Mihir Desai, advocate for Sohrabuddin in Mumbai

In December, 2005 Rubabuddin Shaikh wrote a letter to the Chief Justice of India complaining about the killing of his brother Sohrabuddin and the disappearance of his sister in law Kauser Bi at the hands of the Gujarat Police, the Anti Terrorism Squad (ATS) and the Rajasthan Police.  The Court forwarded the letter to the Director General of Police for an enquiry. During the pendency of the enquiry Tulsiram Prajapati, a witness to the abduction of Sohrabuddin and his wife Kauser Bi was, also  killed in an encounter (extra-judicial killing). Rubabuddin approached the Supreme Court seeking a CBI investigation.

The Supreme Court first asked the Gujarat Police to investigate the matter. Certain police officers (prominently, Vanzara), were arrested. Charge sheets were filed and eight Action Taken Reports were produced before the Supreme Court by the State of Gujarat. Unsatisfied, the Supreme Court in 2010 came to the following conclusion:

“From the above factual discrepancies appearing in the 8 Action Taken Reports and from the Charge Sheet we therefore feel that the Police Authorities of the State of Gujarat had failed to carry out fair and impartial investigation as we initially wanted them to do."

The Supreme Court directed the CBI to carry out the investigation including on the issue of a larger conspiracy. The CBI started investigating the case and, on the basis of call records of the police officials and other evidence, submitted a chargesheet on 23.7.2010 in which Amit Shah was named as a co-conspirator. The chargesheet states that Amit Shah was the lynchpin in the conspiracy. Amit Shah was arrested. On 29.10.2010 Amit Shah was granted bail by the Gujarat High Court, The CBI appealed to the Supreme Court against this order. The bail was not cancelled but Amit Shah was asked to not enter Gujarat.

In its charge sheet, the CBI claimed that Amit Shah presided over an extortion racket and that it was under his pressure and at his behest that the Gujarat police tried to cover up his involvement in the killings. Phone records of the police officials at the time of killings of Sohrabuddin, Kauser Bi and Tulsi Prajapati were used to show that these police officers were in constant touch with Amit Shah. The trial was transferred to Mumbai.

Subsequently, Amit Shah filed a Discharge Application in the Sessions Court at Mumbai. The evidence that the prosecution had (CBI) was damning. G.C Raigar, Additional Director General of Police (ADGP) Home Guard, Gujarat who had the  Additional Charge of ADGP CID Crime, and was in charge of the  investigation into the case, had stated that Amit Shah personally told him not to involve high level police officials in the crime. Obviously if high level police officials were not involved, the link to Mr. Shah could not be established. The Patel brothers of Popular Builders, whose statements were also recorded, have stated that Amit Shah personally told them to give a false statement against Sohrabuddin and that they paid a large amount of money to a senior police officer for being paid to Mr. Shah so as to ensure that they are not falsely implicated in a crime.
There were also the call records between Amit Shah and the officers involved in the murder, during the killings. There were certain other allegations too against Mr. Shah.

It was the CBI’s investigation which led to his arrest and to the transfer of the case outside Gujarat…… Shockingly however, it chose not to challenge the order of the Sessions Court.

However, it was now 2014 and, by now the CBI had decided to do a U turn. The case was not effectively defended in the Sessions Court.  The Sessions Court discharged Amit Shah on 30.12.2014. According to me, there is sufficient material against Mr. Shah to put him on trial. It was the CBI’s investigation which led to his arrest and to the transfer of the case outside Gujarat. At the stage of discharge the Court is not required to weigh the evidence in detail. The Court is only required to see whether it is a fit case for proceeding on trial. CBI had found it a fit case to proceed on trial  by filing the charge sheet. In fact, ordinarily the CBI would have challenged the discharge order of the Sessions Court in the High Court – more so in a sensitive case like this where it had been appointed by the Supreme Court as the Investigating Agency and the trial had been transferred at the instance of the CBI due to the involvement of Amit Shah.

Shockingly however, it chose to not challenge the order of the Sessions Court. 

Rubabuddin,  Sohrabuddin’s brother challenged the order in the High Court.  He was the person who had brought the case to light 10 years ago by writing to the Supreme Court. He had diligently followed it up in the Supreme Court and in the Sessions Court for all these years. Suddenly, within months after filing against the discharge, he decided to withdraw the case from the High Court. I am reasonably certain that this was due to extreme pressure brought on him. I can never forget the terror in his eyes and the helplessness when he did it. The question still remains. Why did the CBI not adequately defend the case in the Sessions Court and why did it refuse to file an appeal. Is it the caged parrot syndrome?

SOHRABUDDIN CASE FILE

(The author  is a senior advocate in Mumbai)
 
References:

The post CBI U-Turn against its own chargesheet in the Sohrabuddin case, the caged parrot syndrome? appeared first on SabrangIndia.

• On 25.07.2010, Amit Shah, then minister of state for home in Gujarrat (accused number 16 in the case) was arrested by the CBI. He was holding the charge of Minister of State (Home Affairs) in the Government of Gujarat till the time of his arrest.
• By its order dated 08.04.2013, the Supreme Court of India has clubbed the case of Sorabuddin and Tulsi Prajapati murder. Amit Shah was also the accused in the case of killing of Tulsi Prajapati.
• On 29.10.2010 the Gujarat High Court released Amit Shah on bail.

According to the original Charge sheet filed by the CBI in the Sohrabuddin case, the following facts are pertinent:

• On 26.11.2005 Sohrabuddin Shaikh was murdered and shown as if he was Laskar-e-Toiba terrorist killed in an encounter. Kauserbi, wife of Sohrabuddin was murdered on 29/30.11.2005 and her body was disposed off.
• Tulsiram Prajapati was a significant eye witness to the abduction of Sohrabuddin and Kauserbi by the accused policemen of Gujarat Police.
• On 27.12.2006 Tulsi Prajapati who was in custody and was being escorted from Ahmedabad to Udaipur, was alleged to have escaped from the custody of the escort party.
• On 28.12.2006 Tulsiram Prajapati who was secretly and wrongfully confined by two unknown persons was brought to the scene of crime in a handcuffed position in a white colouredMaruti car, and after Tulsiram Prajapati was made to alight from the said car, accused Aashis Pandya murdered him in cold blood by firing twice at him from his service revolver.

The CBI first filed the charge sheet against the accused No. 16, Amit Shah under the sections 120-B r/w 302,201,218,167,365,506 Indian Penal Code and Section 25(1B-a) Arms Act, 1959. Amit Shah, named as accused number 16 then sought discharge from this case.
In October 2015 Sohrabuddin first told the Bombay High Court that he did not wish to go ahead with his petition challenging the discharge. Before this, in the special Sessions Court itself,  his lawyers had filed detailed written  arguments laying down why Amit Shah’s application for discharge ought to be rejected. The crucial points in the written arguments placed before the Court were:

A.        There is enough prima facie material in the charge sheet against the Accused No. 16 regarding his (Amit Shah’s) involvement in the killing of Sohrabuddin, Tulsi Prajapati and then destruction of evidence to protect himself and the top police officers involved in the killing.

B.        The charge sheet of the CBI mentions of the call detail records of Amit Shah which, according to the records of the case show that Amit Shah is making calls or receiving calls from the co-accused involved in the killing of Sohrabuddin, Kauserbi and Tulsiram Prajapati. Several calls are to 
           be seen to exchanged between the Amit Shah around the time of those killings.

C.        Even after the killing of Sohrabuddin whenever the key eye witness to the abduction Tulsiram Prajapati was being brought to Ahmedabad from Udaipur, the CDR shows that several calls are being exchanged between the co-accused and the Amit Shah.

D.        The phone records and the cell details by itself show a pattern and makes out a prima facie case indicating that accused No. 16, Amit Shah, was part of the conspiracy in the killing of Sohrabuddin, Kauserbi and Tulsiram Prajapati.

E.        The argument of the Amit Shah, that by virtue of his being a Minister of State for Home, he needed to speak to the police officers does not hold much ground. The minister of state for home has argued that the entire call details of his (Shah) have not been produced. If produced, these
           would show that the minister was speaking to the accused police officer on a regular basis. Sohrabuddin’s legal team argued that this defence could be put during trial but could not preclude law taking its own course and the powerful accused being put to trial.

F.         All the following statements (excerpted) of the witnesses clearly establish that the accused number 16, MOS Home, Gujarat, Ami Shah was involved in the conspiracy and hence is liable to stand the trial.

(i)    Rajendra Valjibhai Aharya: In his statement dated 7.8.2010 he has stated that, he was a typist with the Gujarat Police. He had joined CID Crime, Gandhinagar in September 2006. He states in his statement that a meeting was held between Mrs. Geeta Johri, Mr. Raigar and Mr. P C Pandey. After the meeting he saw Mrs. Geeta Johri perturbed and on enquiring she informed him that Mr. Amit Shah had directed her to change the case papers of Sohrabuddin case and had also directed her to call Mr. V.L. Solanki and get the case papers in Sohrabuddin case changed.

(ii)   Statement of Mr. G. Raiger : He was DGP, Home Guard in January 2006 and also had the additional charge of CID, Crime. G.C Raiger has given consistent statements of 26.07.2010, 6.07.2011 and 20.07.2012.
Mr. G. Raiger in his statement dated 26.07.2010 has clearly stated that he was pressurized to follow illegal instructions from the then Home Minister in the case of Sohrabuddin encounter which he did not follow.
In his statement dated 6.07.2011 he has clearly stated that, in the second last week of December 2006 there was meeting with Mr. Amit Shah where along with him Mrs. Geeta Johri and Mr. P C Pande were present wherein Amit Shah sharply reprimanded them for not taming DPI Sollanki and they were also told to wrap up the matter by Amit Shah.

(III)    Mr. V.L. Solanki who was the initial investigating officer has also given his statement in which he has clearly stated that he was told by Mrs. Geeta Johri that Mr. Amit Shah was upset with the investigation in the Sohrabuddin encounter case and also that changes were to be made to the enquiry report in view of the instructions given by Mr. Amit Shah.

(iv)   Statements of Mr. Ramanbhai Patel and Dashrath Patel (also builders in Ahmedabad) that also clearly show how Amit Shah was involved in the conspiracy regarding the killing of Sohrabuddin and TulsiramPrajapati.

In his discharge application, Amit Shah has argued that there are discrepancies in the statements of the witnesses. It is clear from the various statements that the witnesses are consistent in narrating the facts regarding the role of the minister, argued Sohrabuddin’s legal team. If at all there is any discrepancy in the statements of witnesses, it’s a matter of trial and cannot be a ground of discharge at this stage. The discrepancies if at all in the statement of the witnesses can be brought out only through the cross-examination of the witnesses at the stage of trial.

G.        The following are the decisions of the Supreme Court of India which were relied upon at the time of arguments on behalf of the Original Complainant.

(i)         Ramdas s/o KachruWadkar and another V/s State of Maharashtra and Anr 2006 Cri LJ 1156
(ii)        State of Bihar V/s Ramesh Singh (1977) 4 SCC 39
(iii)       Suresh alias PappuBhudarmalKalani V/s State of Maharashtra (2001) 3 SCC 703
(iv)       Sajjan Kumar V/s CBI (2010) 9 SCC 368
(v)        Bhagwan Swarup Lal Bishan Vs. State of Maharashtra (1965) 1 Cri LJ 608
(vi)       Mohd Khalid V/s State of W.B. (2002) 7 SCC 334
(vii)      Major E.G. Barsay V/s State of Bombay (1961) 2 Cri LJ 828
 
H.        Reliance was also placed on the case of Rubabuddin Sheikh V/s State of Gujarat (2010) 2 SCC 200 and Narmada Bai V/s State of Gujarat (2011) 5 SCC 79. Both these cases are part of the charge sheet filed against the Amit Shah, accused number 16.

(Arguments in writing made in the Sessions Court, Mumbai in SC No 177/2013,
178/2013, 577/2013 and 312/2013)
 
 

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