Supreme Court Dismisses Plea For Independent Probe Into Alleged Extra-Judicial Killings Of Chhattisgarh Tribals By Forces With Rs 5 Lakh Costs

The Supreme Court on Thursday dismissed a writ petition filed in 2009 seeking independent investigation into alleged extra-judicial killings of tribals in Chhattisgarh by security forces during anti-Naxal operations with an "exemplary cost" of Rs 5 lakhs.

A bench comprising Justices AM Khanwilkar and JB Pardiwala delivered the judgment on the petition filed by one Himanshu Kumar and 12 others in 2009. The bench had reserved judgment on May 19.

The cost of Rs 5 lakhs is imposed on the first petitioner Himanshu Kumar, who has been directed to deposit the same within 4 weeks before the Supreme Court Legal Services Committee, failing which recovery steps will be taken against him.

The Central Government had not only opposed the plea but also had filed an application seeking perjury proceedings against the petitioners alleging that they were depicting the executions carried out by Naxals as done by security forces.

As regards Centre's plea, the Court left it to the State of Chhattisgarh to act against the petitioners for the offence of making false charges under Section 211 IPC. The Court said that the action can be taken not only for false charges but also criminal conspiracy. As regards Centre's plea to initiate perjury proceedings against petitioner, the Court said that it is not proceeding with that.

"We leave it to the State of Chhattisgarh to take apt steps in accordance with law as discussed above with reference to the assertions in the interim application. We clarify that it would not only be limited to the offence of S.211 of the IPC. A case of conspiracy or any other offence may also surface. We have not expressed any final opinion. We leave it to the better discretion of the Stare. We are not proceedings further with perjury but leave it to the State to take apt step. It could be prosecution under S211 or any other other that may surface ultimately", Justice Pardiwala read out the operative portion of the order.

After this portion was read out, Solicitor General of India Tushar Mehta requested that a probe by a central agency be allowed, saying that the conspiracy may have "inter-state ramifications".

"If central agency can be permitted...kindly clarify that", the SG submitted.

"We will clarify this and sign the order", Justice Khanwilkar said.

In the judgment uploaded, the Court has permitted CBI also to probe into the matter. The relevant portion in the judgment is as follows :

"...we leave it to the State of Chhattisgarh/CBI (Central Bureau of Investigation) to take appropriate steps in accordance with law as discussed above in reference to the assertions made in the interim application. We clarify that it shall not be limited only to the offence under Section 211 of the IPC. A case of criminal conspiracy or any other offence under the IPC may also surface. We may not be understood of having expressed any final opinion on such action/proceedings. We leave it to the better discretion of the State of Chhattisgarh/CBI to act accordingly keeping in mind the seriousness of the entire issue. Thus, the relief prayed for in terms of Para 67(b) hereinabove, of the subject interlocutory application is hereby granted".

About the case

The petition was filed seeking independent investigation into the massacres that took place on 17th September 2009 and 1st October 2009 respectively in the villages of Gachhanpalli, Gompad and Belpocha respectively situated in the district of Dantewada, State of Chhattisgarh.

The petitioners alleged that the Chhattisgarh Police, Special Police Officers (SPOs), the activists of Salwa Judum (group of vigilantes sponsored by the Chhattisgarh Government) and the Paramilitary Forces consisting of the CRPF and the CoBRA Battalions are responsible for the brutal massacre of the tribals 

The writ petitioner no.1, namely Himanshu Kumar, was running an NGO in the name of Vanvasi Chetna Ashram, Kanwalnar – Dantewada Chhattisgarh.

The writ petitioners nos. 2 to 13 respectively are the kith and kin of the victims of the massacre.

The Centre alleged purpose and motive of the present writ petitioners was to derail the ongoing efforts of the security forces in neutralizing the Left Wing Extremism movement and the armed Left Wing Extremists

"The victims of abuse and atrocities inflicted by unscrupulous Left Wing Extremists are being misguided by some motivated individuals to provide legal protection to the Left Wing Extremists by obtaining protective orders from this Hon'ble court through fraudulent and deceitful machinations," the Centre had said in its application.

Solicitor General of India Tushar Mehta had told the Court that the State Police had registered FIRs with respect to the incidents of 2009 and in many cases chargesheets have been filed. All the accused persons named in the charge sheets have been shown as absconding. The SG also submitted that the petitioner no. 1- Himanshu Kumar- is the director of an NGO Vanavasi Chetna Ashram, whose FCRA license was suspended for not accounting foreign contributions.

Senior Advocate Colin Gonsalves, appearing for the petitioners, had submitted that there should be an independent investigation by CBI/NIA.

The Court, in its judgment observed, "We are really taken by surprise that the learned senior counsel appearing for the writ petitioners is absolutely oblivious of the fact that all the FIRs were investigated by the concerned investigating agencies and, at the end of the investigation, charge sheets came to be filed in different courts of the State of Chhattisgarh for the offences under the IPC like murder, dacoity, etc".

The Court added that the filing of the charge sheets at the conclusion of the investigation into the various FIRs referred to above would indicate that the alleged massacre was at the end of the Naxalites (Maoists).

The Court also noted that in 2010, District and Sessions Judge at Delhi had recorded the statements of the petitioners as per the orders of the Supreme Court. As per the statement recorded by the District Judge, the petitiioners said that the attackers came from jungles.

The Court did not accept the objection raised by Gonsalves to the manner of recording of statements undertaken by the District Judge, saying that such objections ought to have been raised in 2010 itself.

"The statements of the petitioners nos.2 to 13 recorded before the Judicial Officer demolishes the entire case put up by the petitioner no.1, who is running an NGO", the Court said.

The Court added :

"It appears from the materials on record that all those persons who have been arraigned as accused and against whom charge sheets have been filed are absconding. It is now for the concerned trial court to take appropriate steps in this regard. If the persons named as accused in the charge sheets are absconding, then it is expected of the investigating agency to take necessary steps for their arrest. In any view of the matter, it is now for the trial court to do the needful in accordance with law.

"In the overall view of the matter, we have reached to the conclusion that no case, worth the name, has been made out by the writ petitioners for any further investigation much less through an independent agency to be appointed by this Court"

Case Title : Himanshu Kumar and othes versus Union of India and others

Citation : 2022 LiveLaw (SC) 598

Click here to read/download the judgment