IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO. OF 2018
IN THE MATTER OF ARTICLE 226
OF THE CONSTITUTION OF
INDIA;
AND
IN THE MATTER OF ARTICLE 14
OF THE CONSTITUTION OF
INDIA;
AND
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IN THE MATTER OF ILLEGAL,
ARBITRARY AND MALAFIDE
INACTION ON THE PART OF THE
RESPONDENT NO. 1 IN
CHALLENGING ORDER DATED
30/12/2014 PASSED BY SPL.
JUDGE, CBI IN DISCHARGE
APPLICATION (EXHIBIT-232) IN
SESSIONS CASE NOS. 177/2013,
178/2013, 577/2013 & 312/2014.
Bombay Lawyers’ Association,
a body registered under the provisions
of the Society Registration Act, 1860,
having its office at
2A, Ground Floor, Commerce House,
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140, Nagindas Master Road, Fort,
Mumbai-400001
PAN No: AACAB1244J
Email: [email protected]
Tel No.: 22690016/17 ... Petitioner
Versus
1. Central Bureau of Investigation
BI, 13th Floor, Plot No. C-35A,
'G' Block, Bandra Kurla Complex (BKC),
Near MTNL Exchange, Bandra (East),
Mumbai 400098
Through its Joint Secretary, Zone-I
2. Administrative Committee of
the Bombay High Court
Through The Registrar General
High CourtExtension Building,
Mumbai – 400032 ... Respondents
TO,
THE HON’BLE CHIEF JUSTICE
AND COMPANION HON’BLE JUDGES
OF BOMBAY HIGH COURT
OF JUDICATURE AT BOMBAY
HUMBLE PETITION OF THE
PETITIONERS ABOVENAMED
MOST RESPECTFULLY SHEWETH:
1. That the Petitioner states the Petitioner is a body of advocates and
it is registered under the Societies Registration Act, 1860.The
Respondent Nos. 1 is the Central Bureau of Investigation
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(“CBI”), the prosecuting agency in Sessions Case Nos. 177/2013,
178/2013, 577/2013,312/2014 before the Special Judge, CBI,
Mumbai. Respondent No. 2 is the RegistrarGeneral of this
Hon’ble Court. Both the Respondents are ‘State’ within the
meaning of Article 12 of the Constitution.
2. That the instant Petition is being filed challenging illegal,
arbitrary and malafide inaction of the Respondent No. 1 in
challenging the Judgment and Order dated 30/12/2014 passed by
the Special Judge, CBI, Mumbai in Discharge Application
(Exhibit-232) filed by Amit Anilchandra Shah in Sessions Case
Nos. 177/2013, 178/2013, 577/2013 and 312/2014. This Petition
also challenges the decision of the Administrative Committee of
this Hon’ble Court of transferring the Special Judge, CBI,
Mumbai Shri J.T. Utpat whom the said cases were originally
assigned, in contravention of Order dated 27/09/2012 passed by
Hon’ble Supreme Court. The Respondent No.1 is the premier
investigating agency of India. It has public duty to observe rule of
law in its action which it has miserably failed. The present
petition is being filed to protect public trust and confidence in the
Respondent No. 1. Hence, this Petition may be treated as Public
Interest Litigation.
3. The Petitioner states that it is established by a group of advocates
practicing at Bombay High Court with the primary purpose to
undertake activities facilitating improvement in the quality of
legal services. It also aims to strive for judicial reforms bringing
efficiency and transparency in the functioning of courts by
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involving people outside the confines of the legal profession.
Some of the main objectives of the BLA read as under:
- To uphold rule of law, promote higher values in legal
profession and to preserve and protect independence of
judiciary.
- To strive for improvement in the institution of judiciary
i.e. bar as well as the bench, for attainment of justice
economic, political and social through constitutional
means.
4. The Petitioner states that forthe first time the Petitioner organized
a function to celebrate "National Law Day" on November 26,
2012, at Mumbai. People from all walks of life participated in the
event. Shri K. Sankaranayanan, Governor of Maharashtra was the
Chief Guest and the Chief Justice of this Hon’ble Court Shri
Mohit S. Shah presided over the function. In the year 2013 Justice
B.N. Srikrishna,former Judge, Supreme Court of India was the
Chief Guest at “National Law Day”. In the year 2014 former
Union Law Minister and Sr. Advocate Mr. Ram Jethmalani, was
the Chief Guest. Justice J.N. Patel, former Chief Justice of
Calcutta High Court presided over “National Law Day” function.
The Petitioner had filed a PIL seeking direction from this Hon’ble
Court for celebration of National Law Day by the government and
educational institutions. In pursuance to same, vide Notification
No. F. No. 19022/11/2015-VI (E) dated 19/11/2015, Government
of India decided to celebrate 26th day of the November as
‘Constitution Day’ to promote constitutional values among
citizens. It is now being celebrated all over India by the
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governments, as well as bar and courts.Taking into consideration
the problem faced by the judges, court staff, advocates and
litigants on account of scarcity of space in the present High Court
building which in 150 year old, the President of the Petitioner
organization. Mr. Ahmad Abdi hasfiled a PIL for new High Court
building with adequate infrastructure in line of Supreme Court
and Delhi High Court. The same was taken up by this Hon’ble
Court and various directions were issued from time to time. Now,
State Government has allotted land for construction of new High
Court building at Bandra Colony, Bandra East, Mumbai and has
promised to the construct the same while redeveloping the
Government Colony, Bandra. The PIL is still pending before this
Hon’ble Court.
5. That the Petitioner states that keeping in view its objectives, the
Petitioner has continued its activities by way of organizing
seminars, symposiums, debates, conferences, workshops and
other like events for the benefit of the legal fraternity which are as
follows:
o Seminar on "RTI Act in Practice and Supreme Court
Judgment: Problems and Prospects". Justice A.P. Shah,
former Chief Justice Delhi High Court, Mr. Shailesh
Gandhi, former Central Information Commissioner, spoke
on the occasion.
o "Study Circle" at the Government Law College (GLC),
Mumbai, for upgrading skills of advocates particularly
young advocates considering the ever-increasing number
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of new laws, various amendments in the existing laws and
judgments of High Court and the Apex Court with
emphasis on practical aspects.
o Seminar on "Use and misuse of power to arrest by the
police: Threat to personal liberty". Senior Advocates, Mr.
Ram Jethmalani, Mr. Shrikant Bhat, Mr. Amit Desai and
Mr. Ashok Mundargi, spoke on the subject. Hon'ble Mr.
Justice S.C. Dharmadhikari, Judge Bombay High Court
presided over the function.
o Publishing a magazine "LAWNAMA" which contain
articles written by advocates, judges and other prominent
persons on various aspects relevant for improvement of the
system dispensation of justice.
o Seminar on "Judicial Standard and Accountability Bill,
2010" on February 21, 2014 at Mumbai. Justice A.P. Shah,
former Chief Justice of Delhi High Court and presently
Chairman of Law commission of India and Sr. Counsel of
Bombay Mr. AspiChinoy spoke on the occasion.
6. The factual matrix ofthe present Petition is as under:
7. In November 2005, one Sohrabuddin Shaikh, alleged Lashkar-e-
Toiba operative and his wife Kausarbi were killed in an encounter
by Gujarat Police. It was alleged that the said encounter was fake.
8. In December 2006, one Tulsiram Prajapati, an eye witness to the
said alleged encounter was also killed in an encounter in Chapri
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Village in Banaskantha District of Gujarat. Various Petitions were
filed in the Hon’ble Supreme Court challenging the encounter the
said Sohrabuddin.
9. By the In 12thJanuary 2010, the Hon’ble Supreme Court directed
the CBI to investigate the case relating to the killings of
Sohrabuddin and his wife Kausarbi. On 23rd July, 2010,CBI filed
Charge-Sheet naming Mr. Amit Shah, the then Home Minister of
Gujarat now national president of BJP and 18 others including
several police officers, as Accused. Vide its order dated 27th
September 2012, the Hon’ble Supreme Court transferred trial of
the case from Gujarat to Mumbai. The observations made by the
Hon’ble Supreme Court regarding prevailing facts and
circumstances are worth noting. Hereto annexed and marked as
Exhibit-“A” is a copy of said judgment and order dated
27/09/2012.
10. As observed by Hon’ble Supreme Court, the order (directing the
CBI to investigate the killings of Sohrabuddin and his wife
Kausarbi) came to be passed after the proceedings regarding to
those killings had gone on for over four years, initially on the
basis of two letter petitions and subsequently under the Writ
Petition (Crl.) No. 6 of 2007 (Rubabbuddin Sheikh v. State of
Gujarat). At the beginning, the State of Gujarat stoutly and
vociferously denied that the encounter in which Sohrabuddin was
killed was stage-managed and it was only later that it came
around to accept that it was actually so and his wife Kausarbi too
was killed while she was in illegal police custody and her body
was disposed of in a manner as to make it untraceable. Some sort
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of an investigation was made by Gujarat Police and a charge-
sheet was submitted on 16-7-2007 against thirteen (13) persons
who were members of the Anti-Terrorist Squad, Gujarat Police
and the Special Task Force, Rajasthan Police.
11. On behalf of the writ petitioner (Rubabbuddin Sheikh, the brother
of the slain Sohrabuddin), however, it was submitted that the
charge-sheet was deceptive and was designed more to cover up
rather than uncover the entire conspiracy behind the murder of
Sohrabuddin and his wife. It was pointed out that Gujarat Police
had completely ignored the killing of Tulsiram Prajapati in a
similar police encounter one year after the killing of Sohrabuddin
who was killed simply because he was a witness to the abduction
of Sohrabuddin and his wife by the police party. On 30/9/2008 the
Hon’ble Supreme Court was informed that following the
submission of the charge-sheet, even as the matter was under the
scrutiny of Supreme Court, the case was hurriedly committed and
the trial court had fixed the hearing on the charge on a day-to-day
basis. The Supreme Court on that date stayed further proceedings
in said Sessions Case No. 256 of 2007 and directed for the records
of the case to be put in the safe custody of the Registrar General
of the Gujarat High Court.
12. In further proceedings before Supreme Court, the State of Gujarat
took the stand that all that was required to be done was done in
the matter and there was nothing more for Supreme Court to do. It
was argued on behalf of the State that with the submission of the
charge-sheet Supreme Court's power and authority to monitor the
investigation came to an end and the case came under the
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exclusive jurisdiction of the Magistrate/trial court who would
proceed further on the basis of the charge-sheet submitted by the
police.
13. Howevr, Supreme Court felt otherwise. It appeared to the
Supreme Court that there were a number of aspects of the case,
including the killing of Tulsiram Prajapati that were not addressed
at all by Gujarat Police. The State of Gujarat, however, continued
to maintain that the killing of Tulsiram Prajapati in the police
encounter had no connection with the killings of Sohrabuddin and
his wife. That being the position taken by the State it was but
natural for the State Police not to investigate any linkages
between the killings of Sohrabuddin and his wife on the one hand
and the killing of Tulsiram Prajapati on the other.
14. Among the number of reasons that weighed with the Supreme
Court to ask CBI to investigate into the killings of Sohrabuddin
and his wife, even after the submission of charge-sheet by Gujarat
Police, was the trenchant refusal by the State of Gujarat and the
State Police to see any connection between the killings of
Sohrabuddin and his wife and the killing of Tulsiram Prajapati. In
the order dated January 12, 2010 by which the investigation of the
case was entrusted to CBI, the Court commented upon the
persistent effort to disconnect the Prajapati encounter from the
killings of Sohrabuddin and his wife. Further, recounting the
many deficiencies in the investigation by Gujarat Police, the
Supreme Court also noticed its omission to analyse the call details
of the accused that “so far as the call records are concerned, it
would be evident from the same that they had not been analysed
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properly, particularly the call data relating to three senior police
officers either in relation to Sohrabuddin's case or in Prajapati's
case.”
15. In light of the above and a number of other acts of omission and
commission as appearing from the eight action-taken reports
(submitted in the course of hearing of the writ petition) and the
Gujarat Police charge-sheet, the Supreme Court asked CBI to
investigate the killings of Sohrabuddin and his wife Kausarbi,
giving the following directions:
“82. Accordingly, in the facts and circumstances even
at this stage the police authorities of the State are
directed to hand over the records of the present case to
the CBI Authorities within a fortnight from this date
and thereafter the CBI Authorities shall take up the
investigation and complete the same within six months
from the date of taking over the investigation from the
State Police authorities. The CBI Authorities shall
investigate all aspects of the case relating to the
killing of Sohrabuddin and his wife Kausarbi
including the alleged possibility of a larger
conspiracy. The report of the CBI Authorities shall be
filed in this Court when this Court will pass further
necessary orders in accordance with the said report, if
necessary. We expect that the Police Authorities of
Gujarat, Andhra Pradesh and Rajasthan shall cooperate
with the CBI Authorities in conducting the
investigation properly and in an appropriate manner.”
Hereto annexed and marked as Exhibit-“B” is a copy of said
judgment and order dated 12/01/2010
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16. As directed by the Supreme Court, the CBI took up the
investigation into Sohrabuddin case after instituting a fresh FIR
on 01/02/2010. In the call records of the accused that had not been
worked out in the hands of Gujarat Police, CBI claimed to have
found a valuable source of important clues. On the basis of the
call records, the statements of the witnesses and other materials
collected by it, CBI claimed that it has unearthed a conspiracy of
much larger proportions. It submitted a charge-sheet on
23/07/2010 in which, in addition to the thirteen accused named in
the charge-sheet of Gujarat Police, another 6 persons were also
named as accused, being part of the larger conspiracy. In the
charge-sheet submitted by CBI, one of the accused was Amitbhai
Shah, who till then was the Minister of State for Home in the
State Government. The accusation against Amitbhai Shah was
that he was the lynchpin of the conspiracy.
17. Following the submission of the charge-sheet by CBI, on
25/07/2010, Amitbhai Shah was arrested and was sent to judicial
custody. Since, the Supreme Court had asked CBI to investigate
all aspects of the case relating to the killings of Sohrabuddin and
his wife Kausarbi, including the possibility of a larger conspiracy.
CBI, therefore, felt that it was both authorised and under the
obligation to investigate Prajapati case as well, as it prima facie
appeared to be integrally connected with Sohrabuddin case.
Gujarat Police, however, did neither hand over the records of
Prajapati case to CBI nor allow it to make any independent
investigation in Prajapati case. On the contrary, Gujarat Police
purported to complete its investigation and, like the case of
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Sohrabuddin, rather hurriedly filed the charge-sheet in the case on
30/07/2010, followed by a supplementary charge-sheet on
31/07/2010, before the Judicial Magistrate, First Class, Danta,
Banaskantha District. The Magistrate, equally quickly committed
the case to the Court of Session in two days' time on 02/08/2010
even without a proper compliance with the provisions of Section
207 of the Code of Criminal Procedure.
18. According to the said charge-sheet, Prajapati was indeed killed in
a fake encounter but there was nothing more to it than that. There
was no attempt to investigate any larger conspiracy or to try to
connect it with Sohrabuddin case. On the other hand, the whole
effort was to present it as a separate case, quite unconnected with
the case of Sohrabuddin.In the meanwhile, Amitbhai Shah was
granted bail by the Gujarat High Court, by order dated 29/10/2010
passed in Criminal Miscellaneous No. 12240 of 2010. Against the
order passed by the High Court, CBI immediately went to the
Supreme Court in SLP (Crl.) No. 9003 of 2010, giving rise to the
Criminal Appeal No. 1503/2012, seeking cancellation of bail
granted to Amitbhai Shah. On 30/10/2010 notices were issued to
Amitbhai Shah and the State of Gujarat. At the time of issuance of
notice, on the prayer made on behalf of CBI to stay the operation
of the bail order passed by the High Court on the ground that once
released on bail the accused would tamper with prosecution
evidence, it was stated on behalf of Amitbhai Shah that he would
leave Gujarat the following morning and would stay out of the
State till further orders that may be passed by the Supreme Court.
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19. On 25/11/2010 CBI submitted a copy of its final report before the
Supreme Court.
20. On 13/01/2011 CBI filed the Transfer Petition (Criminal) No. 44
of 2011for transfer of Sohrabuddin case bearing Special Case No.
5 of 2010 pending in the Court of the Additional Chief
Metropolitan Magistrate, CBI, Mirzapur, Ahmedabad, titled CBI
v. D.G. Vanzara to the CBI Court in Mumbai or any other State
and for a further direction for the constitution of a Special Court.
21. While passing orders in said transfer petition, the Supreme Court
took a brief look at Prajapati case i.e. Writ Petition (Criminal) No.
115 of 2007 before it. It noted that in the first counter-affidavit
filed in Prajapati case, the State took the stand that the petition
filed under Article 32 of the Constitution was not maintainable
because a case was already registered with the police according to
which the son of the writ petitioner was killed in a police
encounter. It was contended that the writ petition filed in
Sohrabuddin case was for a writ of habeas corpus and it was for
that reason alone that it was entertained by the Supreme Court.
There was no such angle in the Prajapati case. In the counter-
affidavit it was further stated that Tulsiram Prajapati was a
dreaded criminal, involved in 21 criminal cases. As to the manner
of his death, the counter-affidavit reiterated and fully supported
the police version as stated in the two FIRs relating to his alleged
escape from the police custody while being taken back after court
remand and his death in a police encounter on the following day.
It was pointedly denied that Tulsiram Prajapati was a witness in
Sohrabuddin case. It was asserted that there was no connection in
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the two cases. However, by the time the writ petition came up for
hearing, another affidavit was filed on behalf of the State of
Gujarat on 19/08/2010. In that affidavit it was conceded that
Tulsiram Prajapati was killed in a fake encounter. It was,
however, submitted that the State, CID (Crime) had already filed
a charge-sheet in the case. It was further the stand of the State that
the encounter killing of Tulsiram Prajapati had nothing to do with
the killings of Sohrabuddin and Kausarbi.
22. Thus, the Supreme Court noted,that Prajapati case also followed
exactly the same pattern as the case of Sohrabuddin. Initially,
there was a complete denial by the State that he was killed in any
kind of a fake encounter. But, when it became impossible to deny
that the story of the encounter was false, an investigation was
swiftly made by Gujarat Police and charge-sheet was submitted.
On the basis of the charge-sheet, on the one hand an attempt was
made to proceed with and conclude the trial proceedings as
quickly as possible and on the other hand the Supreme Court was
told that after the submission of the charge-sheet it was denuded
of the authority to direct any further investigation. There was,
thus, clearly an attempt not to allow the full facts to come to light
in connection with the two cases. Further, in Prajapati case the
State insisted till the end that though he too was killed in a fake
encounter there was no connection between his killing and the
killings of Sohrabuddin and his wife Kausarbi.
23. Prajapati case (Writ Petition (Criminal) No. 115 of 2007) came up
before the Supreme Court and it was allowed by the judgment and
order dated April 8, 2011. The Supreme Court debunked the
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contention that there was no connection between the killings of
Sohrabuddin and Kausarbi and the killing of Tulsiram Prajapati
(paras 47 to 60 of the judgment) and also rejected the claim of the
State Government that the investigation made in his case was
complete and satisfactory. It directed the State Government to
hand over the investigation of Prajapati case as well, to CBI.
24. In pursuance of the Supreme Court's direction, CBI investigated
Prajapati case and submitted the charge-sheet on September 4,
2012. In the Prajapati charge-sheet Amitbhai Shah and a number
of very senior police officers of the State are cited as accused.
25. The submissions made by the CBI before the Supreme Court in
support of the prayers for cancellation of bail and transfer of the
case, which were substantially the same, it was submitted on
behalf of the CBI that “Amitbhai Shah presided over an extortion
racket”. It was further submitted that in his capacity as the
Minister for Home, Amitbhai Shah was in a position to place his
henchmen, top ranking policemen at positions where they could
subserve and safeguard his interests. He was part of the larger
conspiracy to kill Sohrabuddin and later on his wife and finally
Tulsiram Prajapati, as he was a witness to the abduction of
Sohrabuddin and his wife by the police party. Taking advantage
of his position as the Minister, he constantly obstructed any
proper investigation into the killings of Sohrabuddin and Kausarbi
even when the matter came to the notice of the Supreme Court
and Supreme Court issued directions for a thorough investigation
into their killings. It was at his behest and under his pressure that
the top ranking police officers tried to cover up all signs of his
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involvement in the killings of Sohrabuddin, Kausarbi and
Tulsiram Prajapati and systematically suppressed any honest
investigation into those cases and even tried to mislead the
Supreme Court. Even after the investigation was handed over to
CBI, he made things very difficult for them and CBI was able to
do the investigation against great odds.
26. It is further submitted by CBI that the phone records pertaining to
the periods when Sohrabuddin and his wife were abducted,
Sohrabuddin was killed and his wife was killed and her body was
disposed of by burning and of the later period at the time of
killing of Prajapati showed Amitbhai Shah in regular touch with
the policemen, accused in the case, who were actually executing
the killings and the other allied offences. There was no reason for
the Minister for State of Home to speak directly on phone to the
police officers, far below him in the chain of command and the
explanation given on his behalf in regard to those phone calls was
on the face of it false and unacceptable. Apart from the phone
records, there were many other materials and incontrovertible
circumstances to establish the charges against Amitbhai Shah.
27. It was submitted that Amitbhai Shah's release on bail and
permission to freely stay in Gujarat would greatly jeopardise the
efforts of CBI to bring home the charges against him. Even after
his arrest and while in jail, he had sufficient resources and
influence to tamper with the evidence and to intimidate the
prosecution witnesses. It was contended that allowing the
Amitbhai Shah to enjoy the privilege of bail and further to let him
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stay in Gujarat would have a very debilitating effect on the
prosecution case.
28. Eventually, the Supreme Court rejected Criminal Appeal seeking
cancellation of Amitbhai Shah’s. However, observation made by
the Supreme Court regarding the issue is worth noting. The
Supreme Court observed, “…. we are not inclined to cancel the
bail granted to Amitbhai Shah about two years ago. Had it been
an application for grant of bail to Amitbhai Shah, it is hard to say
what view the Court might have taken but the considerations for
cancellation of bail granted by the High Court are materially
different and in this case we feel reluctant to deprive Amitbhai
Shah of the privilege granted to him by the High Court.”
However, considering the apprehension expressed by CBI that
Amitbhai Shah may misuse the freedom and try to subvert the
prosecution, the Supreme directed that Amitbhai Shah shall give
an undertaking in writing to the trial court that he would not
commit any breach of the conditions of the bail bond and would
not try to influence any witnesses or tamper with the prosecution
evidence in any manner. It further direct that Amitbhai Shah will
report to CBI office every alternate Saturday at 11.00 a.m. It was
further made clear that the grant of bail to Amitbhai Shah in
Sohrabuddin case shall have no effect in Prajapati case and in that
case whether Amitbhai Shah is to be kept in judicial custody or
granted bail would be decided by the Court on the basis of the
materials on record of that case and without taking into
consideration the grant of bail to him in Sohrabuddin case. The
Supreme Court furthermade it clear that the grant of bail to
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Amitbhai Shah in Sohrabuddin case shall be no consideration for
grant of bail to the other accused in that case and the prayer for
bail by the other accused in Sohrabuddin case shall be considered
on its own merits.
29. The Supreme Court also made it clear that “In case Amitbhai
Shah commits any breach of the conditions of the bail bond or the
undertaking given to the Court, as directed above, it will be open
to CBI to move the trial court for cancellation of his bail. In that
case, if the allegations pertain to the period posterior to this order,
the trial court shall examine the matter carefully and take an
independent decision without being influenced by this order
declining to cancel the bail granted to him.”
30. In the said judgment, the Supreme Court noted the episode of one
of the accused, N.K. Amin whose petition under Section 306 of
the Code of Criminal Procedure for grant of pardon and for being
considered as an approver was kept pending for long
time;inaction on complaint of Smt Jayshree Amin, the wife of
N.K. Amin alleging threats to her husband's life in Sabarmati Jail
which was duly forwarded by CBI to the ACJM; and eventually
petition by said N.K. Amin requesting the ACJM not to pass any
order on his application under Section 306 (Ext. 8) and Section
164(5) (Ext. 49) wherein he made the complaint that on his
application under Section 306 the court did not pass any order but
delayed the matter by giving the other accused time for filing their
objection.
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31. The Supreme Court noted that besides the above, there are other
instances also appearing from the proceedings in Sohrabuddin
case due to which the Supreme Court had reasons not to feel
entirely happy at the way the courts below dealt with the matter.
The Supreme Court also referred to para 29 of its judgment in
Nahar Singh Yadav v. Union of India (2011) 1 SCC 307which
laid down certain conditions for a case to be transferred outside
the State. The same reads as under: -
“29. Thus, although no rigid and inflexible rule or test
could be laid down to decide whether or not power
under Section 406 CrPC should be exercised, it is
manifest from a bare reading of sub-sections (2) and
(3) of the said section and on an analysis of the
decisions of this Court that an order of transfer of trial
is not to be passed as a matter of routine or merely
because an interested party has expressed some
apprehension about the proper conduct of a trial. This
power has to be exercised cautiously and in
exceptional situations, where it becomes necessary to
do so to provide credibility to the trial. Some of the
broad factors which could be kept in mind while
considering an application for transfer of the trial are:
(i) when it appears that the State machinery or
prosecution is acting hand in glove with the
accused, and there is likelihood of miscarriage of
justice due to the lackadaisical attitude of the
prosecution;
(ii) when there is material to show that the accused
may influence the prosecution witnesses or cause
physical harm to the complainant;
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(iii) comparative inconvenience and hardships likely
to be caused to the accused, the complainant/the
prosecution and the witnesses, besides the burden
to be borne by the State exchequer in making
payment of travelling and other expenses of the
official and non-official witnesses;
(iv) a communally surcharged atmosphere, indicating
some proof of inability of holding fair and
impartial trial because of the accusations made
and the nature of the crime committed by the
accused; and
(v) existence of some material from which it can be
inferred that some persons are so hostile that they
are interfering or are likely to interfere either
directly or indirectly with the course of justice.”
After referring to said paragraphand conditions laid down by
Nahar Singh Supra, the Supreme Court observed as under: -
“We find that the conditions at Serial Nos. (i), (ii), (iii)
and (v) are squarely attracted in this case.”
32. Accordingly, the Supreme Court directed for the transfer of
Special Case No. 5 of 2010 pending in the Court of the Additional
Chief Metropolitan Magistrate, CBI, Courtroom No. 2, Mirzapur,
Ahmedabad titled CBI v. D.G. Vanzara to the Court of CBI,
Bombay. The Registrar General of the Gujarat High Court was
directed to collect the entire record of the case from the Court of
the Additional Chief Metropolitan Magistrate, CBI, Room No. 2,
Mirzapur, Ahmedabad and to transmit it to the Registry of the
Bombay High Court from where it was to be sent to a CBI Court
as may be decided by the Administrative Committee of the High
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Court. The Administrative Committee would assign the case to a
court where the trial may be concluded judiciously, in accordance
with law, and without any delay. The Administrative Committee
would also ensure that the trial should be conducted from
beginning to end by the same officer.
33. CBI filed charge-sheet in Tulsiram Prajapati case on 04/09/2012.
Vide judgment and order dated 08/04/2013 directed that said
charge-sheet be treated as supplementary charge-sheet in
Sohrabuddin case and both cases were clubbed together. Hereto
annexed and marked as Exhibit-“C” is a copy of said judgment
and order dated 08/04/2013.
34. The said cases were originally assigned Shri J.T. Utpat, Special
Judge, CBI, Mumbai. However, in June 2014, he was transferred
to Pune and replace by another Judge Shri B.H. Loya. The said
act of transferring the judge, hearing Sohrabuddin case was in
direct breach of the order dated 27/09/2013 passed by the
Supreme Court. Therefore, it is just, necessary and proper that this
Hon’ble Court be pleased to call for the minutes of
Administrative Committee of this Hon’ble Court wherein decision
to transfer the Judge Shri J.T. Utpat was taken to ascertain
whether the same was just, reasonable and proper.
35. Shri Amit Anilchandra Shah filed Application for Discharge
(Exhibit-232) under Section 227 of the Code of Criminal
Procedure, 1973 in said cases. In the night of 30/11/2014 or early
morning of 01/12/2014, Shri B.H. Loya, Spl. Judge, CBI,
Mumbai reportedly died from cardiac arrest. Later, certain section
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of media, relying upon the revelations by family members of late
B.H. Loya reported that the circumstances surrounding the death
of late B.H. Loya are suspicious. The Petitioners have filed
separate Petition seeking constitution of a Commission of Enquiry
headed by retired Supreme Court judge to investigate the events
and circumstances surrounding the death of Judge late B.H. Loya.
36. On 30/12/2014, the incumbent judge, Shri M.B. Gosavi, Special
Judge, CBI, Mumbai allowed Application for Discharge (Exhibit-
232) moved by the Shri Amit Anilchandra Shah. Hereto annexed
and Marked as Exhibit-“D” is a copy of said Order dated
30/12/2014.
37. Respondent No. 1,CBI, which was contenting before the Supreme
Court that Shri Amit Shah was running an extortion racket, that
he was lynchpin in the conspiracy, that on the basis of call records
it has unearthed much larger conspiracy, that that the phone
records pertaining to the periods when Sohrabuddin and his wife
were abducted, Sohrabuddin was killed and his wife was killed
and her body was disposed of by burning and of the later period at
the time of killing of Prajapati showed Amitbhai Shah in regular
touch with the policemen, accused in the case, who were actually
executing the killings and the other allied offences, and that apart
from the phone records, there were many other materials and
incontrovertible circumstances to establish the charges against
Amitbhai Shah,and accepting which contentions the Supreme
Court then transferred said cases from Gujarat to Mumbai, had
surprisingly chose not to challenge said order dated 30/12/2014
discharging Amit Shah.The brother of the Sohrabuddin,
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Rubaudding had challenged said order before this Hon’ble Court
by way of Criminal Revision Application alongwith Delay
Condonation Application. However, in November 2015, said
proceeding was withdrawn by Rubauddin for the reason best not
to him.
38. According to CBI, had incontrovertible material and
circumstances to establish the charges against Amitbhai Shah
which were accepted by the Supreme Court while deciding the
Transfer Petition (Crl.) No. 44/2011. According to CBI’s own
contention, Shri Amit Shah was lynchpin in the conspiracy which
was much larger than a simple case of purported unconnected
fake encounters.By discharge of Shri Amit Shah, entire case of
CBI of larger conspiracy which it was contending before the
Supreme Court would fall flat.
39. Section 227 of the Code of Criminal Procedure, 1973 provides for
discharge of an accused for the reason of absence of sufficient
ground for proceeding against him.The final report alongwith
records of the case was produced by the CBI before the Supreme
Court. The same was considered and accepted by the Supreme
Court while passing the order for transfer of the case. Records of
the case discussed in said judgment clearly establishes that there
was sufficient ground to proceed against Shri Amit Shah. As
such, order dated 30/12/2014 passed by the trial judge was clearly
erroneous. The CBI ought to have challenge said order before this
Hon’ble Court.
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40. The trial court has similarly discharged two Rajasthan police sub-
inspectors Himanshu Singh and Shyam Singh Charan and senior
Gujarat police officer N.K. Amin. The Petitioner has learnt that
CBI has challenged their discharge before this Hon’ble Court.
This act of CBI of challenging discharge of the accused persons
on selective basis is arbitrary and unreasonable, rather malafides.
In this connection, it is pertinent to note that said N.K. Amin had
earlier mode Petitions under Section 306 and 164(5) of the Code
of Criminal Procedure before the ACJM, Mirzapur, Gujarat. The
act of CBI of selective challenge of discharge of N.K. Amin
appears to be out of vindictiveness for his earlier act of moving
petitions u/s. 306 and 164(5) of CrPC.
41. The Petitioner had addressed a representation dated 16/01/2018 to
the Respondent No. 1 seeking to initiate appropriate steps for
challenging said order dated 30/11/2014 passed by Special Judge,
CBI, Mumbai before appropriate forum. However, nothing is
heard from them till date. Hereto annexed and marked as Exhibit-
“E” is a copy of said Representation dated 16/01/2018.
42. There iscatena of judgments of this Hon’ble Court and Hon’ble
Supreme wherein it was held that arbitrariness in antithesis to the
rule of law. The Petitioner organisation was formed with solemn
objective “to uphold rule of law”. As such the Petitioner is filing
the present Petition challenging the inaction on the part of the CBI
in challenging the order dated 30/12/2014 passed by Ld. Special
Judge,CBI, Mumbai on Exhibit-232 in Sessions Case Nos.
177/2013, 178/2013, 577/2013,312/2014. This Petition is filed in
public interest.
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43. That in the circumstances, it is just, proper, necessary and proper
and in the interest of justice that this Hon’ble Court be pleased to
issue a writ of mandamus or a writ in the nature of mandamus or
any other appropriate writ, order or direction directing the
Respondent No.1, CBI to file criminal revision application or any
other appropriate proceeding challenging the order dated
30/12/2014 (Exhibit-“D”) passed by Ld. Special Judge, CBI,
Mumbai on Exhibit-232 in Sessions Case Nos. 177/2013,
178/2013, 577/2013, 312/2014 thereby discharging Shri Amit
Anilchandra Shah from the case. It is also just, necessary and
proper and also in the interest of justice that this Hon’ble Court be
pleased to direct the Respondent No. 2 to produce the minutes of
Administrative Committee of this Hon’ble Court wherein decision
to transfer the Judge Shri J.T. Utpat(patently in breach of order
dated 27/09/2012 passed by the Supreme Court in Transfer
Application (Crl.) No. 44 of 2011) was taken to ascertain whether
the same was just, reasonable and proper.
44. That the Petitioner has not filed any other Petition in any High
Court in India or in the Hon'ble Supreme Court in the respect of
the subject matter of this Petition.
45. That in the circumstances, the Petitioner has no efficacious
remedies except approaching to this Hon'ble Court in its writ
jurisdiction. The relief’s prayed for if granted will suffice to meet
the ends of justice. The Petitioner has filed this petition without
any delay.
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46. That the Petitioner is having its office in Mumbai. The
Respondents are having their respective offices in
Mumbai.Impugned order in respect of which writ of mandamus is
sought was passed by the trial court in Mumbai. Therefore, this
Hon'ble Court, therefore, has jurisdiction to entertain and decide
the present Petition.
47. That the present Petition is being filed by way of Public Interest
Litigation and the Petitioner do not have any personal interest in
the matter.
48. That the entire litigation cost including the advocate’s fee and
other charges are being borne by the Petitioner.
49. That to the best of the Petitioner’s knowledge and research, the
issue raised was not dealt with or decided and that a similar or
incidental petition was not filed earlier by it.
50. That the petitioner has understood that in the course of hearing of
this petition the court may require any security to be furnish
towards costs or any other charges and the petitioner shall have to
comply with such requirements.
51. There is no Civil Criminal or revenue Litigation involving
Petitioner which could have a legal nexus with the issues involved
in this PIL.
52. The Petitioner has paid fix Court fees of ₹ 250/-
53. The Petitioners will rely upon documents a list whereof is
annexed hereto.
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54. The present Petition is filed through Shri Ashok Asthana, the
governing council member and authorized representative of the
Petitioner.
55. The Petitioner, therefore, humbly prays that:
(a) That this Hon’ble Court be pleased to issue a writ of
mandamus or a writ in the nature of mandamus or any
other appropriate writ, order or direction directing the
Respondent No.1, CBI to file criminal revision application
or any other appropriate proceeding challenging the order
dated 30/12/2014 (Exhibit-“D”) passed by Ld. Special
Judge, CBI, Mumbai on Exhibit-232 in Sessions Case Nos.
177/2013, 178/2013, 577/2013, 312/2014 thereby
discharging Shri Amit Anilchandra Shah from the case;
(b) That this Hon’ble Court be pleased to direct the
Respondent No. 2 to produce the minutes of
Administrative Committee of this Hon’ble Court wherein
decision to transfer the Judge Shri J.T. Utpat (patently in
breach of order dated 27/09/2012 passed by the Supreme
Court in Transfer Application (Crl.) No. 44 of 2011) was
taken to ascertain whether the same was just, reasonable
and proper;
(c) That such other and further relief as the nature and
circumstances of the case may require.
Petition drawn by me;
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Advocate for the Petitioner Petitioner
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VERIFICATION
I, ASHOK ASTHANA, aged 62 years, an adult, Indian inhabitant of
Mumbai, the authorised having my address at 2A, Ground Floor,
Commerce House, 140, Nagindas Master Road, Fort, Mumbai –
400001the authorised representative of the Petitioner abovenamed, do
hereby solemnly declare that whatever is stated in paragraphs No.1 to 5,
41, 43&45 to 53of the Petition is true to my own knowledge and
whatever is stated in remaining paragraphs No.6 to 42 and 46 of the
Petition is stated on information and beliefs and I believe the same to be
true.
Solemnly declared at Mumbai )
On this _____ day of January 2018 )
Identified by me Before me;
Advocates for the Petitioner
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