Sohrabuddin Sheikh, Kauser Bi and Tulsiram
Prajapathi- these names would not have got national significance, in ordinary
course of things. Ironically, their deaths, in alleged fake encounters
by the officials of Gujarat State Police, gave a fresh lease of life to their
names, continuing to send ripples of shock over the judiciary and the larger
canvass of Indian politics. The public discussions about Sohrabuddin case
gained momentum following the unprecedented press conference held by four
senior judges of Supreme Court last week, which is widely speculated(
reinforced by the admission of Justice Gogoi) to have been triggered by the
grievance regarding allocation of case of Judge Loya, who had died while
hearing Sohrabuddin case.
The Genesis of case.
On 26th November 2005, Sohrabuddin Sheikh was
gunned down by Gujarat Police near Ahmadabad. The police version was that he
was an associate of Lashkar-e-Toiba, who was planning to assassinate the then
Gujarat Chief Minister Narendra Modi. So the version was that when police tried
to intercept him, he opened fire and in the resultant exchange of fire he got
killed.
Rubabbuddin Sheikh, the brother of Sohrabuddin, was not
prepared to accept the police version. According to him, Sohrabbuddin and his
wife Kauser Bi were travelling from Hyderabad to Sangli(Maharshtra) in a bus on
23rd November 2005. During the journey, Gujarat police had picked up
Sohrabbuddin and his wife from bus in Maharshtra. Sohrabuddin was thereafter
brought to Ahmadabad and killed. The whereabouts of Kauser Bi was not known for
several months. In that backdrop, Rubabbuddin Sheikh approached the Supreme
Court, seeking investigation into the death of his brother. He also filed a
habeas corpus petition, seeking production of his disappeared sister-in-law,
Kauser Bi. It was also alleged that a third person was also travelling with
Sohrabuddin and Kauser Bi, who, according to Rubabbuddin was one Tulsiram
Prajapathi. As per records, Tulsiram Prajapathi was arrested from Ahmadabad on
25th November and was sent to Udaipur(Rajasthan) in connection with
a crime. It was alleged that Tulsiram Prajapathi was a witness to the abduction
and killing of Sohrabudding by Gujarat Police. Later, a year after
Sohrabuddin’s killing, Tulsiram Prajapathi was also killed, while he was being
brought to Udaipur to Ahamedabad on a transit warrant, in yet another
‘encounter’.
Handing over of
investigation to CBI
The Supreme Court gave anxious consideration to the
petitions, and was prepared to order production of the corpus of Kauser Bi.
While so, on 30th April 2007, the State of Gujarat filed a report in
the Court that Kauser Bi was dead and her body was burnt and disposed of in
Illol Village on 29th November 2005(three days after Sohrabuddin’s
death). The Court directed Geeta Johri, the head of the investigation team, to
file periodic status reports regarding the progress of investigation( Rubabbuddin Sheikh v. State of Gujarat (2007) 4 SCC 318,
Division Bench of Justice Tarun Chatterjee & Justice P.K Balasubramanyam).
Geeta Johri sought permission of the court to interrogate Tulsiram Prajapthi,
to explore his link with Sohrabbuddin murder. While Tulsiram Prajapathi was
being brought to Ahmadabad for interrogation, he got killed by Gujarat Police.
As per police version, he escaped during the journey, and later tried to open
fire at police officials.
Meanwhile, a charge sheet was hurriedly filed implicating
some officers of Gujarat ATS(Anti-Terrorism Squad). Rubabbuddin sought for CBI
enquiry to enquire into larger conspiracy. The Supreme Court expressed
dissatisfaction at the shoddy manner of investigation. Therefore, the Court
directed the Gujarat Police to hand over the investigation to the CBI(Rubabbuddin Sheikh v. State of Gujarat (2010) 2 SCC 200,
Division Bench of Justice Tarun Chatterjee & Justice Aftab Alam). In the charge sheet filed by CBI, the then
Gujarat Home Minister Amit Shah was arrayed as an accused, alleging that he was
the lynchpin of the conspiracy.
Amit Shah was arrested
in 2010. He was later released on bail as per the order of the Gujarat High
Court. The CBI approached the Supreme Court seeking cancellation of his bail.
The CBI also sought for transfer of trial of case outside Gujarat. The Supreme
Court recorded its dissatisfaction at the manner in which proceedings were
happening in Gujarat. The Court noted that the concerned Magistrate had adopted
a very strange procedure, when one of the accused(N.K Amin) expressed his
intention to turn approver under Section 306 of Cr.P.C. The Magistrate did not
pass any order on his application, and gave notice to other accused, in a
manner unknown to law. The delay caused in the process gave window of time to
other accused to pressurize and win over N.K Amin. The Court felt that the
state machinery was acting hand in glove with the accused, and that there was
strong likelihood of interference in the course of justice. So, trial was
transferred to Mumbai. As regards cancellation of bail of Amit Shah, Court
refrained from doing it, and observed as follows :- 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. ( CBI v.
Amitbahi Anil Chandra Shah (2012) 10
SCC 545, Division Bench of Justice Aftab Alam & Justice R.P Desai)
Tulsiram Prajapathi
Case
Meanwhile, Narmada
Bai, the mother of Tulsiram Prajapathi approached the Supreme Court seeking CBI
enquiry into her son’s death in encounter. Earlier, in the Rubabbuddin Case(2010) 2 SCC 200, the Supreme Court had discarded
the contention of Gujarat Police that the third unknown person picked up along
with Sohrabbuddin and Kauser Bi was not Tulsiram Prajapathi. In the said case,
the Court had made the following crucial observation :- It also appears from the charge - sheet that it identifies the third
person who was taken to Disha farm as Kalimuddin. But it does not contain the
details of what happened to him once he was abducted. The possibility of the
third person being Tulsiram Prajapati cannot be ruled out, although the police
authorities or the State had made all possible efforts to show that it was not
Tulsiram. In our view, the facts surrounding his death evokes strong suspicion
that a deliberate attempt was made to destroy a human witness.
The petition filed by
Narmada Bai was allowed, and the Court directed the CBI to take over the
investigation of the case relating to the murder of Tulsiram Prajapathi( Narmada Bai v. State of Gujarat (2011) 5 SCC 79, Division Bench of Justice P.
Sathasivam & Justice Dr. B. S. Chauhan). Following the directions of the
SC, the CBI filed a fresh FIR in Tulsiram Prajapathi case, and filed a charge
sheet arraying Amit Shah as the first accused.
Later, the FIR filed
by the CBI in Tulsiram Prajapathi was quashed by the Supreme Court, on the
ground that it amounted to registration of second FIR in respect to the same
transaction( Amitbhai Anil Chandra Shah v.
CBI (2013) 6 SCC 348).
Coincidentally, this judgment and the judgement in Narmada Bai case ordering CBI investigation were authored by
Justice P. Sathasivam. The judgment adopts a very strange reasoning that the
FIR in respect of Tulsiram Prajapathi case could not have been registered when
FIR in respect of Sohrabuddin case was already in existence. It was held that
the FIR in Tulsiram Prajapathi case amounted to second FIR in respect of
offence committed in the very same transaction in the FIR of Sohrabuddin
case. It was reasoned that Tulsiram
Prajapathi’s murder was a consequence of Sohrabuddin case, and hence both these
were a part of same transaction.
With due respect, it
is opined that this view expressed by the Surpeme Court is erroneous. It is a highly stretched application of the
rule of ‘no second FIR in offence of same
transaction’. It is to be borne in
mind that Tulsiram Prajapthi was killed in December 2006, almost a year after
Sohrabbuddin’s killing. The conspiracy to kill Tulsiram Prajapath was hatched subsequently and separately, and the
same was carried out in totally different circumstances. While it can be said
that there is linkage between Tulsiram case and Sohrabuddin case, as Tulsiram
was done away with the intention of eliminating a material witness of abduction
and killing of Sohrabuddin, these two murders cannot be said to have been carried
out as part of same transaction by any stretch of imagination. So, the quashing
of the FIR in Tulsiram case is on erroneous grounds. The Court said that the final report filed
in Tulsiram case should be treated as a supplementary charge sheet in Sohrabuddin
case.
The quashing of FIR in
Tulsiram case assumed a lot of relevance. Otherwise, Amit Shah would have been
forced to seek bail in Tulsiram case as well. Since the FIR was quashed, the
benefit of first bail granted in Sohrabuddin case worked in Tulsiram case as
well. This must have been a huge relief for Amit Shah, especially in view of
the fact that the election campaigns for the then impending 2014 polls were
gaining momentum. Justice Sathasivam, after retirement as the Chief Justice of
India, is at present the Hon’ble Governor of Kerala, with effect from September
2014. While it
is not proper to make imputations on Justice Sathasivam, the above developments
certainly create a cloud of doubt. Situations like this make one wonder whether
our judiciary is casual in ensuring that it does not conduct in such a manner
to raise doubts about its objectivity,
falling short of the sacrosanct rule that ‘caesers wife must be above suspicion’.
Judge Loya’s death
& Discharge of Amit Shah
The Supreme Court had ordered that the trial in Sohrabuddin
case (which included Tulsiram case as well, following above said judgment)
should be conducted by the same judge. But contrary to the directions, Judge
Utpat was transferred during pendency of proceedings. Judge B H Loya assumed
charge during June 2014. On 1st
December 2014, Judge Loya was reported to have died due to cardiac arrest,
while he was in Nagpur. In November 2017, ‘The Caravan’ magazine broke a story that the death of Judge Loya
happened in mysterious circumstances.
Amit Shah was given a discharge by the CBI Court on 30th
December 2014 on the ground that there was no evidence against him. During
August 2017, the accused police officers of Gujarat ATS were also discharged.
Puzzling inaction of
CBI to challenge the order of discharge
The CBI has not challenged the discharge of Amit Shah during
the past three years. Rubabbuddin Sheikh had filed a revision before the Bombay
High Court challenging the discharge. Later, he expressed his intention to
withdraw the revision and the same was dismissed as withdrawn(Order dated 23.11.2015
in Revision Application No.413/15).
However, the discharge was challenged by Harsh Mander, a
social activist and retired bureaucrat. But the Bombay High Court dismissed the revision on the ground that he had no locus standi to challenge the discharge.
Harsh Mander filed SLP against the Bombay High Court’s dismissal. The SLP was also dismissed by the Supreme Court. The inaction of the CBI to challenge the
discharge is quite puzzling. This was a charge sheet prepared on the basis of a
court-monitored investigation. In this regard, it is pertinent to note the
submissions of CBI in Rubabbuddin Case(2010,
supra) :-
It was submitted on its(CBI) behalf that Amitbhai Shah
presided over an extortion racket. In his capacity as the minister for Home, he
was in a position to place his henchmen, top ranking policemen at positions
where they could sub-serve 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 this Court and this
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 involvement in the killings of Sohrabuddin,
Kausarbi and Tulsiram Prajapati and systematically suppressed any honest
investigation into those cases and even tried to mislead this Court. Even after
the investigation was handed over to the CBI, he made things very difficult for
them and the CBI was able to do the investigation against great odds. It is
further submitted 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 inregular 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 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.
The CBI, which had hotly contended as above, is now in deep
slumber. It is not suggested that Amit Shah or other accused are guilty of the
above said allegations. But, the matter should get a proper closure, at least
to allay the doubts in the mind of common man regarding the matter. A relook by
a higher judicial forum is absolutely necessary in this matter. When a final
report prepared on the basis of a SC monitored investigation is discarded by
the Trial Court at the threshold level,
should not the investigating agency feel aggrieved? Instances like this
reinforce the rebuke that CBI is a ‘caged parrot speaking in his masters voice’. In a recent
development, Bombay Lawyer’s Association has filed a PIL in the Bombay High Court
seeking to direct CBI to file revision against discharge of Amit Shah.
Conflict of
interest by eminent lawyers?
The fake encounters gave rise to numerous
litigations at Apex Court. Senior Counsel Harish Salve was briefed to appear
for Rubabbuddin, as discernible from the records of (2007) 4 SCC 404. However, Salve appeared for Amit Shah in
2016, to oppose the petition of Harsh Mander. There is
an apparent conflict of interest in both the appearances. Harish Salve was
earlier appointed as amicus curie by
the Supreme Court for monitoring the investigation in the Gujarat riots case. Then also, there were complaints regarding his impartiality
as amicus, because he was simultaneously defending the Gujarat government in
the Ishrat Jahan encounter case.
Likewise, Senior Counsel Pallav Sisodia had
appeared for Amit Shah in the CBI’s petition filed in Supreme Court to cancel
his bail( CBI v. Amitbhai Anil Chandra Shah (2012) 10 SCC 545). Curiously, it is
Pallav Sisodia who is appearing in the present petition filed in the Supreme Court
seeking investigation into the death of Judge Loya, who died while hearing
Sohrabuddin case.
Live Law sought the responses of Harish Salve and
Pallav Sisodia as to whether there was any conflict of interest in their
appearances in above matters. Harish Salve was not available for response.
Pallav Sisodia responded by email denying any conflict of interest. The
response of Pallav Sisodia is given as below :-
“I shall
continue to appear in the matter of Judge Loya for petitioner Bandhuraj Lone to
press for an independent probe. As the matter is sub- judice and everyone shall
have opportunity to watch and report submissions in open court, I do not consider it appropriate to make further comment on the merits of the
matter.
As for suggestion of conflict of interest on my part, I am not able to understand the underlying premise. It appears a very convoluted logic to construe a prayer for an independent probe as an exercise for or against any of the suspects in the matter.
There is also one thought I would wish to share with discerning readers. In a recent interview, Obama says that in hyper times we live, democracy is not about rival points of view but your facts versus my facts. All those who entertain doubt about universe of facts you live in are suspects. All those who disagree with your facts are sinners.The need for truth cannot be underscored better in a noisy democracy.”
As for suggestion of conflict of interest on my part, I am not able to understand the underlying premise. It appears a very convoluted logic to construe a prayer for an independent probe as an exercise for or against any of the suspects in the matter.
There is also one thought I would wish to share with discerning readers. In a recent interview, Obama says that in hyper times we live, democracy is not about rival points of view but your facts versus my facts. All those who entertain doubt about universe of facts you live in are suspects. All those who disagree with your facts are sinners.The need for truth cannot be underscored better in a noisy democracy.”
Harish Salve had sounded critical of the press
conference made by the judges, and in his interview given to Republic TV
stated that it resulted in putting the entire system under a cloud. But, when
the conduct of eminent lawyers held in high esteem appears to be under cloud by
conflict of interest, the laments about the entire system being put under cloud
sound hollow.
Dent in constitutional values.
The allegations, if true, reveal a deep rot in the Indian
system. The extensive findings and observations made by the Supreme Court
regarding the nefarious methods adopted to stonewall and deflect investigation
and trial are shocking. It means that the cherished constitutional values of
justice, liberty, equality and fraternity are remaining frozen in the text of
constitution, and have not permeated into the social psyche to form a way of
life. Situations like this cause
disenchantment with the system so as to create a feeling of constitutional
nihilism. So, a proper dealing of the matter is necessary to redeem the
foundational values of Indian Republic. Till then, the ghosts of Sohrabbuddin,
Kauser Bi and Tulsiram Prajapathi will continue to haunt Indian judiciary and
polity. At least, their cases should get a decent burial!
Sohrabuddin –Tulsiram case time line
23.11.2005
|
Sohrabuddin, Kauser Bi and Tulsiram allegedly picked up by
Gujarat ATS from Maharshtra
|
25.11.2005
|
Tulsiram arrested in Ahmadabad and sent to Udaipur Jail
|
26.11.2005
|
Sohrabuddin shot dead in Ahmadabad, allegedly in a fake
encounter
|
29.11.2005
|
Kauser Bi killed, and cremated in Illol village, Gujarat
|
December 2005
|
Rubabbuddin Sheikh, brother of Sohrabbuddin, writes letter
to CJI seeking investigation into his brother’s death
|
27.12.2006
|
Tulsiram Prajapathi killed while he was being brought from
Udaipur to Gujarat for interrogation.
|
12.01.2010
|
Supreme Court directs CBI to take over investigation of
killing of Sohrabuddin; Transfers trial of matter from Gujarat to Mumbai
|
July 2010
|
CBI files charge sheet arraying Amit Shah as accused; Amit
Shah arrested
|
October 2010
|
Amit Shah granted bail by Gujarat HC
|
08.04.2011
|
Tulsiram Prajapathi case also handed over to CBI by SC.
|
September 2012
|
CBI files charge sheet in Tulsiram case, arraying Amit
Shah as one of the accused
|
08.04.2013
|
SC quashes the FIR registered by CBI against Amit Shah in
Tulsiram case;
|
01.12.2014
|
Judge Loya, presiding officer of CBI Court Mumbai dealing
with Sohrabuddin case, reported to be dead
|
30.12.2014
|
Amit Shah discharged in the Sohrabuddin case by CBI Court
Mumbai
|
2015
|
Rubabbuddin, brother of Sohrabuddin, files revision in
Bombay HC against discharge of Amit Shah
|
23.11.2015
|
Rubabbuddin withdraws his revision petition in Bombay HC
|
11.03.2016
|
Bombay HC dismisses Harsh Mander’s revision against
discharge on ground that he had no locus standi.
|
21.08.2016
|
Supreme Court dismisses Harsh Mander’s SLP
|
August 2017
|
Gujarat police officials discharged in Sohrabuddin case
|
November 2017
|
“The Caravan” magazine breaks a story that Judge Loya died
not in a cardiac arrest but in suspicious circumstances
|
January 2018
|
Petitions filed in Bombay HC and Supreme Court seeking
special investigation into Judge Loya’s death
|
19.01.2018
|
Bombay Lawyer’s Association files PIL in Bombay HC seeking
to direct CBI to file revision against Amit Shah discharge
|
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