The Supreme Court on Thursday dismissed a Writ Petition filed in the year 2009 by Himanshu Kumar, who claimed to be a tribal activist and 12 tribals who claimed to be relatives of victims of an alleged massacre that took place on September 17 and October 1, 2009, in Dantewada district of Chhattisgarh.

The Court dismissed the Writ Petition where the Petitioners were represented by Senior Advocate Colin Gonsalves and imposed a cost of ₹ 5 Lakhs on Himanshu Kumar and also allowed an application filed by the Union of India by asking the Chhattisgarh police or the CBI to take appropriate action against the Petitioners for conspiring to deter security agencies from acting against the Left Wing (Naxal) militia.

The Bench of Justice A. M. Khanwilkar and Justice J. B. Pardiwala observed that it was surprised that Colin Gonsalves was absolutely oblivious of the actions taken by the investigating agencies regarding the allegations of atrocities allegedly committed against tribals.

The Allegations against Armed Forces

The Petitioner had made the following major allegations against the Chhattisgarh Police, Special Police Officers (SPOs), the activists of Salwa Judum and the Paramilitary Forces consisting of the CRPF and the CoBRA Battalions, seeking CBI investigation and compensation to the alleged victims:-

  • The breast of a 70-year-old tribal woman was chopped off and was stabbed to death by police.
  • A 2-year-old infant was brutally murdered.
  • Tongue and other parts of the body, such as, the upper limbs, lower limbs, etc. of the family members of the Petitioners Nos.2 to 13 were chopped off by the security forces.
  • A Tribal was hanged upside down from a tree and a pot of oil was lit below and he was dropped into it.
  • Some persons were 'tied' and paraded by the police.
  • 19 people were killed by the security forces at the village Singaram, Tehsil Konta, District Dantewada on January 8, 2009.
  • 3 tribals were killed at Matwada, Salwa Judum Camp, District Bijapur, by the Chhattisgarh Police on March 18, 2008.
  • Massacre in Gompad village of Gachhanpalli on September 17, 2009.
  • Massacre in Belpocha village of Gachhanpalli on October 1, 2009.

Response of Authorities

The State of Chhattisgarh:-

  • Attacks on the police party by the Naxalites have been sought to be given the connotation of 'massacre'.
  • Police retaliated to firing by Naxalites and arms and ammunition were recovered and several police personnel were shot on September 16, 2009.
  • Security forces came under heavy firing by Naxalites on October 1, 2009. The complainants who gave complaints in a fixed, typed format were untraceable.
  • Incidents of September, 17 and of October 1, 2009 have brought untold misery on police personnel and several of them have lost their lives.
  • "It is denied that a woman had her breast cut-off and two year old infant was brutally murdered. Similarly it is also denied that blind man of 70 years old was executed".
  • Allegation of burning in hot oil is a concocted story and doctors have denied seeing such a burn case at all.
  • In an application before the Supreme Court, the Petitioners retracted the Hot Oil Theory stating that it was a mistake that took place during translations. It was then claimed that the alleged victim was burnt by electrocution by attaching wires to his head.
  • Though it is claimed in pleadings that Petitioner No.13's two-year-old grandchild was killed after chopping off the child's fingers, her statement recorded under orders of Supreme Court reveals that no such case was ever made out by Petitioner No. 13.
  • Allegation about tying and parading is false as when forces reached the village after repulsing the attack, no one was found and everybody had fled to the jungle.

The Cobra 201 Battalion:-

  • Naxalites often use civilians as human shield.
  • Naxalites themselves indulge in acts of terrorizing the locals to coerce them to join their movement.
  • Six brave commandos of CoBRA/SAF have lost their lives and their bodies were recovered only on September 19, 2009.
  • Regarding burning in hot oil, the troops of CoBRA/CRPF had neither conducted any operation at village Ondherpara.
  • Regarding Tying and parading, the allegation is totally false as no person was apprehended during the operation.
  • There are reports of murder and torture of innocent people by Naxalites to terrorize the masses and it has been informed by intelligence sources that Naxalites are seen in security force uniforms.
  • Regarding October 1, 2009 incident, troops retaliated to an ambush and the firing lasted for 20 minutes and Naxalites fled away from the ambush site carrying the injured.
  • No civilian or child was bodily harmed or tortured by Force personnel during the operations.

The Bench summarised the case of the Respondents including the Central Home Ministry thus- "All the averments made in the memorandum of the writ petition are ex facie false and fabricated. An attempt has been made to mislead this Court. False allegations have been levelled on the police and the paramilitary forces with a mala fide intention to change the narrative of the incidents, i.e. to portray the dreaded Left Wing Extremists (Naxals), who were waging an armed rebellion against the security forces of the country and threatening the sovereignty and integrity of the country, as innocent tribal victims being massacred by the security forces".

"In short, the case of the respondent is that the entire writ petition is nothing but a fraud played upon with the Court", the Court noted.

The Court was told that all the First Information Reports were thoroughly investigated and charge sheets have been filed in the concerned courts for different offences under the Indian Penal Code and other enactments. All the accused persons named in the charge sheets have been shown as absconding.

Solicitor General Tushar Mehta for the Union of India submitted before the Court that the "petition deserves to be rejected not only with exemplary costs, but each of the petitioners should be held guilty of levelling false charges of offence and of giving false and fabricated evidence before this Court with an intention to procure conviction for a capital offence or for life imprisonment against the personnel of security forces with a view to screen off the actual offenders of the Left Wing (Naxal) terrorism".

Supreme Court's Findings

The Court expressed surprise that the Senior Counsel Colin Gonsalves for petitioners was "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.."

"We are of the view, having regard to the materials on record, that no case, worth the name for further investigation or re-investigation, could also be said to have been made out", the Court held.

The Court held that the filing of the charge sheets would indicate that the alleged massacre was at the end of the Naxalites (Maoists). The Court found that the materials collected in the form of the charge sheets substantiate the case put up by the respondents that the villagers were attacked and killed by the Naxalites. "There is not an iota of material figuring in the investigation on the basis of which even a finger can be pointed towards the members of the police force", the Court held.

"Unfortunately, neither the learned senior counsel appearing for the writ petitioners nor any of the writ petitioners, more particularly, the writ petitioner no.1, the protagonist behind the filing of the present writ petition, running an NGO, has any idea about the charge sheets and the materials collected in the course of the investigation", the Court observed.

The Court held that the statements of Petitioner Nos.2 to 13 recorded before the Judicial Officer in Delhi pursuant to the order of the Supreme Court demolishes the entire case put up by Petitioner No.1.

Supreme Court's Directions

The Court dismissed the Writ Petition with a cost of Rs. 5,00,000/- to be paid by Petitioner No.1 Himanshu Kumar. The Court also allowed an application filed by the Union of India seeking an investigation by CBI/NIA or any other agency to identify the individuals or/organizations who have been conspiring, abetting and facilitating the filing of petitions premised on false and fabricated evidence with a motive to either deter the security agencies to act against the Left Wing (Naxal) militia by imputing false charges on them or to screen off the Left Wing (Naxal) militia from being brought to justice by creating a false narrative of victimization before the Courts.

After considering the law on the subject elaborately, the Court directed thus- "..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".

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Justice AM KhanwilkarJustice JB PardiwalaNaxalism

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