- Despite SC order that the same trial judge who starts hearing the case should conclude it, Sohrabuddin case has seen three judges
- One year after being assigned the trial in the CBI special court, J.T. Utpat was transferred in June 2014
- Utpat’s successor Brijmohan Loya died at a government guesthouse in Nagpur on November 30, 2014
- Loya’s successor M.B. Gosavi heard Amit Shah’s discharge petition from December 15-17, and delivered a 75-page order on December 30, 2014
- Dropping of charges against Shah has led to a flurry of discharge petitions being filed by other accused
The tantalising phrase “somewhat opposed to common sense” is likely to ring in the ears of BJP national president Amit Anilchandra Shah for a long time to come. The five words were uttered on the penultimate day of 2014 by a trial judge in a CBI special court in Mumbai to let Shah, 50, off the hook in the infamous Sohrabuddin Sheikh fake encounter case.
Dasrath Patel and Raman Patel, two builders from Ahmedabad produced as star witnesses against Shah by the Central Bureau of Investigation (CBI), had told investigators that police officers close to Shah extorted money from them and had dispatched Sohrabuddin’s henchmen to issue threats. The officers, notably Abhay Chudasama and D.G. Vanzara—both now on bail, Chudasama reinstated by the Gujarat government—would not only drop Shah’s name but even make extortion targets speak to the all-powerful minister of state (home) on phone. Shah, they claimed, had also directed them to be discreet while giving statements on Sohrabuddin Sheikh to the CBI after the central agency was ordered by the Supreme Court in 2010 to investigate the case.
The builders had video-recorded one of the conversations they had with Shah’s officers. They gave three statements to the CBI, two under Section 161 of the CrPC and the other under Section 164. (Statements under Section 161 are given to the police and are not accepted as evidence; statements under Section 164 are recorded before a judge and are admissible evidence.)
The CBI special court of M.B. Gosavi, however, refused to accept the builders’ statement, recorded in court. The duo, noted Gosavi in his order on December 30, 2014, had not deviated even grammatically in the three statements, each of which were recorded after gaps of weeks and months. This he found “somewhat opposed to common sense” as he threw out their testimony. Many lawyers say such exact reproductions of statements often dog trials, forcing judges to disregard them as evidence as they seem tutored. This is what seems to have happened here and shows the prosecution may have failed to build the case. Gosavi, however, contradicts himself in the same order by claiming the builders had made ‘improvements’ in the statements. To accept both arguments, quipped a prominent Supreme Court lawyer, would be ‘somewhat opposed to common sense’ indeed.
Gosavi also found no merit in the CBI producing Call Detail Records to show that, on the days Sohrabuddin Sheikh and his wife Kauserbi were abducted and subsequently killed in 2005, Shah was in regular touch with the police officers who were executing the deed. The CBI came up with details of the outgoing and incoming calls including the duration in seconds (see graphic) to suggest Shah knew what was happening on the ground. While a home minister is expected to give directions to the dgp and home secretary, CBI argued, there was no occasion for him to be in touch with SPs and DySPs. But the CBI court chose to accept Shah’s plea that phone calls proved nothing. He was a proactive, hands-on minister and liked to be in direct touch with field officers, the court was told by his counsel. The trial judge found merit in the submission and held that while the CBI was at liberty to think a powerful minister directly calling field officers was unusual and strange, actually there was no reason to question such conduct when terrorism stalked the world.
“The discharge is arbitrary as there’s prima facie evidence to frame charges. SC accepted CBI’s submissions. The order casts doubt on that as well.”
Mihir Desai, lawyer, Mumbai
The argument can cut both ways though, because, if one accepts that Shah was an effective minister in constant touch with field officers and who kept his eyes and ears open all the time, surely he would have been aware of fake encounters taking place right under his nose. For, had not Gujarat police conducted its own investigation and found the officers guilty of killing Sohrabuddin Sheikh, his wife Kauserbi and prominent eyewitness Tulsiram Prajapati in fake encounters? In two separate chargesheets, filed in 2007 and 2008, Gujarat police claimed the trio was killed because the officers wanted “name, fame and promotion”. The SC, which had directed the state police to conduct the investigation, remained unconvinced. Pointing out discrepancies in reports submitted to the SC and the chargesheets, the apex court ordered a CBI inquiry in 2010 and directed the agency to probe the “larger conspiracy” and the involvement of ‘high officials of the state of Gujarat’.
Trashing the voluminous chargesheet (22,000 pages, including statements from 710 prosecution witnesses) against 38 accused, including Shah, Gosavi, in his discharge order, held the case was foisted on Shah for ‘political reasons’. Since then, he has discharged two other accused top cops, P.C. Pande and Rajkumar Pandyan, from the case, raising questions about the role of the CBI as well as the judiciary.
One For Sorrow, Three For Joy
Brijmohan H. Loya (52) looked forward to a relaxed weekend as he boarded a train at Mumbai for Nagpur. He had taken charge of the Sohrabuddin fake encounter trial as a judge in July; subsequent months were stressful. He looked forward to attending a wedding at Nagpur the next day, November 30, 2014, a Sunday. He planned to stay overnight at the state government guesthouse, Ravi Bhavan, and return to the court on Tuesday. But he did not wake up on Monday morning, having succumbed apparently to a massive cardiac arrest. The news of his sudden death shocked and saddened lawyers and judges in Mumbai; the Indian Express (Dec 2, 2014) reported that “sources close to him (Loya) said he had sound medical history”. Advocate Vijay Hiremath remembered him as an exceptionally cheerful judge who had looked fit and fine.
As the judge was cremated in his native Latur, in faraway New Delhi a group of MPs demonstrated outside Parliament against his “mysterious death” and demanded a CBI probe. The event only found cursory mention on the inside pages of newspapers. The day after, on December 4, in a letter addressed to the Chief Justice of India from Ujjain, Sohrabuddin Sheikh’s brother Rubabuddin (see box) wrote: “I am disturbed by the incident and am in a deep state of shock. I am writing the present letter on suspicion that the untimely death of a sitting judge of a sessions court may be part of a larger conspiracy, possibly made with intention to threaten the coming judge....”
The court was dismissive of his suspicions, but the farmer from Ujjain, who had been relentlessly pursuing justice for nine years, felt he saw a pattern: five months before, in June 2014, he had been upset to get news that the Bombay High Court had transferred J.T. Utpat, the first judge holding the trial, to Pune. Rubabuddin had voiced concern in a letter to the Bombay HC administrative committee, seeking his recall, and drawing attention to the fact of the SC’s express injunction that one and the same judge should start and finish the trial. But Utpat, who began hearing the case in May 2013, lasted barely over a year; just a month after the NDA swept to power at the Centre, he was transferred; and now even his successor, Loya, was dead.
During the CBI court’s hearings that Utpat presided over for this one year, or even after, court records suggest Amit Shah had never turned up even once—including on the final day of discharge. Shah’s counsel apparently made oral submissions for exempting him from personal appearance on grounds ranging from him being “a diabetic and hence unable to move” to the more blase: “he is busy in Delhi”.
On June 6, 2014, Utpat had made his displeasure known to Shah’s counsel and, while allowing exemption for that day, ordered Shah’s presence on June 20. But he didn’t show up again. According to media reports, Utpat told Shah’s counsel, “Every time you are seeking exemption without giving any reason”. And fixed the next hearing for June 26. But on 25th, he was transferred to Pune. The registrar-general of the Bombay High Court told the media that Utpat had sought the transfer because his daughter was studying in Pune. In his letter, Rubabuddin requested the Bombay HC chief justice to recall Utpat. In a belated response on August 28, the registrar-general wrote that though his request had been placed before the administrative committee of three high court judges on July 23, “the committee did not see any reason to revoke” the transfer.
Utpat’s successor Loya was indulgent, waiving Shah’s personal appearance on each date. But significantly, one of his last notings stated that Shah was being exempted from personal appearance “till the framing of charges”. Loya had clearly not harboured the thought of dropping charges against Shah even when he appeared to be gentle on him.
“The discharge shows that CBI selectively made some accused, others witnesses depending on which officers agreed to toe their line.”
S.V. Raju, Shah’s lawyer
Loya’s successor, Gosavi, assigned the trial on December 4, clearly had other ideas. He took up Shah’s discharge petition first of all, heard his lawyers on two consecutive days (Dec 15-16), followed by counsel for the CBI. Less than a fortnight later, on December 30, just a month after his predecessor had died in Nagpur, Gosavi dropped all charges against Shah.
Shah, like any other accused, was entitled to file a discharge petition so that he did not have to go through the ordeal of a trial, but such petitions are entertained rarely by trial courts, say some eminent jurists. And for good reason, because “it is often not possible to weigh all the evidence before the trial”. What shocked them even more was the swift disposal of the petition after the highest court of the land had gone through the evidence and found a ‘larger conspiracy’ behind the fake encounters. Gosavi had chosen to interpret this as a political conspiracy against Shah. Charges are framed on suspicion and convictions are based on proof, points out a Supreme Court lawyer. The trial is meant to examine all the evidence on record and subject witnesses to cross-examination in order to unearth inconsistencies in statements and facts. It is rare for a judge therefore to discharge the accused even before the trial.
The CBI can challenge the order and file a revision petition before the high court, where its appeal may lie for several years. By the time such preliminary issues like disposing of discharge petitions are finally settled, joked a lawyer, divine justice could come into play.
A Call From Delhi
In early 2013, a Supreme Court judge put through a call to a senior judge of the Bombay High Court. The apex court had shifted the Sohrabuddin case out of Gujarat in 2012 because of doubts voiced by the CBI. Concerned about a thorough and fair trial, the apex court judges wanted the Bombay HC to ensure that an upright judge was assigned the trial. Judges are assigned to trial courts by administrative committees of the HC. Such committee comprise three senior judges, presided over by the chief justice. Here, the chief justice recused himself from the meeting that assigned the Sohrabuddin case to J.T. Utpat, recalls a prominent lawyer. The Supreme Court judges who shared the information with him, he recalls, spoke glowingly about the conduct of the chief justice, who hailed from Gujarat and probably thought it prudent to keep himself away.
The lawyer claimed to be shocked, therefore, that under the same chief justice, the HC transferred Utpat to Pune even before the trial started. Or, he argued, the court possibly felt that since charges were yet to be framed, technically the trial was yet to begin. And that it was within its jurisdiction to entertain a ‘personal request’ from the judge for a transfer.
But with the SC having stated clearly that it wanted the same judge to hold the entire trial, the HC would have been expected to seek the apex court’s advice on the transfer request. A retired Supreme Court judge, asked if the HC was bound to inform the apex court of such transfers, icily replied that while there were no “written rules”, “no high court will do it under these circumstances”. Well, the Bombay High Court did.
Mohit S. Shah has been the Bombay HC chief justice since June 2010, and is one of its longest serving CJs. Indeed, between 2000 and 2010, as many as eight chief justices presided over the court before Shah was sworn in. In an unprecedented decision, however, the SC collegium ‘unanimously’ decided in early 2013 that elevation of three chief justices, including Shah, would be counter-productive to the administration of justice. A Hindustan Times report of March 17, 2013, said that the then Chief Justice of India Altamas Kabir had written to the government: “The collegium has unanimously taken the view that they are not suitable to hold the office of Supreme Court judge and their elevation...would prove to be counter-productive and not conducive to administration of justice. The collegium has not recommended the names of these three chief justices for good reasons and after taking into consideration all relevant factors, including their merit, ability and seniority....” The other two affected by the decision were Bhaskar Bhattacharya, chief justice of the Gujarat HC, and Barin Ghosh, chief justice of the Uttarakhand HC. Both have retired since.
CBI Brought In Too Late
It was the conduct of the Gujarat police that raised suspicion that they were trying to hide something. When Sohrabuddin was killed in November 2005, they initially claimed he was a Lashkar-e-Toiba terrorist sent to assassinate political leaders. The “terrorist” was travelling to Ahmedabad from Surat when he was intercepted and asked to surrender; but he opened fire on the police and died in the encounter that followed, stated the closure report. In January 2007, the SC directed the case to be investigated again under its monitoring. Gujarat dgp P.C. Pande stalled it for six months before initiating an inquiry in June. By the end of the year, though, state police had come round to accept that Sohrabuddin was abducted from Andhra Pradesh in a joint operation with AP Police. Later, it told the SC that Andhra Police had denied any involvement in the operation and that it was Gujarat policemen who had killed Sohrabuddin to gain “name, fame and promotion”. In 2008, in one of the eight Action Taken Reports submitted to the Supreme Court, Gujarat police conceded that Sohrabuddin’s ‘missing wife’ Kauser Bi had also been killed in a fake encounter and her body taken to village Illol and burnt.
This change in approach to the case coincided with the demand for a CBI inquiry, which was being vehemently opposed by Gujarat. A battery of senior lawyers—from Ram Jethmalani and Mukul Rohatgi, the present attorney general of India, to U.U. Lalit, now an SC judge—represented Gujarat and argued the Supreme Court had no jurisdiction to order a CBI inquiry after investigation had been completed and chargesheets filed. A fair inquiry had been conducted, the SC was told, and policemen found guilty would be tried.
“Amit Shah told us in Gujarati that Sohrabuddin had himself closed the option of keeping himself alive...equations we would not understand.”
Dasrath Patel, Prosecution Witness No. 67
It appeared a little odd however that IPS officers would travel to Hyderabad to indulge in their desire for fame and promotion by killing criminals. There could not have been a dearth of criminals in Gujarat itself. Sohrabuddin was apparently unarmed. He and his wife, the apex court was told, were driven back to Ahmedabad and taken to a farmhouse on the outskirts of the city. They were then killed separately. Why was it so important to keep them alive for 48 hours?
The plea for a CBI probe remained pending in the SC till 2010 when the apex court overruled objections and brought in the central agency into the picture. The apex court noted that Gujarat police had not carried out narco tests on the accused policemen even after the sessions court had allowed it. Although state police submitted eight action taken reports, the Supreme Court noted, “there are large and various discrepancies in such reports and the investigation conducted by the police authorities of the state of Gujarat and also the chargesheet filed by the state investigating agency cannot be said to have run in a proper direction.”
In September 2012, the SC observed that while entertaining CBI’s plea for transferring the trial outside Gujarat, “Gujarat police would neither hand over records to the CBI nor allow it to make any independent investigation in the Prajapati case”. Tulsiram Prajapati is believed to be the third person travelling in the bus with Sohrabuddin Sheikh and his wife. But while the CBI concluded that it was indeed Prajapati and therefore he was a key witness in the Sohrabuddin case, Gujarat police stoutly and consistently claimed that the two cases were unconnected, first because Prajapati was lodged in a Rajasthan jail and secondly because he was killed in December 2006, a year after the fake encounter of Sheikh and his wife.
Curiously, in this case also, the Gujarat police initially claimed that Prajapati had been brought to Ahmedabad in December 2006 and produced before a court. While being escorted back to Rajasthan in a train, his accomplices hiding in the toilet threw chilli powder in the eyes of the policemen and escaped with him. The very next morning, however, the police caught up with him on the highway and he died in an exchange of fire.
But by 2010 Gujarat police made a complete U-turn and declared that Prajapati too was killed in a fake encounter. A chargesheet was filed on July 30, 2010, and a supplementary chargesheet the very next day. The SC noted: “The magistrate equally quickly committed the case to the court of sessions in two days’ time on August 2, 2010, even without proper compliance with the provisions of section 207 of the Code of Criminal Procedure.” The Supreme Court was also piqued by the fact that even after conceding that Prajapati was killed in a fake encounter, the Gujarat government continued to maintain that there was no connection between this fake encounter and the earlier one in which Sohrabuddin Sheikh and his wife were killed. The CBI felt otherwise and pointed out that Prajapati had also written to the collector of Udaipur and to the NHRC that there was a threat to his life and that he would be killed during remand or transit and that is exactly how he died.
Was There A Supari Given?
Why did Sohrabuddin die? While the CBI produced a witness statement that Amit Shah had allegedly said that Sohrabuddin had “lost the reason (justification) to live”, it still begs an answer. Why would a team including three IPS officers travel to Hyderabad, put up in the guesthouse of the National Police Academy before checking out the next morning? Surely their tour would have been approved by someone? While the team had specific information on their prey’s movement (according to information shared with the Supreme Court, Prajapati may have been instrumental in leading the policemen to him) and knew exactly which luxury bus he was travelling in, they did not nab him at the bus stand in Hyderabad. Nor did they inform Andhra Pradesh police. They followed the bus at a discreet distance before stopping the bus at Zaheerabad. Statements of passengers recorded by the CBI hold that policemen boarded the bus, went straight to seat nos 29 and 30 and asked the two men to get down. Sohrabuddin’s wife was asked to stay back in the bus but she refused, insisting on following her husband.
Sohrabuddin and his wife and Prajapati, his brother claimed, were seen off at Indore bus stand by family members and it was known to them that the couple would stay with one Kalimuddin in Hyderabad. From Hyderabad they were to travel to Sangli apparently on a pilgrimage.
Significantly, the last crime for which Sohrabuddin was apparently wanted by the police was an incident in the office of Popular Builders, owned by the Patel brothers at Navrangpura, in 2004. Someone had opened fire in the reception. There was no casualty in the incident and the FIR was lodged against unknown miscreants. The receptionist who lodged the FIR did not name anyone and the builders later claimed that henchmen of Sohrabuddin had fired in the air to create panic and terrorise them for extortion. Even Gujarat police later claimed that the firing involved one Sylvester and Prajapati. What was Sohrabuddin doing between 2004 and November 2005? Could the police team have been sent to Hyderabad a year after the ‘firing’ to nab Sohrabuddin? As it is, it is difficult to believe that policemen would take the risk of going into another state in search of ‘name, fame and promotion’. There is another side to it: at the time, there was a hysteria and paranoia built around chief minister Modi that assassins were out to kill him.
The CBI came up with an alternative narrative. The agency suggested that the policemen were close to MoS (Home) Amit Shah, who was the “lynchpin of an extortion racket”. It is hinted by the agency that Sohrabuddin was in the payroll of these police officers and did their bidding. But either he became too greedy and demanding or he started blackmailing the policemen, forcing the latter to eliminate him. Kauserbi and Prajapati, it is suggested, were killed because they were eyewitnesses to the abduction of Sohrabuddin and could have incriminated the policemen.
Or did Sohrabuddin know too much? Judges and lawyers Outlook spoke to hinted darkly that even after nine years, three investigations and the CBI chargesheet, there are still wide gaps in the case. Many of them seem convinced that the Sohrabuddin case can be traced back to the assassination of a politician in Gujarat. But where is the connection and the evidence? And so much time has passed by.
The most important question yet to be answered in the jigsaw puzzle is whether Amit Shah, then minister of state (home) in Gujarat, knew about the fake encounters, approved them or whether he helped in the cover-up? But while Shah and the BJP feel vindicated by proceedings in the trial court, they will find it difficult to allay suspicion that the all-powerful, hands-on Shah had no inkling of what was happening right under his nose. The fact that some of the country’s best known lawyers defended not just Shah but also some of the policemen accused in the case, and the alacrity with which the state government reinstated them in service, strengthen the suspicion even more.
Admittedly, the minister did not pull the trigger. He probably never met Sohrabuddin Sheikh. There is no direct evidence linking him to the fake encounters. Perhaps there cannot be any. Nor was he present at the site. He obviously did not sign an order approving the operation. And to be fair to him, he had himself offered to remain out of the state while the CBI investigated the case. It was easy therefore for him and the galaxy of lawyers defending him to cry foul and say that the previous UPA government had framed him due to political considerations.
But on the other hand, there is an overwhelming mountain of what judge Gosavi would describe as ‘hearsay’ to hint at a different kind of role. A senior Supreme Court lawyer put it in perspective. “In criminal cases, we very often find a mastermind pulling strings, planning the operation and hiring killers to eliminate people. Husbands, friends, business partners have all done it in the past and have been punished.” Under the law, he added, the person ‘giving the supari’ is as guilty as the man who pulls the trigger.
DIG Vanzara’s Letter, September 2013
The letter from the DIG, then in prison, to the Additional Chief Secretary admitting to fake encounters as state policy: “the place of this govt should either be in Taloja Central Prison or in Sabarmati Central Prison… this government has been reaping rich dividends by keeping the glow of encounter cases alive…”
DIG Rajnish Rai’s Submission Before CAT, 2009
His Annual Confidential Report (ACR) was downgraded from ‘very good’ to ‘average’ after he arrested policemen, including Vanzara. The Sohrabuddin case was withdrawn from him the day after he sought permission to conduct narco tests. He was advised to put down notings only after consultations with ‘seniors’ and not before a ‘consensus’ was reached.
Forensic Report In Prajapati Encounter, 2007
Gujarat police claimed Prajapati’s accomplices threw chilli power on cops in the train compartment and escaped with him. Forensic experts found no trace of chilli powder. Possibility of Inspector Ashish Pandya’s injury being self-inflicted was not ruled out. One of the bullets fired at the police was from a police revolver.
DGP P.C. Pande’s Conduct, 2007
The state’s top cop needed three reminders from the SC before initiating an investigation in Sohrabuddin case. Issued written directions that probe team should include Chudasama and N.K. Amin, both later arrested by Gujarat police. Pande told Rajnish Rai that Amit Shah wanted to see case diaries and packed him off to Delhi the day after he arrested the IPS officers.
DSP N.K. Amin’s Plea To Turn Approver, 2010
Arrested by the CBI, Amin filed a plea in July 2010 to become an approver. The magistrate passed no order but issued notices to the other accused seeking their objections. On August 21, Amin’s wife alleged threats to her husband’s life in Sabarmati jail. On January 18, 2011, Amin withdrew his offer. SC noted the magistrate had adopted a procedure ‘unknown to law’.
By Uttam Sengupta with Prachi Pinglay-Plumber in Mumbai, Anuradha Raman in Delhi and K.S. Shaini in Bhopal