SHAMIMA KAUSER versus UNION OF INDIA AND ORS.

Citation: [2010] 5 S.C.R. 89 · Decided: 19-04-2010 · Supreme Court of India · Bench: B. SUDERSHAN REDDY · Disposal: Disposed off

Judgment (excerpt)

[2010] 5 S.C.R. 89 
SHAMIMA KAUSER 
v. 
UNION OF INDIA AND ORS. 
(Criminal Appeal No. 818 of 2010) 
APRIL 19, 2010 
[B. SUDERSHAN REDDY AND SURINDER SINGH 
NIJJAR, JJ.] 
A 
8 
Constitution of India, 1950 - Art. 136 - Interference with 
ad-interim order passed by High Court - Scope - Deaths in 
C 
alleged encounters staged by Gujarat police - Writ petition 
seeking investigation by CBI - High Court passed order for 
constituting an Investigation Team - Meanwhile, Metropolitan 
Magistrate made inquiry u/s. 176 CrPC and submitted report 
whereunder the alleged encounters were found to be fake -
D 
Police officials indicted in the report - Application filed by 
State Government in the writ petition, with prayer to set aside 
the report of the Magistrate - Operation of the report stayed 
by High Court, with further direction to the Registrar General 
of the High Court to make detailed inquiry into the matter 
E 
which led to holding of inquiry by the Magistrate uls. 176, 
CrPC - On appeal, held: Order passed by High Court was ad-
interim in its nature - Such ad-interim order not to be 
interfered with under Art. 136 - Interest of justice would be met 
F 
if the main writ Petition itself is heard and disposed of by High 
Court alongwith the application filed by State Government -
Meanwhile, Investigating Team already constituted by the 
High Court not to deal with the report of Magistrate in any 
manner whatsoever - Directions of High Court to Registrar 
General (of the High Court) to make detailed inquiry into the 
G 
matter set aside - Code of Criminal Procedure, 1973 - s.176 
- Interim order. 
Some persons died in alleged encounters by the 
89 
H 
90 
SUPREME COURT REPORTS 
[2010] 5 S.C.R. 
A Gujarat police. Appellants, i.e. the parents of the 
deceased, filed writ petition seeking investigation into the 
deaths, by CBI. The High Court passed order for 
constituting an Investigation Team. Meanwhile, the 
Metropolitan Magistrate made inquiry u/s. 176 CrPC 
B pursuant to orders of the Chief Metropolitan Magistrate 
and su Jmitted report whereunder the alleged encounters 
were found to be fake. Police officials were ir. cted in the 
said report. 
C 
The State Government filed application in the writ 
petition, with prayer to set aside the report of the 
Magistrate. The operation of the report was stayed by 
High Court, with further direction to the Registrar General 
of the High Court to make detailed inquiry into the matter 
which led to holding of inquiry by the M~gistrate under 
D Section 176, CrPC. Hence the present appeals. 
Disposing of the appeals, the Court 
HELD: 1. The order passed by the High Court is ad-
E interim in its nature granting stay of the operation of the 
report (submitted by the Magistrate) as at present. The 
High Court had not yet finally disposed of the Criminal 
Miscellaneous Application filed by the State of Gujarat. 
The effect of the order passed by the High Court is that 
the operation of the. report is kept in abeyance and 
F therefore no further action based on the said report could 
be initiated in whatsoever manner. In that view of the 
matter, such ad-interim order is not to be interfered with 
by this Court, in exercise of its jurisdiction under Article 
136 of the Constitution of India; [Para 1 O] [95-A-D] 
G 
H 
2. Interest of justice would be met if the main Writ 
Petition (Special Criminal application) itself is heard and 
disposed of alongwith the Criminal Miscellaneous 
Application filed by the State of Gujarat. In the meanwhile, 
SHAMIMA KAUSER v. UNION OF INDIA AND ORS. 
91 
the Investigating Team already constituted by the High 
A 
Court shall not deal with the report of the Magistrate in 
any manner whatsoever. The directions issued to the 
Registrar General (of the High Court) to make a detailed 
inquiry into the matter which led to holding of inquiry by 
the Magistrate under Section 176, CrPC is also set aside. 
B 
[Para 1 O] [95-D-G] 
3. The High Court is required to adjudicate the Writ 
petition (Special Criminal Application) on its own merits 
and shall consider the very maintainability of the Criminal 
C 
Miscellaneous Application filed by the State of Gujarat. 
[Para 11] [96-B-C] 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal 
No. 818 of 2010. 
From the Judgment & Order dated 9.9.2009 of the High 
Court of Gujarat at Ahmedabad in 'Misc. Criminal Application 
No. 10625 of 2009 in Special Criminal Application No. 822 of 
2004. 
WITH 
Crl. A. No. 819 of 2010. 
Kamini 

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