. Zahid in turn took Sadik Jamal to Andheri (East), Mumbai near the office of Crime Branch, CIU, Andheri where in a stage managed joint operation of SIB. Mumbai and CIU, Andheri, Crime Branch, Mumbai was undertaken and at the instance of SIB, Mumbai, Sadik Jamal was apprehended on 19.12.2002 from a place near Arsa Hotel, Andheri (East), Mumbai. At CIU, Andheri, Sadik Jamal was subjected to interrogation by the officers of SIB, Mumbai. One of days during which Sadik Jamal was kept there, Zamir Kazi who used to visit the said office for marking his attendance in pursuance of bail conditions also saw him. 7. Tarun A. Barot, the then PI. At CIU, Andheri, Sadik Jamal was subjected to interrogation by the officers of SIB, Mumbai. One of days during which Sadik Jamal was kept there, Zamir Kazi who used to visit the said office for marking his attendance in pursuance of bail conditions also saw him. 7. Tarun A. Barot, the then PI. DCB, Ahmedabad along with other staff left Ahmedabad for Mumbai on 02.01.2003 in an official vehicle bearing registration No. GJ 1 "G 3343 (P-194 Armada Jeep) driven by Driver Jiluji Arjunji Chavda and reached Mumbai on 03.01.2003. He took Sadik Jamal from the custody of CIU, Andheri, Mumbai on 03.01.2003 and returned to Ahmedabad in the early hours of 04.01.2003. Sadik Jamal was illegally confined by DCB officials, Ahmedabad at Crime Branch Office, Bunglow No. 15, Dafnala, Shahibaug, Ahmedabad till his killing in the intervening night of 12/13.01.2003. During the period of said confinement, the Police Vehicle P-170 (Regn. No. GJ 1G 3081 tempo traveler) remained deployed at said premises for movement of the DCB. officials for security/watch duty of detainee Sadik Jamal. 8. During 2002-03, accused persons, namely, J.G. Parmar, Tarun A. Bardt, I.A. Saiyed and K.M. Vaghela were posted/functioning as Inspectors, R.L. Mavani and G.H. Gohil as Sub Inspectors and Ajaypalsingh Siyaram Yadav and Chhatrasinh Manubha Chudasama as police constables at "Crime Branch, Ahmedabad. 9. As a part of pre-planned conspiracy, on 12.01.2003 evening, PI J.G. Parmar along with his other colleagues, namely, PI I.A. Saiyed, PI K.M. Vaghela, PSI R.L. Mavani, PSI G.H. Gohil, PC Ajaypalsingh Siyaram Yadav and PC Chhatrasinh Manubha Chudasama discussed the modalities of elimination of Sadik Jamal in a stage managed encounter at Sai Baba Complex area, Galaxy Cinema, Naroda, Ahmedabad. Accordingly, PSI G.H. Gohil visited Bungalow No. 15, Dafnala, Shahibaug, Ahmedabad at about 20.00 hrs. and then at about 22.00 hrs., he accompanied by other team members took. Sadik Jamal from Bungalow No. 15 to Sai Baba Complex area, Galaxy Cinema, Naroda, Ahmedabad in the tempo traveler Police Vehicle No. P-170. At about 22.00 hrs. PI I.A. Saiyed accompanied by other team members left Crime Branch office, Gaikwad Haveli, Ahmedabad in official vehicle P-137 (Regn. No. GJ 1G 2725 Ambassador car) whereas PI J.G. Parmar accompanied by other team members left the office in a private Tata Sumo vehicle (Regn. No. GJ 10F 3855). At about 22.30 hrs. they all reached near Sai Baba Complex, Galaxy Cinema, Naroda, Ahmedabad. No. GJ 1G 2725 Ambassador car) whereas PI J.G. Parmar accompanied by other team members left the office in a private Tata Sumo vehicle (Regn. No. GJ 10F 3855). At about 22.30 hrs. they all reached near Sai Baba Complex, Galaxy Cinema, Naroda, Ahmedabad. 10. The intervening night of 12/13.01.2003 was a cold and dark night. There were no street lights near Sai Baba Complex area. The chosen place of encounter was situated on the outskirts of Ahmedabad city and was a secluded area particularly during the night. In order to further avoid any eye witness/presence of any passerby near the said place, the above said police personnel waited for setting in. the dead of night to start the encounter process. Finally at about 01.15 hrs on 13.01.2003, Sadik Jamal was shot dead in a stage managed encounter near Jai Ambe Traders, Saibaba complex, Galaxy Cinema, Naroda, Ahmedabad by the encounter team members. Out of total 11 rounds/bullets fired by the encounter party, five and six rounds respectively were fired from their 38" service revolvers by PI J.G. Parmar and PI I.A. Saiyed. Further to give the said stage managed members planted a country made revolver of 32" bore and ammunition on deceased Sadik Jamal and shown their recovery from the place of encounter. 11. After the stage managed encounter, the body of Sadik Jamal was taken to Civil Hospital, Ahmedabad by the police party members, where the attending doctor declared him dead. When Sadik Jamal had been brought and admitted in the Hospital, PI Taruh A Barot had been also accompanying the encounter party members. 12. Thereafter at about 04.00 hrs. on the written complaint of PI J G Parmar, PSO, DCB, Ahmedabad registered a case vide FIR 1st CR No. 03/2003 u/s. 121A, 122, 123, 307, 353, 186 & 224 IPC, 25(1)(b) & 27 of Arms Act and 135(1) of Bombay Police Act against Sadik Jamal Mahetar and six others arid as per direction of D G Vanjara, the then DCP, Crime Branch, Ahmedabad, H.P. Agravat, the then PI/Incharge ACP took up the investigation. 13. On 13.01.2003, on. I.O.'s request, Shri Gaurav J. Prajapati, the then SDM, Ahmedabad conducted the Inquest proceedings on the dead body of deceased Sadik Jamal Mahetar at Postmortem Room of Civil Hospital, Ahmedabad. 13. On 13.01.2003, on. I.O.'s request, Shri Gaurav J. Prajapati, the then SDM, Ahmedabad conducted the Inquest proceedings on the dead body of deceased Sadik Jamal Mahetar at Postmortem Room of Civil Hospital, Ahmedabad. During inquest, he observed bullet injuries at various parts of the body of the deceased and advised to get its postmortem conducted to ascertain the exact cause of death. 14. Thereafter postmortem of the dead body of deceased Sadik Jamal Mahetar was conducted by a panel of five doctors of Deptt. of Forensic Medicine, B J Medical College, Ahmedabad on 13.01.2003. As per Postmortem Report, 14 injuries were found on the body of deceased, out of which 7 were entry wounds, 5 exit wounds, 1 irregular lacerated wound and 1 contusion on the back of right, thigh. During postmortem, two, fired bullet lead were recovered from inside the body of the deceased. The cause of death was opined to be due to shock and hemorrhage following injuries sustained to body by bullets of fire arm. All the injuries were anti mortem in nature. 15. Out of the two fired bullet lead recovered from the body of the deceased during postmortem, one each had been fired from 38 Service revolvers of PI IA Saiyed and PI J.G. Parmar as opined by the Ballistic experts. The five cartridge cases handed over by PI J.G. Parmar and six cartridge cases handed over by PI I.A. Saiyed to I.O.H.P. Agavat were opined to have been fired from their respective 38" service revolvers. 16. PI H.P. Agravat had seized one revolver, one misfired cartridge one cartridge case, blood soaked soil and Control Soil from the place of encounter on 13.01.2003. The said exhibits were forwarded by him FSL, Ahmedabad for opinion. The FSL, Ahmedabad opined that it was a country made revolver capable of chambering and firing .32" revolver cartridge and was in working condition. An indentation mark could be seen on the percussion cap of the misfired cartridge and it was opined that the said cartridge was attempted for firing from the said revolver. The misfired cartridge was test fired from the said revolver by the FSL expert and opined to be a live cartridge. An indentation mark could be seen on the percussion cap of the misfired cartridge and it was opined that the said cartridge was attempted for firing from the said revolver. The misfired cartridge was test fired from the said revolver by the FSL expert and opined to be a live cartridge. As regard to cartridge case, it was opined that it was a fired cartridge as nitrate and lead could be detected during chemical examination, however, it could not be compared with the said revolver due to missing of percussion cap thereon. Further with respect to the six cartridges recovered during inquest proceeding on 13.01.2003 and forwarded to FSL, Ahmedabad by PI H.P. Agravat, the expert had opined that the said cartridges were of .32" bore and were live ammunitions. 17. The CFSL expert after comparing aforesaid control soil{lifted from the place of encounter) with the soil particles extracted from the T shirt and Jeans pant of the deceased and aforesaid blood soaked soil (lifted from the place of encounter) opined that the general physical characteristics and density gradients and distribution of particles are similar to each other. It goes to suggest that the stage managed encounter had taken place near Jai Ambey Traders, Sai Baba Complex, Naroda, Ahmedabad. 18. The CFSL expert further generated the DNA profile from the T shirt, Jeans pant and blood sample of the deceased and opined the blood to be of male origin and consistent with each other. The DNA profile generated from the aforesaid blood sample of Jamalbhai Mohd. Bhai Mahetar, R/o Uparkot, Kalanala, Bhavnagar and it was opined that deceased Sadik Jamalbhai Mahetar was the biological son of said Jamalbhai Mohd. Bhai Mahetar. 19. During postmortem, the panel of doctors had taken two skin pieces from the wounds of deceased and same had been forwarded by PI H.P. Agravat to FSL (Ahmedabad. FSL, Ahmedabad opined that residue of fired ammunition, nitrate and lead could be detected on the skin pieces; FSL, Ahmedabad also opined presence of residue of fired ammunition, nitrate and lead around the holes of T shirt of deceased. These suggest that the firing was done by the police party from a very close range. 20. The investigation established that Sadik Jamal was killed in a stage managed encounter while in illegal confinement of Crime Branch, Ahmedabad, Gujarat police. These suggest that the firing was done by the police party from a very close range. 20. The investigation established that Sadik Jamal was killed in a stage managed encounter while in illegal confinement of Crime Branch, Ahmedabad, Gujarat police. Hence the question of firing by Sadik on the police party and recovery of revolver and ammunition from his possession does not arise at all. Accused police officials in order to give this incident a colour of genuine encounter planted and effected recovery of the revolver and ammunition from deceased. 21. In pursuance of criminal conspiracy, PI J.G. Parmar filed a false information respecting encounter knowing fully well that it was an offence of murder. 22. That the evidences, documentary, oral and circumstantial available on record establish that accused persons by entering into a exhibits was further compared by the experts with the DNA profile generated from the criminal conspiracy, committed the offences punishable u/s. 120B r/w 341, 342, 343, 302 & 203 IPC. 23. The investigation relating to the complicity/involvement of other persons in the commission of crime relating to profiling Sadik Jamal as a terrorist and his killing in a fake encounter has been kept open and a further report u/s. 173(8) of Cr.P.C. will be filed after the detailed investigation is completed. 24. It is, therefore, prayed that this Hon'ble court may kindly take cognizance against the following accused persons, namely, Jaysinh Gulabsingh Parmar (A-1), Irshad Ali Saiyed (A-2), Kishoresinh Motisinh Vaghela (A-3), Ramjibhai Laxmanbhai Mavani (A-4), Ghanshyamsinh Hathisinh Gohil (A-5), Ajaypalsingh Siyaram Yadav (A-6), Chhatrasinh Manubha Chudasama (A-7) and Tarunkumar Amrutlal Barot (A-8) for commission of the offences punishable u/s. 120-B r/w 341, 342, 343, 302 & 203 IPC and they may be tried and punished as per law for the aforesaid offences, in the interest of justice." 6. Thus, the case of the writ applicant is that there is more than a prima facie case against the accused persons responsible for the murder of his son in the form of the charge-sheet filed by the C.B.I. 7. Mr. Subramaniam Iyer, the learned counsel appearing for the writ applicant vehemently submitted that the custodial violence, torture, fake encounter and abuse of police powers are not peculiar to this country, but it is widespread. Mr. Mr. Subramaniam Iyer, the learned counsel appearing for the writ applicant vehemently submitted that the custodial violence, torture, fake encounter and abuse of police powers are not peculiar to this country, but it is widespread. Mr. Subramaniam submits that a young boy aged 25 was done to death by the high ranking officers of the State by showing a fake encounter and by projecting the deceased as a hardcore terrorist. The counsel submitted that Article 21, which is one of the luminary provisions in the Constitution of India, and is a part of the scheme for fundamental rights occupies a place of pride in the Constitution. The Article mandates that no person shall be deprived of his right and personal liberty, except according to the procedure established by law. According to Mr. Subramaniam, the writ applicant, being the father of the victim, is entitled to seek compensation in terms of the money from the State Government on the principles of tortious liability. He submitted that this Court, in exercise of its extraordinary powers under Article 226 of the Constitution of India, should intervene and order for payment of money in the nature of compensation, consequent upon the deprivation of a fundamental right to life and liberty of a person, as the State must repair the damage done by its officers to such person's right. 8. Mr. 8. Mr. Subramaniam, in support of his submissions, has placed reliance on the following decisions: "(1) The decision of the Supreme Court in the case of People's Union for civil Liberties (Delhi) vs. Union of India [ (1997) 3 SCC 483 ] (2) The decision of the Supreme Court in the case of State of Punjab and Haryana High Court Bar Association vs. State of Punjab [ (1996) 4 SCC 742 ] (3) The decision of the Supreme Court in the case of Rudul Shah vs. State of Bihar [ AIR 1983 SC 1086 : (1983) 4 SCC 141 ] (4) The decision of the Supreme Court in the case of Rubabbuddin Sheikh vs. State of Gujarat [ (2009) 17 SCC 653 ] (5) The decision of the Supreme Court in the case of Nilabati Behera alias Lauta Behera (Through the Supreme Court Legal Aid Committee) vs. State of Orissa [ (1993) 2 SCC 746 ] (6) The decision of the Jammu and Kashmir High Court in the case of Sheikh Mohd Anwar vs. State of Jandk [Laws (J & K) 2003 (7) 29]. (7) The decision of the Punjab and Haryana High Court in the case of Prem Singh vs. State of Punjab [Laws (P & H) 2005 (7) 111] (8) The decision of the High Court of Allahabad in the case of Usha Devi vs. Union of India through Secretary of Home Affairs, New Delhi [ Laws (All) 2007 (1) 121] (9) The decision of the High Court of Orissa in the case of Simkari Huika vs. State of Orissa [Laws (Ori) 2001 (9) 34] (10) The decision of the High Court of Manipur in the case of Saikhom Ongbi Senu Devi vs. the Union of India [Laws (Manip) 2014 (9) 10] (11) The decision of the High Court of Calcutta in the case of Nirmala Chakraborty vs. State of West Bengal [Laws (Cal) 2015(7) 17] 9. On the other hand, this writ application has been vehemently opposed by Mr. P.K. Jani, the learned Additional Advocate General appearing for the State of Gujarat. The submissions of Mr. Jani, by and large, are as under: "(1) There is no conclusive finding of any judicial authority as regards the alleged fake encounter. (2) Charge-sheet is filed in the case. One accused has filed an application seeking discharge under Section 227 of the Criminal Procedure Code. The submissions of Mr. Jani, by and large, are as under: "(1) There is no conclusive finding of any judicial authority as regards the alleged fake encounter. (2) Charge-sheet is filed in the case. One accused has filed an application seeking discharge under Section 227 of the Criminal Procedure Code. The charge has yet not been framed. The procedure for commencement of the trial of a Sessions case as prescribed under Chapter-18 from Section 228 onwards is yet to take place. (3) That as stated by the CBI in para 23 in its report charge-sheet observed as follows: "23. The investigation relating to the complicity/involvement of other persons in the commission of crime relating to profiling Sadik Jamal as a terrorist and his killing in a fake encounter has been kept open and a further report u/s. 173(8) of Cr.P.C. will be filed after the detailed investigation is completed." (4) In view of the aforesaid, there is no finality given to the allegation made by the petitioner about the fake encounter. Hence, the writ petition seeking compensation at this stage of the proceedings is premature. (5) The investigation carried out by other investigating agency - CBI as constituted under the provisions of Delhi Special Police Establishment Act, 1946 (on the basis of directions given by the Hon'ble High Court in Special Criminal Application) has filed the charge-sheet for offence under Section 302 of the Indian Penal Code against the accused. (6) Till date, there is no judicial finding recorded by any judicial authority holding that this is a case of fake encounter. (7) That, considering the provisions of section 162 of Criminal Procedure Code, at this stage, papers of charge-sheet may not be made basis for holding the State liable to pay the compensation. Section 162 is reproduced below: "162. (6) Till date, there is no judicial finding recorded by any judicial authority holding that this is a case of fake encounter. (7) That, considering the provisions of section 162 of Criminal Procedure Code, at this stage, papers of charge-sheet may not be made basis for holding the State liable to pay the compensation. Section 162 is reproduced below: "162. Statements to police not to be signed : Use of statement in evidence (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made : Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872; and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872, or to affect the provisions of section 27 of that Act. Explanation.-An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact." (8) In the present case, the incident has taken place on 13-1-2003. "A" summary report is accepted by learned Metropolitan on 12-6-2005. Hon'ble High Court has passed order on 16-6-2011 directing CBI for investigation. "A" summary report is accepted by learned Metropolitan on 12-6-2005. Hon'ble High Court has passed order on 16-6-2011 directing CBI for investigation. CBI reregistered the case on 15-7-2011 and the present application for compensation is filed on 13-12-2016. The petitioner who is the father of the deceased has filed an application after 13 years of the incident. (9) That the police report charge-sheet is the result of the investigation under Chapter - 12 of the Criminal Procedure Code. The Investigating Officer has drawn the conclusion on the basis of material collected during the investigation and such conclusion forms the basis for the competent Court to take cognizance under Section 190(1)(b) of the Criminal Procedure Code and thereafter to proceed with the case for trial. Thus, the papers of the investigation are the basis for further steps to be taken by the Judicial Court - Criminal Court. They are not conclusive evidence. (10) That the judgments relied upon by the petitioner are not applicable to the facts of the case as the factual findings in those cases are different than the facts of the present case. (11) That Criminal Courts have the jurisdiction and competency to grant compensation under Section 357 of the Criminal Procedure Code after the order of sentence is passed. In the present case, even the charge has yet not been framed. Obviously, trial has not commenced. The charge against the Police Officers is yet to be established in a Court of competent jurisdiction. (12) The police report is not the evidence within the meaning of Section 3 of the Evidence Act. The report submitted by the investigating agency is not the evidence within the meaning of Section 3 of the Evidence Act. (13) That the State respectfully submits that in view of the aforesaid fact situation the present writ petition is not maintainable. The relief as sought for by the petitioner is not available to the petitioner at this stage as no judicial finding is recorded holding it to be fake encounter. The petitioner has alternative remedy of filing Civil Suit to claim compensation. There are highly disputed questions of fact at this stage of the proceedings. The petitioner is not entitled to any amount of compensation. The petitioner has alternative remedy of filing Civil Suit to claim compensation. There are highly disputed questions of fact at this stage of the proceedings. The petitioner is not entitled to any amount of compensation. (14) That is further respectfully submitted that allowing the writ petition would endorse and justify the charge-sheet filed by the C.B.I. yet to meet with the rigors of trial and judicial scrutiny. Granting of compensation which would prejudice principle of fair trial and rights of all parties." 10. Mr. Jani, in support of his submissions, has placed reliance on the following decisions: (1) Sube Singh vs. State of Haryana and others [(2006) SCC 178] (2) S.P.S. Rathore vs. State of Haryana and others [ (2004) 10 SCC 1 ] (3) Rajendra Singh Pathania vs. State (NCT of Delhi) [ (2011) 13 SCC 329 ] (4) Rabindra Nath Ghosal vs. University of Calcutta and others [(2002) G.L.H. 743] (5) M.C. Mehta vs. Union of India [ AIR 1987 SC 1086 ] 11. In such circumstances referred to above, Mr. Jani, the learned Additional Advocate General prays that there being no merit in this writ application, the same be rejected. 12. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the writ applicant is entitled to the relief of compensation, as prayed for, in this writ application. 13. The picture that emerges from the materials on record is as under: (1) On 13th January 2003, Sadik Jamal died. (2) On 13th January 2003, the First Information Report came to be filed by the police officer against six accused including Sadik Jamal under Section 120B, 121A, 122, 123, 307, 353, 186 and 224 of the Indian Penal Code read with Section 135(1) of the Bombay Police Act. (3) On 17th December 2004, an "A" summary report prepared by the police. (4) On 28th December 2004. The police submitted the said report to the Metropolitan Magistrate, Court No. 11, Ahmedabad. (5) On 12th January 2005. The Metropolitan Magistrate, Court, Ahmedabad accepted the "A" summary report. (3) On 17th December 2004, an "A" summary report prepared by the police. (4) On 28th December 2004. The police submitted the said report to the Metropolitan Magistrate, Court No. 11, Ahmedabad. (5) On 12th January 2005. The Metropolitan Magistrate, Court, Ahmedabad accepted the "A" summary report. (6) On 9th May 2007, the Special Criminal Application No. 963 of 2007 filed by Sabbir Jamal Mahetar who is the brother of the deceased before this Court with a prayer to hand over the investigation to the C.B.I. (7) On 16th June 2011, this Court allowed the writ petition by directing the D.C.B. Crime, Ahmedabad to register the case/F.I.R. relating to the killing of Sadik Jamal Mahetar brother of the petitioner and further ordered to transfer the case to the Central Bureau of Investigation (CBI). (8) On 20th June 2011, Mayur Chavda, the Officer of the D.C.B. Filed First Information Report being C.R. No. 24 of 2011 and transferred it to the C.B.I. (9) On 15th July 2011, the C.B.I. re-registered the case under Sections 120B, 341, 342, 364, 365, 302 and 114 of the Indian Penal Code as R.C. 3(S) 2011 - CBI, CBI New Delhi. (10) On 1st August 2011, the Special Leave Petition filed by the State was taken up for hearing by the Supreme Court and notice was issued. Following is the order passed by the Supreme Court: "Issue notice limited to the question of legality and validity of the STF and the Monitoring Committee set up by the State of Gujarat vide notification, dated 16.9.2010. Mr. Harish N. Salve, learned senior advocate appearing for the petitioners, states that apart from the question of legality of the constitution of the STF and the Monitoring Committee, there are certain other observations made by the High Court while directing the case to to be investigated by the CBI that need consideration by this Court." (11) On 28th November 2011, leave granted by the Supreme Court in the Special Leave Petition. Following is the order passed by the Supreme Court: "Leave granted. It is made clear that this Court is not staying the operation of the impugned order insofar as the High Court directed the CBI to make investigation into the case of the killing of Sadik Jamal. Following is the order passed by the Supreme Court: "Leave granted. It is made clear that this Court is not staying the operation of the impugned order insofar as the High Court directed the CBI to make investigation into the case of the killing of Sadik Jamal. The pendency of the appeal before this Court shall not stand in the way of the CBI in completing the investigation and submitting final report and the case proceeding on that basis, in accordance with law." (13) On 21st December 2012, the C.B.I. submitted charge-sheet against eight accused for the offence punishable under Sections 120-B, 341, 343, 302 and 203 of the Indian Penal Code. (14) On 21st December 2012, the C.B.I. Court registered the charge-sheet and passed following order: "The charge sheet is hereby order to be registered after due verification. Issue NBW against accused No. 2 and No. 3 for the offences under Section 120B r/w S. 341, 342, 343, 302 and 203 of Indian Penal Code thereof returnable on 31.12.2012 and yaadi to the jail authorities accordingly for the due date 31.12.2012." (15) On 19th February 2014, the Supreme Court passed the following order in the Special Leave Petition: "The learned counsel for the parties submit that they do not wish the file additional documents. The matter falls under the complete category. List before the Hon'ble Court, as per rules. At this stage, the learned counsel for respondent No. 1 submits that she will file the additional documents within four weeks. Time, as prayed for, is granted. List again on 24.3.2014." (16) On 13th December 2016, Jamalbhai Mohamdbhai Mahetar, father of the deceased Sadik Jamal, filed the present writ application seeking compensation of Rupees Fifty Lac from the State. 14. The issue of award of compensation in case of the violation of fundamental rights of a person has been considered by the Supreme Court time and again and it has consistently been held that although the Supreme Court and the High Courts, in exercise of their jurisdictions under Articles 32 and 226 respectively of the Constitution of India, can award compensation for such violations, but such a power should not be lightly exercised. Article 226 of the Constitution of India cannot be used as a substitute for the enforcement of the rights and obligations, which could be enforced efficaciously through the ordinary process of the Courts. Article 226 of the Constitution of India cannot be used as a substitute for the enforcement of the rights and obligations, which could be enforced efficaciously through the ordinary process of the Courts. Before awarding any compensation, there must be a proper inquiry on the question of facts alleged in the complaint. The Court may examine the report and determine the issue after giving an opportunity by filing objections to rebut the same and hearing to the other side. The awarding of compensation is permissible in case the Court reaches the same conclusion on an re-appreciation of the evidence adduced at the inquiry. The award of monetary compensation, in such an eventuality, is permissible when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers. (Vide: Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026 ; Bhim Singh, MLA v. State of J and K and Ors., AIR 1986 SC 494 ; Smt. Nilabati Behera v. State of Orissa and Ors., AIR 1993 SC 1960 : (1993 AIR SCW 2366); D.K. Basu v. State of W.B., AIR 1997 SC 610 : (1997 AIR SCW 233); Chairman, Railway Board and Ors. v. Mrs. Chandrima Das and Ors., AIR 2000 SC 988 : (2000 AIR SCW 649); and S.P.S. Rathore v. State of Haryana and Ors., (2005) 10 SCC 1 ). 15. In Sube Singh v. State of Haryana and Ors., AIR 2006 SC 1117 : (2006 AIR SCW 779), while dealing with similar issue, the Supreme Court held as under: "In cases where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, the courts may award compensation in a proceeding under Article 32 or 226. However, before awarding compensation, the Court will have to pose to itself the following questions: (a) whether the violation of Article 21 is patent and incontrovertible, (b) whether the violation is gross and of a magnitude to shock the conscience of the court, (c) whether the custodial torture alleged has resulted in death ..... However, before awarding compensation, the Court will have to pose to itself the following questions: (a) whether the violation of Article 21 is patent and incontrovertible, (b) whether the violation is gross and of a magnitude to shock the conscience of the court, (c) whether the custodial torture alleged has resulted in death ..... Where there are clear indications that the allegations are false or exaggerated fully or in part, the courts may not award compensation as a public law remedy under Article 32 or 226, but relegate the aggrieved party to the traditional remedies by way of appropriate civil/criminal action." (See also: Munshi Singh Gautam (D) and Ors. v. State of M.P., AIR 2005 SC 402 : (2004 AIR SCW 6537); and Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi and Ors., AIR 2010 SC 475 : (2009 AIR SCW 7015)). 16. A Constitution Bench of the Supreme Court in the case of M.C. Mehta (supra), in connection with awarding compensation to the victims of gas leak (Bhopal tragedy), observed as under: "7. ...We must therefore, hold that Art. 32 is not powerless to assist a person when he finds that his fundamental right has been violated. He can in that event seek remedial assistance under Art. 32. The power of the court to grant such remedial relief may include the power to award compensation in appropriate cases. We are deliberately using the words "in appropriate cases" because we must make it clear that it is not in every case where there is a breach of a fundamental right committed by the violator that compensation would be awarded by the Court in a petition under Art. 32. The infringement of the fundamental right must be gross and patent, that is, incontrovertible and ex facie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of persons or it should appear unjust or unduly harsh or oppressive on account of their poverty or disability or socially or economically disadvantaged position to require the persons or persons affected by such infringement to initiate and pursue action in the civil Courts, Ordinarily, of course, a petition under Art. 32 should not be used as a substitute for enforcement of the right to claim compensation for infringement of a fundamental right through the ordinary process of civil Court. It is only in exceptional cases of the nature indicated by us above, that compensation may be awarded in a petition under Art. 32. This is the principle on which this Court awarded compensation in Rudul Shah v. State of Bihar, AIR 1983 SC 1086 ..." 17. In Nilabati Behera (supra), a writ petition was filed under Article 32 of the Constitution for determining the claim of compensation consequent upon the death of petitioner's son in the police custody. In view of the denial by the State that death was due to police harassment when the deceased was in police custody, the Supreme Court gave a direction to the District Judge, Sundergarh in Orissa, to hold an inquiry into the matter and submit a report. The District Judge reached the conclusion that it was a case of custodial death. In view of the dispute as to the correctness of the findings in the report of the District Judge, the matter was examined afresh by the Supreme Court in the light of the objections raised. The Supreme Court also reached the same conclusion on a reappraisal of the evidence adduced at the enquiry. On this conclusion, the question arose as to the liability of the State for payment of compensation for custodial death. The Supreme Court held that: "A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a Constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right." The Supreme Court further observed that: "The defence of sovereign immunity being inapplicable and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the Constitutional remedy. It is this principle which justified award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental rights is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution." Justice A.S. Anand (as His Lordship then was) in concurring opinion observed that: "The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by or under Article 226, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interest as and preserve their rights. Therefore, when the Court moulds the relief by granting compensation in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. the payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making monetary amends under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen the compensation is in the nature of exemplary damages awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law." It was further observed that: "This Court and the High Courts, being the protectors on the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law - through appropriate proceedings. Of course, relief in exercise of the power under Article 32 or 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and no other from of appropriate redressal by the court in the facts and circumstances of the case, is possible. It is a sound policy to punish the wrongdoer and it is in that spirit that the courts have moulded the relief by granting compensation to the victims in exercise of their writ jurisdiction. It is a sound policy to punish the wrongdoer and it is in that spirit that the courts have moulded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so the courts take into account not only the interest of the applicant and the respondent but also the interest of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where the fundamental right of a citizen under Article 21 is concerned." 18. This legal position has been reiterated in D.K. Basu vs. State of W.B. (1997) 1 SCC 416 ]. 19. In Chairman, Grid Corporation of Orissa Ltd. (Gridco) & Ors. vs. Sukamani Das (Smt.) & Anrs. [ (1999) 7 SCC 298 ], the question which arose for consideration was, can the High Court under Article 226 of the Constitution award compensation for death caused due to electrocution on account of negligence, when the liability was emphatically denied on the ground that the death had not occurred as a result of negligence, but because of an act of God or of acts of some other persons. The Court held that it is the settled legal position that where disputed questions of facts are involved, a petition under Article 226 of the Constitution is not a proper remedy. Therefore, questions as to whether death occurred due to negligence or due to act of god or of some third person could not be decided properly on the basis of affidavits only, but should be decided by the civil court after appreciating the evidence adduced by the parties. In Tamil Nadu Electricity Board vs. Sumathi & Ors. [ (2000) 4 SCC 543 ], it was held that when a disputed question of fact arises and there is clear denial of any tortuous liability, remedy under Article 226 of the Constitution may not be proper. The Court carved out an exception to this general rule by observing that, it should not be understood that in every case of tortuous liability, recourse must be had to a suit. When there is negligence on the face of it and infringement of Article 21 is there, it cannot be said that there will be any bar to proceed under Article 226 of the Constitution. 20. When there is negligence on the face of it and infringement of Article 21 is there, it cannot be said that there will be any bar to proceed under Article 226 of the Constitution. 20. In Nilabati Behera (supra), the Supreme Court has also broadly specified the situations in which the remedy of providing compensation for violation of fundamental rights available under the domain of public law has to be invoked. The Supreme Court held that: "If the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be more readily available when invoked by the have-nots, who are not possessed of the wherewithal for enforcement of their rights in private law, even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies, where more appropriate." It was further held that: "Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply and the courts have to act firmly but with certain mount of circumspection and self-restraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute, for civil action in private law." 21. As on date, the accused persons against whom the allegations have been levelled, are yet to be put on trial. The case of the State from day one is that the deceased was a terrorist and it was he along with his accomplices, opened fire from his revolver. The case of the State is that as the deceased was a well-trained terrorist of Lashker-E-Toiba, the police officers had to resort to firing from their service revolvers in self-defence. 22. As on date, the C.B.I. has filed charge-sheet, but whether the filing of the charge-sheet by itself is sufficient to pass an order of compensation and that too, after a period of fourteen years from the date of the incident. As observed by the Supreme Court in the case of People's Union for Civil Liberties vs. State of Maharashtra [2015 Cri. As observed by the Supreme Court in the case of People's Union for Civil Liberties vs. State of Maharashtra [2015 Cri. L.J. 610], the Police in India has to perform a difficult and delicate task, particularly, when many hardcore criminals, like extremists, terrorists, drug peddlers, smugglers who have organized gangs, have taken strong roots in the society, but then such criminals must be dealt with by the police in an efficient and effective manner so as to bring them to justice by following the rule of law. 23. What is discernible from the various decisions of the Supreme Court referred to above is that before awarding compensation, the Court should pose to itself the following two questions: [1] Whether the violation of Article 21 of the Constitution is patent and incontrovertible. [2] Whether the violation is grave and of a magnitude to shock the conscience of the Court. 24. The trial is likely to commence in the near future. It has been almost fourteen years from the date of the incident. At this stage, I find it difficult to grant the relief on the assumption that the case is one of a fake encounter. There are allegations and counter allegations. Of course, the C.B.I., after investigation, has reached to the conclusion that the case is one of fake encounter, but the accused are yet to be put on trial. The evidence cannot be termed as incontrovertible. Any finding, in this regard, even prima facie at this stage, at the end of this Court, will have its own implications so far as the trial is concerned. It is true that the Courts must deal with matters, like one on hand in a realistic manner and with the sensitivity which it deserves, otherwise, the common man may tend to gradually lose faith in the efficacy of the system of the judiciary itself, which if it happens will be a sad day for anyone to reckon the truth. 25. In such circumstances referred to above, I am not for the present accepting the prayer for compensation, because that would depend upon the issue as to whether there was a fake encounter. I make it clear that I have not expressed any opinion on the truth or otherwise of the allegations made in the charge-sheet and the same will be considered by the Trial Court concerned. 26. I make it clear that I have not expressed any opinion on the truth or otherwise of the allegations made in the charge-sheet and the same will be considered by the Trial Court concerned. 26. In view of the above, this writ application fails and is hereby rejected. Notice stands discharged. Application Dismissed