CONSTITUTIONAL CRllVIINA.

L LA'W IVlATTER
lN THE COURT OF SPECIAL JUDGE. HUIVIAN RIGHTS,
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COlVIPLA.lNT CASE No .. 2.. ~5 OF 2018

lN THE !\'fATTER OF:

Sarvadaman Singh.Oberoi '-'
......... Complainant
Versus
Union of India & Ors ·...... Defendants

. COl\1PLAINT UNDER SE-C'fiONS 30 & 31 OF THE'P'ROTECTION

OF HUMAN RlGHTS ACT, 1993 READ \VITHARTICLES 2.3, 5.2
& 9J OF INTERNATIONAL COVENANT ON CIVIl, AND
POLITICAL RIGHTS, 1966 FOR UNCONSTITUTIONAL HUMAN
RIGHTS VIOLATIONS AI\tiOUNTING TO. HUMAN RIGHTS
OFF:ENCE AS SET OUT IN THE COMPLAINT HEREINBELO\V-
ILLEGAL AND IMPROPER ACTIONS OF
POLlCE/IVJAG.ISTRL\ TE POST ZERO :FIR DATED 01.12.14- NON
ADHERENCE TO ARTICLE ~F THE CONSTITUTION OF
INDIA SINCE \VITNESSES/ RELATIVES STATElYI.ENTS NOT
RECORDED POST TRANSFER OF ZERO FIR DATED 01.!2.2014
REGISTERED AT P.S. SITABULDI TO P.S. SADAR, NAGPUR:
ARTlCtE 135 OF THE CONSTITUTION OF INDIA/SECTION 176
CrPC :FULLY APPLICABLE IN UNEXPECTED DEATH OF .AN
ARTICLE .@) PROTECTEE (CBI -·JUDGE IN HIGHLY
J>OLITICALLY SENSITIVE CASE \tVHOSE SECURITY COVER
HAD BEEN SUDDENLY WITHDRAWN BY THE EXECUTIVE ON .
24.11.2014) AS CONCLUSIVELY. ESTABLISHED UPON A
COI\1BINED READI:N.G OF CrPC 176(1) WITH 174(1) -[SEE 1975
(4)'SCC 153 AT SC<1cf'P'J57~158 PARAS 10-11.& 2006 CrLJ 2429
(GAUHATI) AT CrLJi434 PARA 14 &2013 (2) MWN (Cr.) 513 (DB)
. AT 1\'1\VN PP.521-523 PARAS 24-25] ...

Place: New Delhi

Date: 29.01.18
\

[Lt Col Sarvadaman Singh Oberoi (Retd)]

· Complain~nt-in-person
1102, Tower 1, Univvorld Garden Sector 47, Gurga?n 122018
Mob: 9818768349

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CO~'\iSTlTlfTIONAL
CRlrVHNAL L/'1.\V lVL\ TTER
PROTECTION OF UNION JUDICIARY -- MORE SPECIFlCA. LL-1'
SAFEC!UARDINC1 OF THE DIGNITY i\ND HUJ\1AN RIGHTS OF
EACH AND E\lERY JUDGE OF THE SUBORDINATE COURTS ALL
o·'VER I>iDli\ UNDER ARTICLE 235 OF THE CONSTITUTION OF
-[1\ff)-[ "- JG ··' (\ o
·''~--h, d';/ CN£.#/o: ]>LN-{)oJooo7S62olo

1N T.HE COURT OF SPECIAL JUDGE, HUIVlAN RIGHTS,

PATJALA HOUSE, NE\V DELHI h /, lb '2 'tS~2cJI(
,. . , o 1 fl b. ~ I,, t-...
COMPLAINT CASE No. ..1- OF 2018 '\ '/

IN THE IHATTER OF:

Co r."z- hlf) bJ:,.. 1~~~
N()~/L: 2-4-u2-./t
Sarvadaman Singh Oberoi _........ Complainant
Versus
Union of India & Ors ...... Defendants

INDEX

jSR-1--_- P1\RTI CULARS I DATE PAGE

h-o.l-~Complaint under Sections 30 & 31 of the 129.01.18 1-130
_j
II

Protection of Human Rights Act, 1993 read with . I

I

/ Articles 2.3, 5.2 & 9.3 ofintemational Covenant i

on Civil and Political Rights, l 966 for i
!
unconstitutional human rights violation
amounting to human rights offences
2. PROOF OF DELIVERY I 29.01.18 131
...,
--'· LIST OF DOCUMENTS ENCLOSED I
(List of witnesses shall be filed later)
--
j29.01.18 jl32-133 I

Place: New Delhi

Date: 29.01.18
.s;J~
[Lt Col Sarvadaman Singh Oberoi (Retd)]
Complainant-in-person
11 02, Tower 1, Uniworld Garden Sector 4 7, Gurgaon 122018
Mob: 9818768349
 1
HUMAN RIGHTS - CONSTiTUTIONAL CRllVIINAL LAW
I\1ATTER PROTECTiON OF UNION JUDICIARY - J'viORE
SPECIFICALLY SAFEGUARDING OF THE DIGNITY AND HUivfAN
RIGHTS OF EACH AND EVERY JUDGE OF THE SUBORDINATE
COURTS ALL OVER lNDlA UNDER ARTICLE 235 OF THE
CONSTITUTION OF INDIA, 1949
[1977 (4) SCC 193 (5 judges) at SCC pp.217-8, para 15,1981 Supp SCC
87 (7 judges) at sec pp.221-4~ para 27, 1983 (2) sec 145 {5 judges) at
sec pp.l47-153 at paras 2-12, 1991 (3) sec 655 (5 judges) a't sec
pp.674-683, paras 1-12]

IN THE COURT OF SPECIAL JUDGE, HUMAN RIGHTS,

PATIALA HOUSE, NEW DELHI

COMPLAINT CASE No. 2--0 OF 2018

IN THE lVIATTER OF:
Sarvadaman Singh Oberoi, aged 68 years s/o late Capt. H.S. Oberoi, r/o
1102, Tower-1, Uniworld Garden, Sector-47, Gurgaon 122018,
:t\.1ob: 9818768349 Email: manioberoi@gmail.com
... Complainant
Versus
l.Union of India, through the Secretary, Ministry of Home Affairs,
Government oflndia, North Block, Central Secretariat, New Delhi
110001

2. National Human Rights Commission, through its Secretary General,

:tvlanav Adhikar Bhawan Block-C, GPO Complex, INA, New Delhi
110023 (for appointment, forthwith, of independent human rights public
prosecutor, promulgation of regulations thereof as also promulgation of
regulations for human rights courts remaining pending ever since 1993)
( /I~(C 7Jr~1'1A.t?q6~/ Ct2..{2-cfi)

3. The High Court of Delhi, New Delhi 110003 through its Registrar
General, (for appe- intment, forthwith, of independent human rights public

.•. , _. .• ,..... ·•·· -•·<~.-.,.,.,..,..:.-·.........~~ .....:•• ~••• ,«.·............ ,....~·· 0 ,., ............, ..• ,~-···=--~:~·,,...·""·'·0
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 2
prosecutor, promulgation of rcp:ularions thereof as also promulgation of
regulations for human rights cuurrs remaining pending ever since 1993)

4. The Supreme Court of1ndia, New Delhi 110201 through its Secretary
General, (for appointment, forthwith, ofindependent human rights public
prosecutor, promulgation of regulations thereofas also promulgation of
regulations for human rights courts remaining pending ever since 1993)
(Rff ~CT 1>ia.( No 6~H{Jo1~)

5. High Court of Bombay, Fort, Mumbai 400032 through its Registrar

General, (for appointment,forthlvith, ofindependent human rights public
prosecutor, promulgation of regulations thereof as also promulgation of
regulations for human rights courts remaining pending ever since 1993)

6. The High Court of Punjab & Haryana, Chandigarh 160001 through its
Registrar General, (for appointment, forthwith, of independeni human
rights public prosecutor, promulgation of regulations thereof as also
promulgation of regulations for human rights courts remaining pending
ever since 1993)

7. The Latur District Bar Association through its Secretary, Sh. Ingle
Sharad M., Mitra Nagar, Latur, Maha::.-ashtra 413512, Mob: 8605544574

8. The New Delhi Bar Association through its Secretmy, Sh. Neeraj, Patiala
House Court Complex, New Delhi- 110001, Mob. 981107593

...... Defendants

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 3
[ln view of the importance of thj~ constitutional criminal law matter
all eight defendants are served, pre-filing, by speedpost on 29.01.2018
in the interests of justicel

COlVJPLAINT UNDER SECTIONS 30 & 31 OF THE PROTECTION

OF HUMAN RIGHTS ACT, 1993 READ WITH ARTICLES 2.3, 5.2
& 9.3 OF INTERNATIONAL COVENANT ON CIV]L AND
POLITICAL RIGHTS, 1966 FOR UNCONSTITUTIONAL HUMAN
RIGHTS VIOLATIONS AMOUNTING TO HUMAN RIGHTS
OFFENCE AS SET OUT IN THE COMPLAINT HEREINBELOW-
ILLEGAL AND IMPROPER ACTIONS OF
POLICE/MAGISTRATE POST ZERO FIR DATED 01.12.14- NON
ADHERENCE TO ARTICLE ~OF THE CONSTITUTION OF
INDIA SINCE WITNESSES/ RELATIVES STATEMENTS NOT
RECORDED POST TRANSFER OF ZERO FIR DATED 01.12.2014
REGISTERED AT P.S. SITABULDI TO P.S. SADAR, NAGPUR:
ARTICLE 135 OF THli'. CONSTITUTION OF INDIA/ SECTION 176
CrPC FULLY APPLICABLE IN UNEXPECTED DEATH OF AN
ARTICLE @PROTECTEE (CBI JUDGE LATE SH. BRIJGOPAL
HARIKISHAN LOYA IN HIGHLY POLITICALLY SENSITIVE
CASE WHOSE SECURITY COVER HAD BEEN SUDDENLY
WITHDRAWN BY THE EXECUTIVE ON 24.11.2014) AS
CONCLUSIVELY ESTABLISHED UPON A COMBINED
READING OF CrPC 176(1) WITH 174(1) -[SEE 1975 (4) SCC 153 AT
SCC PP.157-158 PARAS 10-11 & 2006 CrLJ 2429 (GAUHATI) AT
CrLJ 2434 PARA 14 & 2013 (2) MWN (Cr.) 513 (DB) AT MWN
PP.521-523 PARAS 24-25]

Respectfully submitted,

1. That Complainant herein is resident of India residing presently at

Gurgaon, Haryana, India who along with other citizens is actively

espousing the cause of human rights in India since the Year 2015.

2. That judges can neither speak nor publish except only through their

judgments. That this disciplined forbearance has yet to yield the desired

results of justice, accuracy, promptness and probity in the judicial system

. -···~- ____ , ___ , -·--'-------------·~-·

r- 4
envisaged by the Constituent Assembly. That seventy years have passed

and time has come to protect the Subordinate Courts which fonn the true

bulwark of democracy and are increasingly under systemic attack from

multiple directions from litigants; unfortunately a trend is emerging of

attack from sources other than private litigants, unimaginable to tl1e August

Members of the Constituent Assembly, who therefore had made no

provision for such a scenario.

3. That this gap has been attempted to be filled in by the Hon'ble

Supreme Court of India in judgments reproduced in extract in this

complaint, but the attacks are only gaining momentum and judges may or

may not continue to exhibit the stellar courage and perseverance for which

they are revered by every citizen, if such a dire situation as has now arisen

is pe1mitted to fester and exacerbate.

4. That the prayer in this complaint is primarily directed to the

safeguarding of the dignity and human rights of each and every judge of

the subordinate courts all over India, including this learned court, under

Articie 235 ofthc Constitution ofindia,1949.

5. That the late NaniA. Palkhiwala in "We The People" ISBN 978-81-

7476-167-5 in 1984 dedicated his heart wrenching book in a telling lament

"TO MY COUNTRYMEN who gave themselves the Constitution but not the

ability to keep it, who inherited a resplendent heritage but not the wisdom

to cherish it, who suffer and endure in patience without the perception of
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5
rheir potential". Palkhivvala goes on to Iist four costly failures of ··We The

People" as (I) Failure to maintain law and order. \Ve have too much

government and too little administration; too many public servants and too

little public service; too many controls and too little welfare; too many laws

and too little justice. (2) Failure to bring the unbounded economi~ potential

"•)
of the country to fruition. (3) Failure to make human investment -

investment in education, family planning, nutrition and public health, in

contradistinction to physical investment in factories and plants. Gross

national happiness should have been given priority over gross national

product. (4) Failure to provide moral leadership. We do not live by bread

alone, and we are greater than we know. Palkhiwala opined that only

private initiative of the citizenry could have gone a long way towards

counteracting the deficiencies of the government.

6. That w.e.f. 03.01.77 Article 51A (h) of the Constitution of India

makes it the duty of every citizen including the complainant herein not only

to abide by the Constitution vide Article 51 A (a) but also to take up reforms

in line with the dictates of the Constitution, which includes safeguarding

and protecting the integrity and dignity of judges enshrined as part of the

Basic Structure Doctrine and contained in Article 20(3), Article 53, Article

74, Article 124, clauses (4) and (5), Article 217, Article 218, Article 235,

Article 311, Article 361, clause (2) of the Constitution of India, Section 1

of the Judicial Officers Protection Act, 1850, Section 21 (Third), Section

·--~~ .......... ....,.-... - .... ~ •.,,_ • . _ ........~~ ..................... ........:..:..·.. ~~-->...c.. ....,_. __ -·
:
 i
6
77 ofthe Indian Penal Code, Judges Inquiry Act, 1968, 1977 (4) SCC 193

(5 judges) at SCC pp.217-8, para 15, 1981 Supp SCC 87 (7 judges) at

sec pp.22l-4, para 27, 1991 (3) sec 655(5 judges) at sec pp.674-683,
paras ] -12.

7. That the complainant herein is personally as also constitut,ionally

duty bound to safeguarding of the dignity and human rights of judges of

this and other courts, he also has nine pending matters before four learned

judges of this District Court (including a CBI Judge and the Ld. District &

Sessions Judge) continuing since the year 199 5 in a property matter

involving the Union of India, Delhi Development Authority, the Delhi

Police and others.

8. That this complaint under Constitutional Criminal Law

Jurispmdence is being made by the complainant under sub-section (viii) of

Section 39 of the Criminal Procedure Code (CrPC) r/w Sections 35, 36,

37,38, 39 & 106 of the Indian Evidence Act r/w Sections 166A(b) & 409

of the Indian Penal Code in the backdrop of the published scientific

medico-legal literature and upon a conjoint analysis and interpretation of

Article 235 of the Constitution of India, sub-section (1) of Section 176

which contains the independent as also supplemental powers of judicial

magistrates to exercise all the powers of "holding an inquiry into an

offence" in cases of unexpected death (which is a synonym of accidental

death- Collins English Dictionary) & sub-section (1) of Section 174 which

.. ...... --k'"'~-...>~--..:.. .. ,_,_,... , .__.....'. •. ., ~ ---

 7
mandates cetiain actions by police vvhenever a person ''has died under

circumstances raising a reasonable suspicion that some other person has

committed an offence."

9. Defendant No. 1 is the necessary pmty as human rights law IS

legislated by the Parliament.

10. Defendant No. 2 is the premier body that is authorized to investigate

complaints and to pass binding directions in the national sphere in accord

with the Paris Principles on all types of human rights issues in consultation

with the Defendant No. 1.

11. Defendant Nos. 3, 5 & 6 are the controlling authorities in terms of

Article 235 of the Constitution oflndia which is also charged with the care,

custody, discipline and dignity of the subordinate judiciary within their

respective areas of jurisdiction.

12. Defendant No. 4 is the competent authority in terms of ArtiCle 124

read with Article 142 of the Constitution of India.

13. Defendant No. 7 is the Latur District Bar Association which has

passed a resolution dated 24.11.2017 on the premise of A1iicle 235 of the

Constitution of India.

14. Defendant No. 8 is the Bar Association of this District Court which

has implicit concern with issues of Article 235 of the Constitution of India

which arise in this complaint case.

 8
15. That Defendant Nos. 1, 3, 4, & 8 fall vvithin the jurisdiction of this

Ld. Colll1 and there is also adequate and sufficient material placed on

record which shall be admissible in evidence at trial, whenever it becomes

possible to commence it once thepatent and obvious obstacles (persisting

enigmatj cally for the last twenty-five years since 1993) of' lack of

regulations governing the human rights prosecutors as also the human

rights courts are removed by operation oflaw as there can never be estoppel

in law against Sections 30 & 31 of Central Act No. 10 of 1994 which have
'--

been held to be inviolate and passed by Parliament in its wisdom in

compliance of International Obligations including more specificaily the

"Paris Principles" which abjure any such obstacle as a denial of sanction to

prosecute, when, after due diligence, the independent human rights

prosecutor determines that some one or more persons have exercised the

State Power in violation of sacrosanct human rights and may have

committed thereby prima facie "human rights offence", mandating a trial

before the Special Judge Human Rights having jurisdiction over one or

more of the defendants. That Articles 2.3, 5.2 & 9.3 of International

. Covenant on Civil and Political Rights, 1966 form the crux of the case for

ensuring protection of judges from the point of view of implementation of

International Obligations. That Parliament has passed appropriate

legislation for enforcement of the two Covenants of 1966 in terms of sub-

sections (d), (e) & (f) of Section 2 of Central Act No. 10 of 1994.

~ -··
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 9
16. That Defendant Nos. 1, 3 & 4 fall within the jurisdiction of this Ld.

Court and hence trial jurisdiction is clearly established as regards Section

166A(b) in respect to Defendant No. 1 for permitting Sections 30 & 31 of

Central Act No. 10 of 1994 to remain otiose for twenty-five years in spite

of repeated reminders from Defendant No. 2.

17. That it is well settled that in criminal cases any person can set the

law in motion and, accordingly, complainant herein is filing this complaint

which is essentially in the nature of a "Constitutional Criminal Matter"

involving interpretation of Articles 235, 51A(a) & 51 (h) of the

Constitution of India. However the cause of action and iocus of this Indian

\ Citizen acting in individual capacity is as advised by no less than the great

jurist the late NaniA. Palkhiwala in his 1984 book, "We The People" ISBN

978-81-7476-167-5.

18. That sub-section (viii) of Section 39 of the Criminal Procedure Code

(CrPC) r/w Sections 35, 36, 37, 38, 39 & 106 of the Indian Evidence Act

r/w Sections 166A(b) & 409 of the Indian Penal Code shall come into focus

at an appropriate stage of the proceedings.

19. That, the allegations/ alleged facts, not all of which could presently

be said to constitute evidence of a formal nature, as alleged or insinuated

or reported widely among the general public ("WE THE PEOPLE") and

the print and electronic media ("FOURTH ESTATE") of the alleged human

rights violation by State power, in this case of Sh. Brijgopal Harikishan

 10
Loya, the late CBl Judge, such violation allegedly a.mounting to human

rights offences, are tabulated datewise, fo11mved by suggested draft

regulations for making human rights courts 111eaningfully operational

nearly a quarter century after they were legislated into a 50 far dormant

existence.

Date Events

12.01.10 Rubabbuddin Sheikh vs State Of Gujarat & Ors, 2010 (2)

SCC200

27.09.12 Central Bureau of Investigation Versus Amitbhai Anil

Chandra Shah and Another, 2012 (l 0) SCC 545 (Trial

shifted out of Gujarat)

08.04.13 Amitbhai Anil Chandra Shah Versus Central Bureau of

Investigation, 2013 (6) SCC 348 (CBI 's second charge sheet

quashed)

10.08.13 Chief Justice Mohit S. Shah of Bombay High Court (from

26.06.10- 08.09.15), Chief Justice Bhattacharya ofGujarat

High Court and Chief Justice Barin Gosh ofUttrakhand who

were the three senior Chief Justices were ignored and were

not elevated as Supreme Court Judges.

25.06.14 CBI Judge, Sh. JT Utpat is suddenly transferred to stymie

the framing of charges on 26. 06.14 .

-
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 11
24.11.14 Security cover of CBI Judge, Sh. Brijgopal Harikishan .Loya

was suddenly withdrawn

01.12.14 Zero FIR registered on 01.12.2014 at P.S. Sitabuldi in

sudden unexpected death of CBI Judge, Sh. Brijgopal

Harikishan Loya on the intervening night of

30.11.14/01.12.14 (sometime around 1.38 A.M.?) under

obscure circumstances (if as now emerging he was

complaining of heart pain why ambulance vFas not called

and why he was made to walk up to the obscure first floor

orthopaedic hospital whose ECG machine was non-

(zmctional, rather than taken on stretcher in an ambulance

to a 24 hours multi-speciality hospital just minutes away);

was later transferred to P.S. Sadar, Nagpur but not taken to

its logical conclusion of Report under Section 176 CrPC per

law well settled till the date of filing of this complaint. CBI

Judge Loya was in Nagpur to attend the wedding of the

daughter of a fellow judge, Sapna Joshi. Initially he had not

intended to go, but two ofhis fellow judges had insisted that

he accompany them. Whereas the sudden, unexpected

(accidental?) death indicates a degree of suspicion and also

finds acknowledgment in the very fach1m of Section 17 4

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 (.
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12
CrPC Repon, the failure to make the consequential, nay

almost mandatory Repm1 under Section 176 CrPC upon a

conjoint analysis of Article 124 read harmoniously with

Article 235 of the Constimtion oflndia read with sub-section

( 1) of Section 17 6 which prima facie envisages a Report

under Section 17 6 CrPC because sub-section ( 1) of Section

174 is categorically mentioned in sub-section (1) of Section

176. That Section 176 being a special provision overrides

Section 174 CrPC "have a very lirr:ited scope". (1975 (4)

sec 153 at sec p.l57 paras 10) hence the mandate of law
in this case was for a Report under Section 17 6 CrPC.

[Thoudam Ongbi Akashini Devi v. State of Manipur, 2017

CriLJ 114, 2016 SCC OnLine Manipur 146 at p.l4 para 14,

Anvar P.V. vs. P.K. Basheer, 2014 (10) SCC 473 at SCC

p.486 para 22]

02.12.14 There are reports of judges in private crying out to some of

to their lawyer colleagues that Judge Loya was "killed" but

24.11.17 they are helpless as the Chief Justice is not even acceding to

the private demands of family members to inquire the

matter; further it is reliably learnt that no statements were

recorded of witnesses or family members till about 24.11.17

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 13
and Zero FIR in Meditrina Hospital jurisdiction was

transferred to Ravi bhavan jurisdiction, but not progressed

thereafter till 24.11.17 when SID, Mumbai recorded some

statements in the death case of relatives and colleagues;

Neurosurgery was reported to have been condncted at

Meditrina Hospital; rampant rumours are floating that Judge

Loya died at night; ECG accompanied the body from Dande

Hospital at 5 A.M. on 01.12.14 or not is now a massive

contruversy; the post mortem of the Government Hospital

seems to reflect that ECG accompanied the body from

Dande Hospital at 5 A.M. on 01.12.14 but the statement of

Adhoc Judge Sh. Roopesh R. Rathi contradicts this and

rather supports the media which claimed to be q noting basis

a recorded video conversation with the sister of Judge Loya.

30.12.14 The new CBI Judge Sh. MB Gosavi, discharges Accused

to No. 16, Sh. Amit Shah on 30.12.14 and then the river of

01.08.17 discharges begins -by 25.08.16 he also discharges Accused

Nos. 2, 12, 15, 17, 18, 21, 22,36 & 37. The next CBI Judge

Sh. SJ Sharma discharges Accused No. 28 on 24.07.17 and

accused Nos. 1 & 3 on 01.08.17. He also passes a gag order

on the media on 29.11.17. This case is going nowhere, even

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 1 tl
..A '

the CBI sends only a junior lawyer to argue :for 20 minutes

or so against a battery of lawyers who argue for hours

together. One judge was moved out suddenly, the next died

suddenly one week after his security cover was removed

suddenly on 24.11.14, the message to lawyers antl police

officers seemed loud and clear.

24.11.17 The Latur District Bar Association L.D.B.A., Latur,

Maharashtra resolved: "The suspicious circumstances 111

which death of Shri Brijmohan Loya former membe-rs of

L.D.B.A. and sitting judge of special court of C.B.I. Mumbai

reqmres independent investigation. The Assembly

unanimo'J.sly decided to pass a resolution as under. We the

members of Latur District Bar Association unanimously

resolved that, 'The death of Shri Loya Judge has occurred in

suspicious circumstances which got revealed from the

journalist so, it requires the further investigated through

independent commission of the Supreme Court/High Court

Judge."'

24.11.17 HANDWRJTTEN STATEMENT OF ADHOC JUDGE SH.

ROOPESH R. RA THI AT 11 A.M. ON THE DATE: "Upon

request of Shri Sanjay Barve, Commissioner, SID, Mumbai

 15
& as Hon'ble High Court of Mumbai granted permission to

give say, I am statjng the fact known to me regarding Judge

Shri Brijgopal Harikishan Loya ............ Then we went to

the nearest hospital is Ravinagar i.e. Dr. Dande hospital.

That hospital was on 1st floor and so we all climb~d stairs

and went there. One assistant doctor was present there. Mr.

Loya complained about severe chest pain. His face was

sweating & he was continually telling about more chest pain

and heart bum. At that time the doctor tried to do his ECG

but the nodes of ECG machine were broken. Doctor tried

and wasted some time but machine was not working. I. .... "

2017 THE ESSENTIALS OF FORENSIC MEDICINE AND

TOXICOLOGY 34TH ED 2017 BY DR KS NARAYAN

REDDY ISBN 978 93 5270 103 2

I. CAUSES OF DEATH ARE AT BEST PROBABLE, Dr

Reddy 34 Ed 2017 p.l36:

II. Asphyxiation as Cause of Death ALWAYS NON-

SPECIFIC, Dr Reddy 34 Ed 2017 p.l33:

III. Therefore Coronary Artery Insufficiency NEVER A

CONCLUSIVE CAUSE OF DEATH

""'~·-·"----~ ........ ,.____ ... .,;.~.·~-·~· ...... ~·-- _ . ...

_,__ ,_ ~ .....
-~ .. -~-. .. .:...,...~---
(---;)
16
IV. Scoring out the \vord PROBABLE under heading

"PROBABLE CAUSE OF DEATH" is at best

impermissible and at worst Machiavellian. No doctor true to

the Hippocratic Oath would ever stoop so low.

I

V. Dr Reddy 34 Ed 2017 p.l33: Asphyxial Stigmata:

Asphyxia is not a pathological entity, and cannot be

recognised from anatomical findings alone .............. .

VI. Dr Reddy 34 Ed 2017 p.l36: CLASSIFICATION OF

THE CAUSE OF DEATH: "may" be grouped as follows

(PROBABLE from the word MAY):

(I) NATURAL CAUSES - SPECIFIC ;,LESION" needs

must have been found at autopsy

(II) UNNATURAL CAUSES - SPECIFIC "LESION"

needs must have been found at autopsy

(III) OBSCURE CAUSES - NO LESION IS FOUND AT

AUTOPSY - Require broader inquiry from immediate

relatives, general public, police and infom1ers to attempt to

establish a probable cause of death - very difficult for

doctors alone to give opinion - needs special team of

UNBIASED criminologists, doctors and medico-legal

experts to even attempt to opine on a probable cause of

-.::.~
•• •• ... .- ........ J . .-..h ...-....:~~-~•~.;;,.~ __ ......-...-"'-f.wn..r..-.~...~----··· .~_,.,.,,.. .,~Y·"'~-····~~ .. ~~:•.. ~~-··: ....~":~~:=i~:~~=~~:.:L~------:~::~Jl,;~~~~~~.&J%~-U;:'"·~-;-~·~:~:::~:·.~~:~"-· ·. ,:..,~:.:.:._
•.•.•

--~~~-~~~~~=--~-·-=--~-~~~--=· .. " "' -~~·c;--c·=c

 17
death, if at all it can be established with some degree of

certainty as toxins are many and reaction of each individual

to a particular toxin varies.

20. DRAFT REGULATIONS FOR OFFICE OF 1 THE

INDEPENDENT NATIONAL HUIVIAN RIGHTS PROSECUTOR.

2018

Draft Regulations for Office of the Independent National Human Rights

Prosecutor under sub-section (3) of Section 40-B of Protection of Human

Rights Act, 1993

"1. The Office of the Independent National Human Rights Prosecutor shall

act independently as a separate cell attached to the National Human Rights

Commission which shall be set up in accordance with Regulations

prescribed in accordance with Section 10 read with Section 40-B of the

Protection of Human Rights Act, 1993 (Act No. 10 of 1994). It shall be

responsible for the proper prosecution, keeping in view Sections 2(d), (e)

& (f), 12(a), (b) & (f), 13(2), 14,17 & 18(a)(ii) & (b) ofthe Protection of

Human Rights Act, 1993, read with Section 2(n) of the Code of Criminal

Procedure, 1973, in respect of human rights offences committed in India

including their proper investigation. It shall also be responsible for the

proper prosecution in respect of human rights offences transferred for trial

by a court of competent jurisdiction to any court of Special Judge Human

_,,···-·-"'"~~-'"'-'-·;_,._.,_,.._.._,..,. . ...,,_,....,.. _,,. '''• -''"'-'--~--~_,~, ... ·,~· -~-'..L.'o..'_o..__, .."""-_,.,.,_,_ ... ......,....... .,_...;_,__,_.;o<... ~._ '•'•• • "''
 18
Rights in India. It shall be responsible for examining all these cases and for

conducting prosecutions before the Human Rights Courts set up in India

under Section 30 of the Protection of Human Rights Act, 1993 as also

provide necessary assistance before the appellate courts, including Hon'ble

Supreme Court of India. A member of the Office shall not seek or' act on

instn1ctions from any external source.

2. The Office shall be headed by the Independent National Human Rights

Prosecutor. The Independent National Human Rights Prosecutor shall have

full authority over the management and administration of the Office,

including the staff, facilities and other resources thereof The Independent

National Human Rights Prosecutor shall be assisted by one or more Deputy

Independent National Human Rights Prosecutors, who shall be entitled to

carry out any of the acts required of the Prosecutor under Section 31 of

Protection of Human Rights Act, 1993 and there shall be at least one

Deputy Human Rights Prosecutor for each of the Sessions Divisions in

India. They shall serve on a full-tinie basis.

3. The Independent National Human Rights Prosecutor and the Deputy

Independent National Human Rights Prosecutors shall be persons of high

moral character, be highly competent in and have extensive practical

experience in the prosecution or trial of criminal cases. They shall have

been in practice as an advocate for not less than nine years.

 /:··
19
4. The Independent National Human Rights Prosecutor shall be appointed

by a committee headed by tbe Prime 1vlinister oflndia pari materia Section

4 of the Protection of Human Rights Act, 1993 upon the aid and advise of

the Chairperson of the National Human Rights Commission. The Deputy

Independent National Human Rights Prosecutors shall be appointed in the

same way from a list of candidates provided by the Independent National

Human Rights Prosecutor. The Independent National Human Rights

Prosecutor shall nominate three candidates for each position of Deputy

Human Rights Prosecutor to be filled. Unless a shorter term is decided upon

at the time of their election, the Independent Nationai Human Rights

Prosecutor and the Deputy Independent National Human Rights

Prosecutors shall hold office for a term of nine years from date of joining

duty and shall not be eligible for re-appointment for nine years after

stepping down from any tenure of duty as such prosecutor.

5. Neither the Independent National Human Rights Prosecutor nor a

Deputy Independent National Human Rights Prosecutor shall engage in

any activity which is likely to interfere with his or her prosecutorial

functions or to affect confidence in his or her independence. They shall not

engage in any other occupation of a professional nature.

6. The Chairperson of the National Human Rights Commission may excuse

the Independent National Human Rights Prosecutor or a Deputy

....:....,."""""-.,::..,.!~~-·--·"'· ,_ ········---·~. ··~·---

 20
lnckpenclent National Human Rights Prosecutor, at his or her request, from

acting in a particular case.

7. Neither the Independent National Human Rights Prosecutor nor a

Deputy lndependent National Human Rights Prosecutor shall participate in

any matter in which their impartiality might reasonably be doubt~d on any

ground. They shall be disqualified from a case in accordance with this

paragraph if, inter alia, they have previously been involved in any capacity

in that case before any Court or in a related criminal case involving the

person(s) being investigated or prosecuted.

8. Any question as to the disqualification of the Independent National

Human Rights Prosecutor or a Deputy Independent National Human Rights

Prosecutor shall be decided by the Chairperson of the National Human

Rights Commission.

(a) The person being investigated or prosecuted may at any time request

the disqualification of the Independent National Human Rights Prosecutor

or a Deputy Independent National Human Rights Prosecutor on the grounds

set out in this regulation;

(b) The Independent National Human Rights Prosecutor or the Deputy

Independent National Human Rights Prosecutor, as appropriate, shall be

entitled to present his or her comments on the matter.

9. The Independent National Human Rights Prosecutor shall appoint

advisers with legal expertise on specific issues, including, but not limited

~--'--···-
u...... "-....:.·, •. .,.., ..,._..... , ,., '·······-'·•·
··-··-<-·--· ·---~-"""-'"""'. . . . -~.......;.~~............. ·-~,...._,,,,_..,_._.,..~~·-~--"-····~·--~ --- ··-~·-~ ..
 ;..-:::--
(
21
to. sexual and e.ender violence and violence against children in consultation
~ ~

-vvith the Chairperson of the National Human Rights Commission.

10. Indicative list of offences (certain other human rights offences would

also be iclentijiable but certain offences like family matters, children and

SC/ST are more appropriately dealt by the concerned special courts unless

very influential public officials or political leaders are involved) which

may be amended by the competent authority at an mmual review in July

every year:

I. International Covenant on Civil and Political Rights, 1966 (ICCPR)

ICCPR 2.3(a) To ensure that any person whose rights or freedoms as

herein recognized are violated shall have an effective remedy,

notwithstanding that the violation has been committed by persons acting in

an official capacity;

ICCPR 2.3(b) To ensure that any person claiming such a remedy shall

have his right thereto determined by competent judicial, administrative or

legislative authorities, or by any other competent authority provided for by

the legal system of the State, and to develop the possibilities of judicial

remedy;

ICCPR 2.3( c) To ensure that the competent authorities shall enforce

such remedies 'Yhen granted.

~~.:.o.;..:~..,~c-•. -~'\.·.~·
r'· 22
lCCPR 3 The States Patties to the present Covenant undertake to

ensure the equal right of men and women to the enjoyment of all civil and

political rights set forth in the present Covenant.

ICCPR 5.1 Nothing in the present Covenant may be interpreted as

implying for any State, group or person any right to engage in any apivity

or perform any act aimed at the destruction of any of the 1ights and

freedoms recognized herein or at their limitation to a greater extent than is

provided for in the present Covenant.

ICCPR 5.2 Tl1ere shall be no restriction upon or derogation from any of

the fundamental human rights recognized or existing in any State Party to

the present Covenant pursuant to law, conventions, regulations or custom

on the pretext that the present Covenant does not recognize such rights or

that it recognizes them to a lesser extent.

ICCPR 6.1 Every human being has the inherent right to life. This right

shall be protected by law. No one shall be arbitrarily deprived of his life.

ICCPR 7 No one shall be subjected to torture or to cruel, inhuman or

degrading treatment or punishment. In particular, no one shall be subjected

without his free consent to medical or scientific experimentation.

ICCPR 8.1 No one shall be held in slavery; slavery and the slave-trade

in all their forms shall be prohibited.

JCCPR 8.2 No one shall be held in servitude.

' ...... _,. -~ -·-·---~ ...... -~"""' '·"-··- -"···--

 23
ICCPR 9. J Eseryone has the right to liberty and security of person. No

one shall be subjected to arbitrary arrest or detention. No one shall be

deprived of his liberty except on such grounds and in accordance with such

procedure as are established by law.

I CCPR 9.2 Anyone who is arrested shall be informed, at the time' of arrest,

of the reasons for his arrest and shall be promptly informed of any charges

against him.

ICCPR 9.3 Anyone arrested or detained on a criminal charge shall be

brought promptly before a judge or other officer authorized by law to

exercise judicial power and shall be entitled to trial within a reasonable

time or to release. It shall not be the general rule that persons awaiting trial

shall be detained in custody, but release may be subject to guarantees to

appear for trial, at any other stage of the judicial proceedings, and, should

occasion arise, for execution of the judgement.

ICCPR 9.4 Anyone who is deprived of his liberty by arrest or detention

shall be entitled to take proceedings before a court, in order that that court

may decide without delay on the lawfulness of his detention and order his

release if the detention is not lawful.

ICCPR 9.5 Anyone who has been the victim of unlawful arrest or

detention shall have an enforceable right to compensation.

ICCPR 10. 1 All persons deprived of their liberty shall be treated with

humanity and with respect for the inherent dignity of the human person.

~~~=--•'•-"''-_,.._...., ,_....._ .:. . . . .•~....._-_...,,,__, ••.••C•• ••"••','O-•·•·'•-•',,l'-'L''"·, "·''"""".. "•'·«•, "-'~•'.'• ....... ·"'---"-""-'•'1-....~_,.. ... ,.:_ .••• ~-~'"';.--·-- ......- "•"'-"'--':0"'-.....C."''.....-;.· __ ,_ ··""'-'-'"'~
 -~-;-·, 24
I CCPR 10.2 (a) Accused persons shall, save in exceptional circumstances,

be segregated from convicted persons and shall be subject to separate

treatment appropriate to their status as unconvicted persons;

ICCPR 10.2 (b) Accused juvenile persons shall be separated from adults

and brought as speedily as possible for adjudication.

ICCPR 10.3 The penitentiary system shall comprise treatment of

prisoners the essential aim of which shall be their reformation and social

rehabilitation. Juvenile offenders shall be segregated from adults and be

accorded treatment appropriate to their age and legal status.

ICCPR 11 No one shall be imprisoned merely on the ground of inability

to fulfil a contractual obligation.

ICCPR 12.1 Everyone lawfully within the territory of a State shall,

within that territory, have the right to liberty of movement and freedom to

choose his residence.

ICCPR 12.2 Everyone shall be free to leave any country, including his

own.

ICCPR 12.3 The above-mentioned rights shall not be subject to any

restrictions except those which are provided by law, are necessary to

protect national security, public order (ordre public), public health or

morals or the rights and freedoms of others, and are consistent with the

other rights recognized in the present Covenant.

,
u..·....~,.•"""-:.~.-· ••'•--""•-..,• _. _ _,~; •. _,_....,.._~~-·;,,...r<.o<o'<•:•'t."o.-...~-·._.._, .-,><,....,_-~~-.-:.......••''"""'-""
 I
25
JCCPR 12.4 No one shall be arbitrarily deprived of the right to enter his

own country.

JCCPR 13 An alien lawfully in the territory of a State Party to the

present Covenant may be expelled therefrom only in pursuance of a

decision reached in accordance with law and shall, except where

compelling reasons of national security otherwise require, be allowed to

submit the reasons against his expulsion and to have his case reviewed by,

and be represented for the purpose before, the competent authority or a

person or persons especially designated by the competent authority.

ICCPR 14.1 All persons shall be equal before the courts and tribunals. In

the determination of any criminal charge against him, or of his rights and

obligations in a suit at law, everyone shall be entitled to a fair and public

hearing by a competent, independent and impartial tribunal established by

law. The press and the public may be excluded from all or part of a trial for

reasons of morals, public order (ordre public) or national security in a

democratic society, or when the interest of the private lives of the parties

so requires, or to the extent strictly necessary in the opinion of the court in

special circumstances where publicity would prejudice the interests of

justice; but any judgement rendered in a criminal case or in a suit at law

shall be made public except where the interest of juvenile persons

otherwise requires or the proceedings concern matrimonial disputes or the

guardianship of children.

~':....C.:. . . . ."• ,....._,~-~. . . . . . .:.--.-...<.·~·

-·"--"•'u>'•-·__..' \ l h u ..... -....:;..,...·,,"" ...... - ' ...,!.>"'·-'-'-'-"••
'·"'"-'"'u •-~----~,_. ..~ .. ~·_,;...>.~--· .....,...... ,..,>6,.,:>..,, ·• '"""' .-~--"·-·,c ·' ~.-.-......_,,..,~ .. .-'-"''·••>~•'"'''...,....._,,,.....,.-," -•~ r ,,_,,: . .,, _...,_. :-"""~'-'-·""-'-·--=--~.,._..._.:._,.,_-""-"'-'~·~-'"'"""'~• -•··•.-""c-....:..._
 26
- charged with a criminal otTence shall have the right
ICCPR 14.2 Evervone ~ ~

to be presumed innocent until proved guilty according to law.

ICCPR 14.3 In the detennination of any criminal charge against him,

everyone shall be entitled to the following minimum guarantees, in full

equality:

ICCPR 14.3 (a) To be informed promptly and in detail in a language which

he understands of the nature and cause of the charge against him;

ICCPR 14.3 (b) To have adequate time and facilities for the preparation

of his defence and to communicate with counsel of his own choosing;

ICCPR 14.3 (c) To be tried without undue delay;

ICCPR 14.3 (d) To be tried in his presence, and to defend himself in

person or through legal assistance of his own choosing; to be informed, if

he does not have legal assistance, of this right; and to have legal assistance

assigned to him, in any case where the interests of justice so require, and

without payment by him in any such case if he does not have sufficient

means to pay for it;

ICCPR 14.3 (e) To examine, or have examined, the witnesses against

him and to obtain the attendance and examination of witnesses on his behalf

under the same conditions as witnesses against him;

ICCPR 14.3 (f) To have the free assistance of an interpreter if he cannot

understand or speak the language used in court;

.t.i·~~- -~'-'"·"'"-'··.,.....,.~., Jt,I•••• J.·.:..-, • .__ • •'• ,_.._o··~•·"''-'''"...,;."-,"• ...,._,.,.••.•,. .. :..>..••'

 27
ICCPR 14.3 (g) Not to be compelled to testify against himself or to

confess guilt.

ICCPR 14.4. In the case ofjtlvenile persons, the procedure shall be such

as will take account of their age and the desirability of promoting their

rehabilitation.

ICCPR 14.5 Everyone convicted of a crime shall have the right to his

conviction and sentence being reviewed by a higher tribunal according to

law.

ICCPR 14.6 When a person has by a final decision been convicted of a

criminal offence and when subsequently his conviction has been reversed

or he has been pardoned on the grOtmd that a new or newly discovered fact

shows conclusively that there has been a miscarriage of justice, the person

who has suffered punishment as a result of such conviction shall be

compensated according to law, unless it is proved that the non-disclosure

of the unknown fact in time is wholly or partly attributable to him.

ICCPR 14.7 No one shall be liable to be tried or punished again for an

offence for which he has already been finally convicted or acquitted in

accordance with the law and penal procedure of each country.

ICCPR 15.1 No one shall be held guilty of any criminal offence on

account of any act or omission which did not constitute a criminal offence,

under national or international law, at the time when it was committed. Nor

shall a heavier penalty be imposed than the one that was applicable at the

. ...:,,~J:.Io.""-'; .._._,'"'"'""•~-·-·-"-·''-'-"-.< ... _.,.-o~~....J.•.,v..o..e .• ;.._. • . ,_.,_ .-._._....,,,_"'""",~-<-'·

"'' •-• :. ._... ~- _, -'--~.:_, ...... ,~'" ·-"-"'<L-'"-''••''•-"•~

 28
time when the criminal offence was committed. If~ subsequent to the

commission of the offence, provision is made by law for the imposition of

the lighter penalty, the offender shall benefit thereby.

ICCPR 15.2 Nothing in this article shall prejudice the trial and

punishment of any person for any act or omission which, at the time when

it was committed, was criminal according to the general principles of law

recognized by the community of nations.

ICCPR 16 Everyone shall have the right to recognition everywhere as a

person before the law.

ICCPR 17.1 No one shall be subjected to arbitrary or unlawful

interference with his privacy, family, home or correspondence, nor to

unlawful attacks on his honour and reputation.

ICCPR 17.2 Everyone has the right to the protection of the law against

such interference or attacks.

ICCPR 18.1 Everyone shall have the right to freedom of thought,

conscience and religion. This right shall include freedom to have or to

adopt a religion or belief of his choice, and freedom, either individually or

in community with others and in public or private, to manifest his religion

or belief in worship, observance, practice and teaching.

ICCPR 18.2 No one shall be subject to coercion which would impair his

freedom to have or to adopt a religion or belief of his choice.

,,·.,:.~'•• '"""•L/ ..... ,,__, __,,_..,.:.,:,...__,.:...,~-.-~..-.-~.-· '"'--"'~'-k"-'-'"'"'__..........__............_..,._.-'. o' ·~ •"'• ·-'' _,,• '-••
 --~--,-----··
29
lCCPR 18.3 Freedom to manifest one's religion or beliefs may be subject

only to such limitations as are prescribed by law and are necessary to

protect public safety, order, health, or morals or the fundamental rights and

freedoms of others.

ICCPR 18.4 The States Parties to the present Covenant undertake to have

respect for the liberty of parents and, when applicable, legal guardians to

ensure the religious and moral education of their children in conformity

with their own convictions.

ICCPR 19.1 Everyone shall have the right to hold opinions without

interference.

ICCPR 19.2 Everyone shall have the right to freedom of expression; this

right shall include freedom to seek, receive and impart information and

ideas of all kinds, regardless of frontiers, either orally, in writing or in print,

in the form of art, or through any other media of his choice.

ICCPR 19.3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities. It may therefore be

subject to certain restrictions, but these shall only be such as are provided

by law and are necessary:

ICCPR 19.3 (a) For respect of the rights or reputations of others;

ICCPR 19.3 (b) For the protection of national security or of public order

(ordre public), or of public health or morals.

ICCPR 20.1 Any propaganda for war shall be prohibited by law.

--·-~-- ,_,~:.·--·-.,.,.,_:;..,._..,___,..._,~ • ...:.~-..... ~~"'"""'"" .... "'-~""''~"·'"'"'-''"'""'"'"'"-~"·····-··· .. ·-··· .c~..-- •• ,

•••,~c.,-..:...----.. ,.
••-'·-·"--'-..,._.,_.N_.,_.,...,,~ --·--:.-.-'-~-·-~.·,o_.~_·,;_,,
 30
ICCPR 20.2 Any advocacy of national, racial or religious hatred that

constitutes incitement to discrimination_. hostilitv-' or violence shall be

prohibited by law.

1CCPR 21 The right of peaceful assembly shall be recognized. No

restrictions may be placed on the exercise of this right other than those

imposed in conformity with the law and which are necessary in a

democratic society in the interests of national security or public safety,

public order (ordre public), the protection of public health or morals or the

protection of the rights and freedoms of uthers.

ICCPR 22.1 Everyone shall have the right to freedom of association with

others, including the right to form and join trade unions for the protection

of his interests.

ICCPR 22.2 No restrictions may be placed on the exercise of this right

other than those which are prescribed by law and which are necessary in a

democratic society in the interests of national security or public safety,

public order (ordre public), the protection of public health or morals or the

protection of the rights and freedoms of others. This article shall not

prevent the imposition of lawful restrictions on members of the armed

forces and of the police in their exercise of this right.

ICCPR 22.3 Nothing in this article shall authorize States Parties to the

International Labour Organisation Convention of 1948 concerning

Freedom of Association and Protection of the Right to Organize to take

..,...="'""' ··'"''- ~··~"··-~-··-·.:.--~"'·'··•'-'•

 / 31
legislative measures \vbich would prejudice, or to apply the law in such a

manner as to prejudice, the guarantees provided for in that Convention.

ICCPR 25 Every citizen shall have the right and the opportunity,

without any of the distinctions mentioned in article 2 and without

unreasonable restrictions:

ICCPR 25 (a) To take part in the conduct of public affairs, directly or

through freely chosen representatives;

ICCPR 25 (b) To vote and to be elected at genuine pe1iodic elections

which shaH be by universal and equal suflrage and shall be held by secret

ballot, guaranteeing the free expression of the will of the electors;

ICCPR 25 (c) To have access, on general terms of equality, to public

J
service in his country.

ICCPR26 All persons are equal before the law and are entitled without

any discrimination to the equal protection of the law. In this respect, the

law shall prohibit any discrimination and guarantee to all persons equal and

effective protection against discrimination on any ground such as race,

....
colour, sex, language, religion, political or other opinion, national or social

origin, property, birth or other status.

ICCPR 27 In those States in which ethnic, religious or linguistic

minorities exist, persons belonging to such minorities shall not be denied

the right, in community with the other members of their group, to enjoy
 32
their own culture, to profess and practise their own religion, or to use their

mvn language.

H. lnternational Covenant on Economic, Social and Cultural Rights,

1966 (ICESCR)

ICESCR 2.1 Each State Party to the present Covenant undertake's to take

steps, individually and through international assistance and co-operation,

especially economic and technical, to the maximum of its available

resources, with a view to achieving progressively the full realization of the

rights recognized in the present Covenant by all appropriate means,

including particularly the adoption of legislative measures.

ICESCR 2.2 The States Parties to the present Covenant undertake to

guarantee that the rights enunciated in the present Covenant will be

exercised without discrimination of any kind as to race, colour, sex,

language, religion, political or other opinion, national or social origin,

property, birth or other status.

ICESCR 2.3 Developing countries, with due regard to human rights and

their national economy, may determine to what extent they would

guarantee the economic rights recognized in the present Covenant to

nonnationals.

ICESCR 3 The States Parties to the present Covenant undertake to

ensure the equal right of men and women to the enjoyment of all econ01nic,

social and cultural rights set forth in the present Covenant.

--·-··-· .& •• ·-
 33
ICESCR 4 The States Pmiies to the present Covenant recognize that,

in the enjoyment of those rights provided by the State in conformity with

the present Covenant, the State may subject such rights only to such

limitations as are determined by law only in so far as this may be

compatible with the nature of these rights and solely for the purpose of

promoting the general welfare in a democratic society.

ICESCR 5.1 Nothing in the present Covenant may be interpreted as

implying for any State, group or person any right to engage in any activity

or to perform any act aimed at the destruction of any of the rights or

freedoms recognized herein, or at their limitation to a greater extent than is

provided for in the present Covenant.

ICESCR 5.2 No restriction upon or derogation from any of the

fundamental human rights recognized or existing in any country in virtue

of law, conventions, regulations or custom shall be admitted on the pretext

that the present Covenant does not recognize such rights or that it

recognizes them to a lesser extent."

21. DRAFT NATIONAL HUMAN RIGHTS COURTS

REGULATIONS, 2018

"Draft National Human Rights Courts Regulations, 2018

Gaz. oflndia dated , 2018

INTRODUCTION

~-~ L --""····-~ -~ •• , _ _ ....,.-. . ~·-·-"·~--·'--''--~·

 34
In exercise ofthe powers confened by sub-section (3)ofSection 40-

B of the Protection of Human Rights Act, 1993 (Central Act 10 of

1994), the National Human Rights Commission hereby makes the

following Regulations, namely

Regulation 1 - Title and commencement

(1) These regulations may be called the National Human Rights

Courts Regulations, 2018.

(2) They shall come into force from the date of their publication in

the Official Gazette.

Regulation 2 - Definitions

(1) In these regulatiqns, unless the context otherwise requires -

(a) "Act" means the Protection of Human Rights Act, 1993 (Central

Act 10 of 1994);

(b) "Code" means the Code of Criminal Procedure, 1973 (2 of 1974 );

(c) nHuman Rights Court" means a Court of Sessions designated as

Human Rights Court by the State Government with the concurrence

of Chief Justice of the High Court to try an offence of violation of

human rights or in the alternative the District & Sessions Judge of

the District/ Sessions Division having jurisdiction.

(d) "Section" means section of the Act.

,., ..................._,_ ........... ~ ....;,.,.,.:,._.,:..; __ ....._. ,,...,.,><=o<.o.'-·''·--'- ,__ ,, ____ ~·

 35
(2) 'vVords nnd expressions used herein and not defined but defined

in the Act shall have the meanings respectively assigned to the1n in

the Act.

CHAPTER I

Regulation 3 - Powers of the Court

All offences of violation of human rights shall be tried by the Human

Rights Court appointed under Section 30 duly enabled with

independent human rights prosecutor appointed under Section 3 1 or

in the alternative by the District & Sessions Judge of the District/

Sessions Division having jmisdiction. The Court may take

cognizance of any offence, without the accused being committed to

it for trial.,

Regulation 4 - Powers of the Court with respect of other offences

The Human Rights Court, while trying an offence of violation of

human rights may charge and try an accused for any other offence

which may have been committed by the accused in the course of the

same transaction in one trial for every such offence.

Regulation 5 - Jurisdiction

Any offence of violation of human rights shall ordinarily be tried by

the Human Rights 'Court, with the assistance of the independent

human rights prosecutor appointed under Section 31, within whose

local jurisdiction it was committed.

 ~'
36
I, ),

Regulation 6 - Procedure and powers of Coun

(1) A victim of an offence arising out of violation of human rights,

his legal representative, or a registered non-Govcn1mental

Organisation, National Human Rights Commission (NHRC

hereinafter), State Human Rights Commission (SHRC hereinafter),

independent human rights prosecutor appointed under Section 31, or

a public person may file a complaint against a public servant who

has committed or abetted the commission of an offence of violation

of human rights, while acting under the colour of his office as a

public servant:

Provided a complaint on behalf of the victim may be filed by a Non-

Governmental Organisation or a public person only with prior

authorisation on affidavit by the victim.

(2) The Human Rights Court on receipt of such complaint, shall

order an investigation into the offence by a police officer not below

the rank of Superintendent of Police, NHRC, SHRC, or it may

'

proceed to conduct its own inquiry into the complaint in accordance

with the procedure for dealing with private complaints in the Code

of Criminal Procedure, 1973 (2 of 1974):

Provided that the Superintendent of Police shall complete such

investigation as far as possible within fifteen days, failing which he

shall report the progress of the investigation to the Human Rights

··.~~••• '"'-'--"'"- , _ _,___,_~• ._,_;;~_,...,".~ ; <'-<laue'• ·-o..L<C1:-•""·~-'>- ·'·"·' •• ,~.~-' ".___,_,,_""·'·'· • ' "·''--'·'""'• • -"·'· •" •
 •--·--'"'.<."-"''-'-'-I.·.J.!...=•'..!......~..:o •• • . , o

37
Com1 conccmcd with the case diaries and seek extension of time for

further investigation and complete the investigation within the

stipulated time.

(3) If after the investigation, the investigating officer reports to the

1
Court that no offence is made out, the Court shall s erve the

complainant with a notice for the purpose of deciding whether or not

there is sufficient ground for proceeding.

( 4) If on the basis of police or other report or the evidence collected

during preliminary inquiry, the Com1 is of the view that there is

sufficient material on record to proceed against the accused in

appropriate cases, the Court shall forward a copy of the complaint

along with the material evidence collected during investigating or

inquiry, as the case may be, to the Competent Authority under

Article 235 of the Constitution oflndia for its perusal for the purpose

of grant of sanction for the prosecution of the accused.

(5) The Competent Authority under Article 235 of the Constitution

'
of India shall dispose off the request for sanction within a period of

thirty days from the date of receipt of communication from the

Court.

(6) The trial before the Court shall be conducted, as far as may be

possible, in accordance with the procedure specified in the Code of

,)·< 38
Criminal Procedure, 1973 (2 of 1974) for trial before a Coun of

Session.

(7) The Court shall try the offence on day-to-day basis.

Regulation 7 - Special procedure for speedy trial

(1) The trial once commenced shall be held on day-to-day basis

provided it may be adjourned for more than a day, only for special

reasons to be recorded in writing.

(2) Such trial shaH have precedence over any other trial pending

against the same accused or accused persons in any other Court (not

being Human Rights Court)."

22. COPY OF LETTER TO HIGH COURT OF PUNJAB &

HARYANA FOR JURISDICTION MATTERS:

"HUMAN RIGHTS- CONSTITUTIONAL CRIMINAL LAW MATTER

From:
Lt Col Sarvadaman Singh Oberoi (Retd),
Tower 1 Flat No. 1102,
The Uniworld Garden,
Sohna Road, Sector 47,
Gurgaon, Haryane 122018,
Mob: 9818768349

To:
l.Ld. District & Sessions Judge -BY HAND
Gurgaon (On Administrative side)
Gurgaon 122001

2. Hon'ble The Chief Justice (On Administrative side)- BY HAND

The High Court of Punjab & Haryana
Chandigarh 16000 1
 39

Subject: Some Infom1ation on Constitutional Criminal Law- In Re

Setting Up of Human Rights Com1s at Gurgaon- with a humble request

Ref: Rules Cow.mittee set up by Hon 'ble High. Court to finalise Rules
under Sections 30 & 31 of Act No. 10 of 1994

Sir,

It is most respectfully informed and submitted by informant herein

that:

(1) Special Courts of Human Rights, till not set up under Sections 30 &

31 of Act No. 10 of 1994 was/is to be the court of Ld. District &

Sessions Judge in the District, for two reasons (I) there can be no

estoppel against law, (II) the Hon'ble High Court has directed, in the

case of certain other special com1s, that till such time as special

courts (of Session) have not been fully set up in any District, the

jurisdictional court shall be the court of Ld. District & Sessions

Judge in that District.

(2) That, at Gurgaon, as regards setting up of Special Court of Human

Rights, the forced inaction of the said court in pending matters

stretching back to 15.05.15 is traceable to the fact that although a

Section 30 notification was promulgated in July 2015, but no Section

31 notification has yet been made.

(3)Further, no rules have been made under Sections 30 & 31 of Act No.

10 of 1994, to lay down guidelines/ procedure for the special col' 11

:0=<:~.,..,}__._,~-··"-~•~· ,;.-~.
 40
on the lines of other special courts (eg Act No. 49 of 1988 & Act No.

32 of2012) for (1) "providing speec(t· trial of(ff"ences arising out of

violation of human rights", (II) identifying which are the offences

that the "State" may have committed on a person(s), (III) \vho all can

be accused, public officials/ private persons, (IV) who wo'uld grant

sanction for prosecution for these offences which are def]ned as

committed on a person(s) by the State or its agencies, (IV) who

would be the controlling authority of the public prosecutors,

especially now that the Hon'ble Supreme Court has clarified that the

ordinary prosecutors are not eligible in POCSO cases and

independent public prosecutors shall be appointed - this would

naturally apply with even greater force to Human Rights offences of

which POCSO related cases are a sub-class at least when a POCSO

related offence is committed by public/ police officials.

(4)There being two such-like cases (when a POCSO related offence is

committed by public/ police officials involving "constitutional

criminal law" before Ld. District & Sessions Judge (CRM 130 of

2016 & TA 112 of 2017 NDOH: 27.11.17) besides the six cases

pending since 2015/2016 before Shri A.K. Bishnoi (Ld. ASJ-02

Gurgaon) Nf?OH: 12.10.17, it is crystal clear that the stream of

justice has been delayed if not polluted and this is now a case of
 41 I
l
··constitutionai criminal !cnv'' requiring extraordinary response from ~
our already overstressed j udiciaJ system.

(5) That it would be in the interests of justice, if, as a first step to avoid
'
contradictory orders (and keeping in view that the court of Shri A.K.

Bishnoi (Ld. ASJ-02 Gurgaon has been estopped by the cemtinuing

non-provision of"independent public prosecutor" as also vacuum of

appropriate "Rules under Sections 3 0 & 31 of Act No. 10 of 1994")

all the eight cases are brought before the one and onlv

appropriate court of Ld. District & Sessions Judge, after

obtaining necessary orders from the competent authoritv on the

administrative side, regardless of the fact that application may or

may not have been moved on the judicial side as transfer power has

been held to be available both on the administrative as well as the

judicial side (under the peculiar circumstances hereinabove

elucidated).

PRAYED ACCORDINGLY

Place: Gurgaon

Date: 12.10.2017/
13.10.2017
Lt Col Sarvadaman Singh Oberoi (Retd),
Tower 1 Flat No. 1102,
The Uniworld Garden,
Sohna Road, Sector 47,
Gurgaon, Haryana 122018,
Mob: 9818768349
I
42
Copy to:

The Ahlmad in the Court of Shri A.K. Bishnoi (Ld. ASJ-02 Gurgaon)

Cases (all NDOH: 12.1 0.2017):

1. CRR 179/15
2. CRR 195/15
3. CRMP 36/16
4. CRM 149116
5. CRM 115/17
6. CRM 116/17"

23. SOME-QUESTIONS OF LAW OF IMPORT BEFORE THE

PUNJAB & HARYANA COURT:

"IN THE HIGH COURT FOR THE STATES OF PUNJAB &

HARYANA AT CHANDIGARH
Civil Writ Petition No. 24079 of 2015
NDOH: 29.01.2018
IN THE MATTER OF:
Sarvadaman Singh Oberoi ....... Applicant/Intervenor/Affected party
IN THE MATTER OF:
Smt. Rani Devi L/SI .... Petitioner
VERSUS
National Human Rights Commission and others ..... Respondents

FINAL ARGUMENTS IN THE FORM OF QUESTIONS OF LAW

Q. CWP 24079/15 CRM-M 5280/15 CRM-M 976/15

No. NDOH: 29.01.18 NDOH: 19.02.18 NDOH: 30.01.18
l (1) Whether directions ( 1) Whether directions (!)Whether directions
I
I
of NHRC are binding of NHRC are binding of NHRC are binding
on the State I Central on the State I Central on the State I Central
'
 ,,,- •-•~· .'.•.•.-.•-• ..· ·-.·-,.-:-.·~·, •·• o<," ... _.,·,, •~-- ~: ..~~...' :-,;•,' .:o.' .. ·~1.•, ,•_•, ; .•.• ;.~.::~~:-~.C. ~.:.!~ir.::._

r~~
43
~~-~G~vem1;1ent;_?_______ Governments? ' Govemments?[Rec·em
: I
I [Recent judgment of [Recent judgment of judgment of the
I the A!lahabad High the Allahabad _High Allahabad High Court
I Court in Writ Civil No. I Court in Writ Civil I zn Writ Civil No.
I
I
15570 of 2016 titled No. 15570 of 2016 15570 of 20i6 titled 1
I
State Of UP. And 2 titled State Of UP. State Of TY.P. And 2
Others v. N.H.R. C. I And 2 Others v. 1 Others v. JV.HR.C

I And 3 Others decided I N.H.R. C. And 3 I And 3 Others decided

I on 08.04.16 by Dr D Y I Others decided on on 08.04.16 by Dr D Y

Chandrachud, CJ I 08.04.16 by Dr D Y I Chandrachud, CJ

:
(now H on'ble Judge of I Chandraclzud, (now Hon 'ble Judge of

I the Supreme Court ofl CJ(now Hon 'ble I the Supreme Court of
india) and Yashwant Judge of the Supreme india) and Yashwant
Varma, J in accord Court of India) and Varma, J in accord
with Remdeo Chauhan Yashwant Varma, J in with Remdeo Chauhan
v. Bani Kant Das accord with Remdeo v. Bani Kant Das
[201 OJ 15 (ADDL.) I Chauhan v. Bani Kant I [201 OJ 15 (ADDL.)
S.CR. 957 per contra I Das [2010J 15 I S.CR. 957 per contra
Jatt Ram vs Punjab (ADDL.) S. CR. 957 Jatt Ram vs Punjab _
I
State Human Rights per contra Jatt Ram State Human Rights
Commission, (2005) vs Punjab State Commi,ssion, (2005)

141 PLR 297 (DB), Human Rights 141 PLR 297 (DB),

Karanataka Commission, (2005) Karanataka

Antibiotics and Anr v. 1 141 PLR 297 (DB), Antibiotics and Anr v.
National Commission I Karanataka National Commission

SC and ST, ILR 2008 Antibiotics and Anr v. SC and ST, ILR 2008
Kar 3305, Indian National Commission Kar 3305. indian

Institute ofl SC and ST, ILR 2008 I Institute of

 ~~

~--- -~,T~~:hnol;-~, ------··· ~:,~- Kc~-;--- 3305.lndian Technolor;z:v

44
v. l
II
I
1
<......--,....

National Commission Institute

• '---·

of National Commission
\

l
'
fE
~.:....:..:

!for Schedul~d Castes Technology . . v. for Scheduled .Castes j

r
~~
! and Schedwed Trzbes, Natwnal Commzsswn and Scheduled Tnbes. 1

I (2004)74 DRJ 109, for Scheduled Castes (2004)74 DRJ 109. I

1
T Vellaiyan v. and Scheduled Tribes, T. Vellaiyan
1
v.l ~
IE1
~
Registrar, State (2004)74 DRJ 109, . Registrar, State ~
Human Rights T Vellaiyan v. 1 Human Rights

Commission, AIR Registrar, State I Commission, AIR

2005 JUad 80, I Human Rights 2005 Mad 80,

VM.Thiaggu v. 1 Commission, AIR VM.Thiaggu v.

Karnataka State I 2005 Mad 80, Karnataka State

Commission for I VM. Thiaggu v. Commission for

Women, Decided On: Karnataka State I Women, Decided On:

06.06.2009 by the Commission for I 06.06.2009 by the

Karnataka High I Women, Decided On: I Karnataka High

Court, Vikram Sharma I 06.06.2009 by the I Court, Vikram Sharma
v. Union of India, I Karnataka High v. Union of India,

171 (2010)DLT671, Court, Vikram 171(2010)DLT671,

Rajesh Das vs Tamil I Sharma v. Union of I Rajesh Das vs Tamil
Nadu State Human I India, Nadu State Human
Rights Commission, I 171 (20 1O)DLT671, Rights Commission,

Decided on 1 Rajesh Das vs Tamil I Decided on

27.08.2010 by the Nadu State Human I 27.08.2010 by the
Madras High Court. ] Rights Commission, I A1adras High Court. ]

[This (and some other 1 Decided on I [This (and some other

questions of lmv) 127.08.2010 by the questions of law)
Madras High Court. ] requires
requires

-~~~-,.,_.,..,..._
~-~-.
"••.c._.;,..,"-'.~.ul
 45
----r~~terp;---:;t-;{ion --~-f/-[ih-is (and son1c other inte1pretation of\'
[Article 51(c) read with [questions of law) Article 51(c) read-...vith 1

! Articles 14, 19, 21 & I requires Articles 14, 19, 21 & I

22 of the Constitution I interpretation of I 22 of the Constitution
of India, hence also Article 51 (c) read lVith of India, hence also
involves a deeper Al'ticles 14, 19, 21 & involves 1
a deeper
considerations of I 22 of the Constitution I considerations of

Basic Structure I of India, hence also I Basic Structure

Doctrine ll1 our 1 involves a deeper I Doctrine zn our

evolving hurnan rights I considerations of I evolving human rights

law} Basic Structure I law]

Doctrine l1l our
evolving human rights
law]

2 (2) Whether, where I (2) Whether, where I (2) Whether, where

any party to any case any party to any case any party to any case
has been denied the has been denied the has been denied the
protection of any law protection of any law protection of any law
to which she is to which she is to which she IS

entitled, the residuary entitled, the residuary entitled, the residuary

clause in sub-section clause in sub-section clause in sub-section
G) of Section 12 of the G) of Section 12 of the G) of Section 12 of the I
Human Rights Act, Human Rights Act, Human Rights- Act, 1

1993 is capable of 1993 is capable of 1993 is capable of

interpretation wide I int_erpretation wide I interpretation wide
enough to enlarge the enough to enlarge the enough to enlarge the
jurisdiction of the jurisdiction of the jurisdiction of the
National Htman I National Human I National Human
 46
~---fRights --(_-;~;~~i~~~cmTF.ight~ --C~ommi~sion I Rights Commissio~~
I I (NHRC) so as to (NHRC) so as to (NHRC) so as to I
[ enable it to inquire enable it to inquire enable it to inquire
I into cases, wherein into cases, \Vherein into cases, wherein
criminal or other criminal or other criminal or other
proceedings are 1 proceedings are 1 proceedin,gs are
pending in a com1 of I pending in a court of I pending in a court of
law; [Remdeo I law; [Remdeo !law; [Remdeo
Chauhan v. Bani Kant I Chauhan v. Bani Kant I Chauhan v. Bani Kant
Das [2010} 151 Das [2010} 15 Das [2010} 15
(ADDL.) S.C.R. 957 (ADDL.) S.CR. 957 (ADDL.) S.C.R. 957
per contra SC and ST per contra SC and ST per contra SC and ST
employees' 1-velfare employees' welfare employees' welfare I
association v. Union association v. Union association v. Union
ofIndia, (1996) 6 SCC ofIndia, (1996) 6 SCC ofIndia, (1996) 6 SCC
606, N. C.Dhoundial v. 606, N. C.Dhoundial v. 606, N. C.Dhoundial v.
Union of India, AIR Union of India, AIR Union of India, AIR
2004 SC 1272] and 2004 SC 1272] and 2004 SC 1272] and
II
[This (and sorne other I [This (and some other I [This (and some other
questions of law) I questions of law) I questions of law)
requires requzres requzres
interpretation I
of interpretation of I interpretation of
Article 51 (c) read with Article 51 (c) read with / Article 51 (c) read with
Articles 14, 19, 21 & Articles 14, 19, 21 & Articles 14, 19, 21 &
22 of the Constitution 22 of the Constitution 22 of the Constitution
of India, hence also of India, hence also of India, hence also
involves a deeper involves a deeper involves a deeper
considerations of I considerations of I considerations of
 ll
~~

47 ~
ID.

~
~---···-s:u;i~~----·---s{;~uc.ru:<;rsasic ------ Srructur~TBasic 10

I Doctrine in our I Doctrine in our I Doctrine i

I evolving human rights evolving human rights I evolving human rights
I Jaw} , law} !law}

I 3 (3) if so, Whether this I (3) if so, Whether this I (3) if so, Whether this
power extends to a power extends to a .power extepds to a
private party, a public private party, a public private party, a public
institution, the institution, the institution, the

government or even government or even , government or even

the Courts ofla'.v; and, I the Courts oflaw; and, I the Courts oflaw; and,

[This (and some other I [This (and some other [This (and some other
questions of law) I questions of law) questions of law)
requires requires requires

interpretation of I interpretation of! interpretation of

Article 5l(c) readwith Article 51(c) read with Article 5l(c) read with
Articles 14, 19, 21 & Articles 14, 19, 21 & Articles 14, 19, 21 & I
22 of the Constitution 22 of the Constitution 22 of the Constitution
of India, hence also of India, hence also of India, hence also
involves a deeper involves a deeper involves a deeper·
considerations of considerations of considerations of

Basic Structure Basic Structure Basic Structure

Doctrine zn our Doctrine in our Doctrine zn our

evolving human :ights evolving human rights evolving human rights

law] law} law}

4 I (4) if so, Whether the (4) if so, Whether the (4) if so, Whether the
NHRC could in terms NHRC could in terms NHRC could in terms
of Articles 8 and 9 of of Articles 8 and 9 of of Articles 8 and 9 of
 48
--jfue----------U~i"I/~J~all the______Univers<~ the Universal~

J Declaration of Human I Declaration of Human I Declaration: of Human

I Rights, 1948 read with Rights, 1948 read with Rights, 1948 read with
Article 18 of the Article 18 of the Article 18 of the
United Nations I United Nations I United Nations
Covenant on Civil and Covenant on Civil and I Covenan~ on Civil and
Political Rights, 1966, Political Rights, 1966, I Political Rights, 1966,
mqmre into cases inqmre into cases inquire into cases
where any party in any where any party in any where any party in any
1

case has been denied case has been denied case has been denied
the protection of any the protection of any the protection of any
law to which he is law to which he is law to which he IS

entitled, by the High entitled, by the High entitled, by the High

Courts, as is alleged Courts, as is alleged Courts, as is alleged
by petitioner in this by petitioner in this by petitioner in this
case, or even this case, or even this case, or even this
Hon'ble Court, so as to Hon'ble Court, so as to Hon'ble Court, so as to
establish even a case establish even a case establish even a case
of violation of Article of violation of Article of violation of Article
21 by a judgment or 21 by a judgment or 21 by a judgment or 1

order passed in writ or order passed in writ or order passed in writ or I

any other jurisdiction, any other jurisdiction, any other jurisdiction,
as seems to have been as seems to have been as seems to have been
held, of course with held, of course with held, of course with
the prior concurrence the prior concurrence the prior concurrence
of the Apex Court/ of the Apex Court/ of the Apex Court/
concerned High Court; I concerned High I concerned High

and, Court; and, Court; and,

 49
r-· I [This (an:T~-;-I;;·;-otl~;;--j7ihz~~-(m;~:; s;;;ne-other I fThi5:-(~md some other
questions of laH) I questions of lmt~ j questions of law)
requzres I requires 1 reqwres
interpretation of I inte1pretation of I interpretation of
Article 51 (c) read with Article 51(c) read with Article 51 (c) read with
Articles 14, 19, 21 & Articles 14, 19, 21 & Articles ~ 4, 19, 21 &
22 of the Constitution 22 of the Constitution 22 of the Constitution
of India, hence also of India, hence also of India, hence also
involves a deeper involves a deeper involves a deeper
considerations of considerations of considerations of I
Basic. Structure I Basic Structure I Basic Structure
Doctrine lJ1 our 1 Doctrine ll1 our 1 Doctrine zn our
evolving human rights evolving human rights evolving human rights I
law} law} law]

5 I (5) Whether the (5) Whether the (5) Whether the

scope of powers of the scope of powers of the scope of powers of the
National Human I NationalHuman National Human
Rights Commission is Rights Commission is Rights Conunission is
fully encapsulated in fully encapsulated in fully encapsulated m
the law mentioned in the law mentioned in the law mentioned in
Remdeo Chauhan v. Remdeo Chauhan v. I Remdeo Chauhan v.
Bani Kanta Das, 2010 Bani Kanta Das, 2010 I Bani Kanta Das, 2010
(14) ·sec 209 (2 1 (14) sec 209 (2 1 (14) . sec 209 (2
judges) wherein, as \judges) wherein, as I judges) wherein, as
regards scope of regards scope of regards scope of
powers of NHRC, the powers of NHRC, the powers of NHRC, the
Apex Court, after Apex Court, after 1 Apex Court, after
discussing ADl\1 I discu· sing ADM I discussing ADM
 50
j I Jabalpm--~~: Shivakant i Jabaip~;~:- v~Shiv~tkm;t 'Jab;lp~tr v. Shivak~
I I
I Shukla, 1976 (2) sec Shukla, 1976 (2) SCC Shukla, 1976 (2) SCC
521 (5 judges) 521 (5 judges) 521 (5 judges)
1

(28.04.76) and the I (28.04.76) and the I (28.04. 76) and the
dissenting opmwn of I dissenting opinion of I dissenting opinion of
Justice H.R. Khanna Justice H.R. Khanna Justice B.R. Khanna
in ADM Jabalpur in ADM Jaba1pur in ADM Jabalpur
Case, overtumecl its Case, overturned its Case, overturned its
own earlier judgment own earlier judgment own earlier judgment
m rev1ew by m review by m review by

upholding the upholding the upholding the I

supremacy of NHRC supremacy of NHRC supremacy of NHRC
to make statutory to make statutory to make statutory

recommendations recommendations recommendations

lying within the four lying within the four lying within the four
comers of the domain comers of the domain comers of the domain
of human rights I of human rights I of human rights
jurisdiction, in accord Ijurisdiction, in accord I jurisdiction, in accord
with International I with International I with International
Covenants acceded to Covenants acceded to Covenants acceded to
by India, · whereas by India, whereas by India, whereas
most of the High most of the High most of the High
Courts including the Courts including the Courts including the
Delhi and Punjab & Delhi and Punjab & Delhi and Punjab &
Haryana High Courts Haryana High Courts Haryana High Courts
per incuriam 20 I 0 per incuriam 2010 per incuriam 2010
(14) sec 209 (2 1 (14) sec 209 (2 1 (14) sec 209 (2
judges) have I judges) have I judges) have
 51
-~------------------ ··- ------------ -----
1 I progressively whittled progressively whittled progressively whittled I

down the scope of dovvn the scope of down the scope of

powers of NHRC and powers of NHRC and powers of NHRC and
even directed stay of even directed stay of even directed stay of
its 'recommendations' I its 'recommendations' I its 'recommendations'
merely because it was merely because it was merely becquse it was
couched in the couched in the couched in the
language of 'direction' !language of 'direction' I language of 'direction'
- it is of note that I - it is of note that I - it is of note that
'direction has been I 'direction has been I 'direction has been
defined as 'guidance or detined as 'guidance defined as 'guidance or
supervision of action or supervision of supervision of action
or conduct' in the action or conduct' in or conduct' in the
Merriam-Webster the Merriam-Webster I Merriam-Webster
Dictionary)? [Remdeo Dictionary)? [Remdeo Dictionary)? [Remdeo
Chauhan v. Bani Kant Chauhan v. Bani Kant Chauhan v. Bani Kant
Das [2010] 15 Das [2010] 15 Das [2010] 15
(ADDL.) S.C.R. 957, (ADDL.) S.C.R. 957, (ADDL.) S.C.R. 957,
State of UP. and Ors. State of UP. and Ors. State of UP. and Ors.
v. Ani! Kumar Sharma v. Anil Kumar Sharma v. Ani! Kumar Sharma
J

and Ors., 2015 (6) and Ors., 2015 (6) and Ors., 2015 (6)
sec 716, ADM sec 716, ADM sec 716, ADM
Jabalpur vs. Shivakant I Jabalpur vs. 1 Jabalpur vs. Shivakant
Shukla, 1976 (2) SCC Shivakant Shukla, Shukla, 1976 (2) SCC
521, Kesavananda 1976 (2) SCC 521, 521, Kesavananda
Bharati v. State of Kesavananda Bharati Bharati v. State of
Kerala, 1972 CriLJ v. State of Kerala, Kerala, 1972 CriLJ
1526] 1972 CriLJ 1526] 1526]
r
52
I [This (and some other [Thi~· (and ,~-~)~;;-~-(~th-er rThis (and some other
questions of /mt) 1
questions of len~;) I questions of law)
requzres 1 requires I requires
interpretation of I inte1pretation of I interpretation of
\
Article 51 (c) read with Article 51 (c) read with Article 51 (c) read with
Articles 14, 19, 21 & Articles 14, 19, 21 & Ariicles 14~ 19, 21 &
22 of the Constitution 22 of the Constitution 22 of the Constitution
of India, hence also of India, hence also 1 of India, hence also
involves a deeper involves a deeper involves a deeper
I considerations of considerations of considerations of
Basic Structure I Basic Structure I Basic Structure

Doctrine m our 1 Doctrine zn our 1 Doctrine zn our

evolving human rights I evolving human rights I evolving human rights
law} law} law}

6 I (6) Whether in such (6) Whether in such I (6) Whether in such J

cases of Articles 14, cases of Articles 14, cases of Articles 14,

19 & 21 violation 19 & 21 violation 19 & 21 violation
covered by Articles 8 covered by Articles 8 covered by Articles 8
and 9 of the Universal and 9 of the Universal and 9 of the Universal
Declaration of Human Declaration of Human Declaration of Human
Rights, 1948/ Article Rights, 1948/ Article Rights, 1948/ Article
18 of the International 18 of the International 18 of the International
Covenant on Civil and I Covenant on Civil and I Covenant on Civil and
Political Rights, 1966/ I Political Rights, 1966/ Political Rights, 1966/
Article 5 of the 1 Article 5 of the Article 5 of the
International International International
Covenant on Civil and I Covenant on Civil and I Covenant on Civil and
Political Rights, 1966 I Political Rights, 1966 I Political Rights, 1966
 C""'
-- ··-'
::-·,, •i\

- -·----- ---

by way of Articles 51 by vvay of Articles 51 by \vay of Articles 51

1

and 253 of the and 253 of the and 253 of the

Constitution of India, Constitution of India, Constitution of India,
the National Human the National Human the National Human
Rights Commission Rights Commission I Rights Commission
maybe empowered to maybe empowered to maybe empowered to
inquire and establish inquire and establish inquire and establish
accountability of the accountability of the accountability of the
judiciary, of course , judiciary, of course judiciary, of course
with prior concurrence I with pnor with prior concurrence
1

of the Apex Court/ I concurrence of the I of the Apex Court/

concerned High Court, I Apex Court/ I concerned High Court,

by exammmg the I concerned High I by exammmg the

judicial orders for I Co~1rt, by examining judicial orders for
prima facie violations the judicial orders for prima facie violations
of Article 21 as prima fac~e violations of Article 21 as
envisaged in Remdeo of Article 21 as envisaged in Remdeo
Chauhan v. Bani Kant envisaged in Remdeo Chauhan v. Bani Kant
Das [2010] 15 I Chauhan v. Bani Kant I Das [201 0] 15

(ADDL.) S.C.R. 957. I Das [2010] 15 I (ADDL.) S.C.R. 957.

[Remdeo Chauhan v. (ADDL.) S.C.R. 957. [Remdeo Chauhan v.
Bani Kant Das [2010} [Remdeo Chauhan v. Bani Kant Das [2010}
15 (ADDL.) S. CR. Bani Kant Das [201 OJ 15 (ADDL.) S. CR. I
957, State of UP. and 115 (-4DDL.)S. CR. I 957, State of UP. and
Ors. v. Anil Kumar I 957, State of UP. and Ors. v. Anil Kumar
Sharma and Ors., I Ors. v. Anil Kumar Sharma and Ors.,
2015 (6) SCC 716, Sharma and Ors., 2015 (6) SCC 716,
ADM Jabalpur vs. 2015 (6) SCC 716, ADM Jabalpur vs.
 54
.------ TA_____ ------- - ·-----~----------------~

Shivakant Shukla, 1 ADAI Jabalpur 1-'S. Shivakant Shukla, j

1976 (2) sec 521, Shivokant Shukla.,1976 (2) sec 521, I

Kesavananda Bharati I 197() (2) sec 521, I Kesavcmanda Bharati

v. State of' Kcrala, I Kesovananda Bhm·ati v. State of Kerctla, I
1972 CriLl 1526] I v. State of Kerala, 1972 CriLJ 1526]
[This (and some other 1 1972 CriLJ 1526] [This (an'rl some other
questions of law) [This (and some other questions
J of law) I
requires I questions of law) requires
interpretation of requires interpretation . of I
Article 51 (c) read with interpretation of I A rtic/e 5 I (c) read with I

Articles 14, 19, 21 & Article 51 (c) read with I Articles 14, 19, 21 &
22 of the Constitution Articles 14, 19, 21 & 22 of the Constitution
of India, hence also 22 of the Constitution of India, hence also
involves a deeper of India, hence also involves a deeper
considerations of I involves a deeper considerations of
I
Basic Structure I considerations of Basic Structure I
I

Doctrine l11 our I Basic Structure Doctrine zn our

evolving human rights I Doctrine zn our 1 evolving human rights

law} evolving human rights I law}

law}

7 I (7) Whether the High (7) Whether the High

Court has lost sight of Court has lost sight of

law, in CWP 24079 of law in CWP 24079 of

2015, ignoring the 2015, ignoring the

I findings of the NHRC findings of the NHRC

and thereby blocking and thereby blocking

the march of justice in the march of justice in

CRM-M 97G of 2016? CRM-M 976 of2016?

 55
r- [Instiwte of Chanered I jj~;~;;~:t L-;·;~.-;;f c!;~,~t;r;!j
Accountants of India I Accountants of India·
v. L.K. Ratna 1986 (4) v. L.K. Ratna 1986 (4)

sec 537. Chief sec 537, Chief

Executive Officer & Executive Officer & I

I

Vice-Chairman, Vice-Chairman,

Gujarat Nfaritime Gujarat JVfaritime

Board v. Haji .Daud Board v. Haji Daud .

Haj Harun Abu and _ Haj Harun Abu and 1

others 1996 (11) sec I l others 1996 o1) sec I

I i
23, Ramdeo Chauhan 23, Ramdeo Chauhan

@ Rajnath Chauhan @ Rajnath Chauhan

vs Bani Kant Das & vs Bani Kant Das &

Ors, [2010] 15 Ors, [2010] 15

(ADDL.) SC.R. 957, (ADDL.) S.CR. 957,

Beenu Rmvat v. Union Beenu Rawat v. Union

of India, 2013 (16) of India, 2013 (16)

SCC430} SCC430}

8 I (8) Whether the High (8) Whether the High

Court had the Court had the

jurisdiction to grant jurisdiction to grant

ex-parte stay of the ex -parte stay of the 1

I
operation of the order operation of the order

of the National Human of the National Human

Rights Commission Rights Commission

even without hearing even without hearing

the Commis~ion. the Commission.

 56
. -·· ·------·--·--rr<--·-·-·---·--·. ---····--··-
9 (9) Whether the High I 1 (9) \Vhether the High
I
Court went wrong and Court went wrong and
cormnitted error by committed error by
passmg an ex-parte passmg an ex-parte
interim order without interim order without
even serving copy of even ser'{ing copy of
the writ petition to the the writ petition to the
NHRC or the State ? NHRC or the State ?

110 ( 10) Whether NHRC (1 0) Whether NHRC .

~~~ .. ~+~-her'! ;~ d;~.,c+;.-.g
1~ I LlC>lLLI u Ill !l'v LH1 is justified in directing I
re-investigation of the re-investigation of the /
case FIR NO. case FIR NO.
428/2015 filed against 4 2 8/2 0 15 filed against
the petitioner and the petitioner and ·
some others? some others?

11 I (11) Whether the false (11) ·whether the (11) vVhether the false
implication in case clean chit hastily implication m case
FIR No. 428/2015 and given by NHRC FIR No. 428/2015 and
custodial torture of the without noticing or custodial torture of the
petitioner by the I hearing petitioners I petitioner by the
police as found by herein and even before police as found by
NHRC is required to conclusion of the NHRC is required to
be investigated by an mandatory 176 CrPC be investigated by an .

independent agency? enqmry Ill this independent agency? 1

custodial death IS

required to be
investigated, because
m Nidhan Biswas
 57
--~----- -·. -----------------~----·--·---

~--~ and Ors. vs State Of

II I
I
Tripura 2006 CriL.J
I
2429, I (2007) DMC I
I
313 the Gauhati High
Court held:
"However, this
discussion is
necessary in order to
highlight that it is the
general practice that
after an enquiry under
Section 174 or Section
176, CrPC during
which statements are
also to be recorded, if
evidence and
materials are
collected to make it a
prima facie case of
any offence, a regular
investigation was to
follow even without
any formal complaint
from anybody. "?

[In R. Kasth uri v.

State by The District
Collector, Cuddalore
and Ors., 2015 (1)
 58
. ----------~--------- ----- -
1
1 wnvN (Cr.) 290 it 1 - -

was held at J\'11NN I

(Cr.) p.306 at paras
32-33:

"32. The amendment

to sub-section (1) of
Section 176 and
introduction of sub-
section (1 A) was made
on the
recommendations of
the "National Police
Commission" in its 4th
Report. And, Han 'ble
Justice Malimath, in
his report, has very
categorically stated
that an inquiry to be
held by a Magistrate
shall not be equated to
an investigation by the
police. It has also
been stated that by
bringing back judicial
znquny under sub-
section (JA), there
shall be no merger of
tre Judiciary with the

,., __-, ___ ,,~,"-'-""""""' ~ .•...:.. •. -..., .............. ~ ..... _, __..,.,...._.. ...,_,_t...•·
.~"./d~c_....., .-'>o...r.~" -"-'"~••··•'''~~~-~,_,__,.,._,,::,..,:.."-""""._,_;._,_..,.-,.,_,,,"---~,;... -"'- ~"""""•'L".o,•M..... _ - •'•' , __.., •• • : ·~,..,-,.. "'' • •' ,, :.•,•-•· ,,, :•
 59
~
t•
~--~--~-~-~---------~~£.ye~'uti ve. -The-----·-----~-----

' I
Executive shall
ahvays be kept apart
from the Judiciary.

33. From the above

Reports, which are the
foundation for the
amendment of sub-
. section (1) of Section
\176 and introduction
of sub-section (1 A) of
Section 176 of the
Code, the conclusion
that an inquiry held by
a Judicial Magistrate
or Metropolitan
Magistrate is a
judicial inquiry zn
character and the
same does not either
form part of the
investigation or part-
take the character of
investigation is
fortified. Thus, I hold
that the Judicial I
Metropolitan
Magistrate shall not
 illegal action of the illegal action of the illegal action of the
police officials m police/ jail officials in police officials m

beating the arrested beating the undertrial beating the arrested

persons was contrary deceased was contrary persons was contrary

to law and the same to law and the same to law and the same
cannot be accepted in cannot be accepted in cannot be accepted in
a civilized society I a civilized society I a civilized society

''•··"''~"~-"-'-"·""'-'-I:_,.:Lo~~·. ',,...........,..,=..,;~,..:.--·~··llf~,.. .. ~_..... ··~~- ~-·~·' "<~-' > •O ''A~"'-''"••0"'~~-L.::<-._,-.;.,._,~•.•"'''~'- ·~- -~~''-- 'J, ·'"'" < ••••"0 ,•,,·~~-· •''-'"'"'"·... .<-,.-...... ., •.,..._,.,~ ................ ,~,.:.- 0.'• ''"
0
 61
1 govemed by rule of govemed by rule of ' govemed by rule of 1

I law? law? law? I

13 ( 13) Whether the (13) Whether the (13) Whether the I
police officials have police/ jail officials police officials have I
not only abused their 1 has not only abused not only abused their
power and authority, I their power and I power and authority,
but have also violated I authority, but have I but have also violated
the basic human rights also violated the basic the basic human rights I
of the anested persons human rights of the of the arrested persons
herein? undertrial . ?
deceased herem. 1/

herein?

14 (14) Whether it is a (14) Whether it is a (14) Whether it is a I

dereliction of duty of dereliction of duty of dereliction of duty of
the police officials I the police/ jail /.the police officials
who alone are privy to I officials who alone are I who alone are privy to
the beatings of I privy to the beatings I the beatings of
arrested persons now I of undertrial deceased I arrested persons now
claiming Ignorance 1 now claiming I claiming Ignorance
without making any 1 Ignorance without I without making any
efforts or conducting I making any efforts or I efforts or conducting
any investigation or I conducting any 1 any investigation or
even registering FIR? Iinvestigation or even even registering FIR? I
registering FIR?

15 I (15) Whether the (15) Whether the I (15) \Vhether the

I ,NHRC IS right Ill NHRC is right in not NHRC IS right m
directing the Director directing the Director directing'-' the Director
General of Police to General of Police to General of Police to
___J

;............. - '""-·•-'•-~"-~·""'"·~-.... '"''·-"--~- v...,..<ci.',.;-.-.,, •. ,. '"J.-.,.,,._,, ~•~-' ,_.• , , _,·.M•-c .. ,..,_,.,_.~,-""'--~~- .... ,.,,.,..,,..:;..;r. "''' ,.,....,. -~
_, .~ ...TL... ""'·-'-•'~·-.r~ . N.-:>.•,,,,," ' ' •. ., ~''f ~ , '''"-'• '•••o' _-,,._..~._ ->< -·· •0 -cr- ''~'·" •'-'''-"'·'-.0•' ,-< '.....:~
 62
I --r----~-------------------------1

iI get an enquiry through get an enquiry through I get an enquiry through '
.
I CB/CJD basis the CB/CID and I CB/CID basis the
I complaint of the I dismissing the complaint of the
anested persons/ I complaint without arrested persons/
friends and relatives of I hearing the relatives I friends and relatives of
the arrested persons? I of the undertrial I the arrest,ed persons?
deceased?

16 I (16) Whether the (16) Whether the I (16) ·whether the

debatable decisions in debatable decisions in I debatable decisions in
human rights related human rights related human rights related
matters of Hon'ble matters of Hon'ble matters :f Hon'ble I
'
Justice Jaspal Singh Justice Jaspal Singh Justice Jaspal Singh
to, firstly, reserve to, firstly, reserve I to, firstly, reserve 1

judgment on 26.05.16 judgment on 26.05.16 judgment on 26.05.16

in after notice criminal in after notice criminal in after notice criminal I

appeal (custodial appeal (custodial appeal (custodial I

death alleged basis a death alleged basis a death alleged basis a j

magisterial report) magisterial report) n1agisterial report) I

I
CRM-M 5280 o£2015 CRM-.M 5280 of2015 CRM-M 5280 of2015
on 26.05.16 without on 26.05.16 without on 26.05.16 without
hearing and without hearing and without hearing and without
summoning the lower summoning the lower summoning the lower
court record as also court record as also court record as also
delay in decision to delay in decision to delay in decision to
1

25.07.16 by Hon'ble 25.07.16 by Hon'ble 25.07.16 by Hon'ble

Justice Jaspal Singh Justice Jaspal Singh Justice Jaspal Singh
on application of a on applic~tion of the on application of the
petitioner in CRM-M petitioner in CRM-M petitioner in CRM-M
 63
----------T-- - -
I!No. 976 of 2016 No. 976 of 2016 i No. 976 of 2016

(custodial beating (custodial beating (custodial beating

alleged basis an alleged basis an alleo-ed

1:::: basis an

NHRC report) to NHRC report) to NHRC report) to

preserve the CDRs of preserve the CDRs of I preserve the CDRs of
mobile phones I mobile phones I mobile , phones
1 mentioned in her 1 mentioned in her mentioned in her
application thus application thus application thus I
allowing the CDRs to allowing the CDRs to allowing the CDRs to I
suffer destmction by suffer destmction by suffer destruction by I
efflux of time on I efflux of time on I efflux of time on
14.05.16 violate the I 14.05.16 violate the I 14.05.16 violate the
fundamental right to a I fundamental right to a I fundamental right to a
fair trial guaranteed by fair trial guaranteed by fair trial guaranteed by
I
I Constitution and law? Constitution and law? Constitution and law?

[This (and some other [This (and some other I [This (and some other
questions of law) I questions of law) I questions of · law)
requires requzres requzres
I

interpretation of I interpretation of interpretation

J of
Article 51 (c) read with Article 51 (c) read with Article 51 (c) read with
Articles 14, 19, 21 & Articles 14, 19, 21 & Articles 14, 19, 21 &
22 of the Constitution 22 of the Constitution 22 of the Constitution
of India, hence also of India, hence also of India, hence also
involves a deeper involves a deeper involves a deeper
considerations of I considerations of I considerations of

Basic Structure I Basic Structure I Basic Structure

Doctrine zn our 1 Doctrine zn our 1 Doctrine in our

--··-.,."~
 64
~-----~~vofvine human rie:hts evolving human rig/us evo/~---;;1g hz~man rights--!
I I ~ '-'

/ jzaw] lmt.} i
lcm) 1
I I
f171 (17) (17) Has a district (17) Has a distric~
I /police complaints I police complaints police complaints I
authority been I authmity been authority been
constituted in Gurgaon constituted in I constituted Ill

District headed by a Gurgaon District I Gurgaon District

retired District & I headed by a retired headed by a retired I
Sessions Judge as per I District & Sessions District & Sessions
mandate of Hon'ble Judge as per mandate Judge as per mandate
Supreme Court Order of Hon'ble Supreme of Hon'ble Supreme
dated 03.01.07 in Court Order dated Court Order dated
Prakash Singh and. 03.01.07 in Prakash 03.01.07 in Prakash
Others v. Union of Singh and. Others v. Singh and. Others v.
India (2006) 8 sec 1? I Union of India (2006) Union of India (2006)
8 sec 1? 8 sec 1?

18 I (18) If no such (18) If no such (18) If no such

district police district police district police
complaints authority complaints authority complaints authority
headed by a retired headed by a retired headed by a retired
District & Sessions District & Sessions District & Sessions
Judge has been I Judge has been I Judge has been
appointed should the appointed should the appointed should the
District & Sessions District & Sessions District & Sessions
Judge, Gurgaon not be Judge, Gurgaon not be Judge, Gurgaon not be
interim head of the interim head of the interim head of the
district police I district police I district police
I
J I complaints authority I complaints authority I complaints authority

_,,._,.,,_.., •.. ,."'"''"''....._,.... ""'--·~·--""'·; ..,..,. ., . ....,_,. ··~cu.- ,_ ..J,.. ·'- <'-•~'-.u.--~"'·:c-:. •• ~_.:,.-_____ ,),·t.<-'-'>...,._.,;..,.,: ·c~~· '""""'''"'"'"' ...,_,_....,.... ~,;;,_,,
 65
~~~ such time as r;]l such --ti;;e ---;:rtill such . tin~~---as i
I appointment is done of I appointment is done appointment is done of i
I a retired District & , of a retired District & a retired Djstrict & I
i Sessions Judge? ISessions Judge? Sessions Judge?

19 I (19) Is it permissible' ·-------r-- - - -Is-it-pennissible

(19) -----,

for the police/ for the police/

administration of the administration of the

State Government State Government

(second tier of (second tier of I

g "'V""mrn""nt\
V \,...l .1.1.1.1'-'.l.lLj
tA ianArP
LV J..b.J..lVJ..""
government) to ignore I

the constitutional the constitutional

functions of the functions of the

Municipal Municipal

Corporation of Corporation of

Gurgaon (third tier of Gurgaon (third tier of

govemment)and beat government)and beat

black and blue from black and blue from

head to toe, and spine/ head to toe, and spine/

shoulder etc, shoulder etc,

lacerations, bruises lacerations, bruises

and blood congealed and blood congealed

etc with lathis the etc with lathis the

Ward 30 councilor Ward 30 councilor

who the SHO P.S. who the SHO P.S.

Sadar, Gurgaon very Sadar, Gurgaon very

well recognizes, who well recognizes, who

was only filming from was only filming from

a distance the a distance the

 66
---ill~g<~l~
r:--------------------~-----------------

~- 1allegedly illegal f
I allegedly
-1
proceedings of proceedings 0f I
I
demolition for which demolition for which I
no formal order m no formal order in /

accordance with law accordance with law j

I

was giVen to the was gr'l,{en to the I

I
villagers or their villagers or their I
elected representative, elected representative, 1

councilor Ward 30, councilor Ward 30, 1

Nisha Singh? [S. R. I Nisha Singh? [S. R.l

Bommai v. Union of Bommm v. 0 u mon o fl·
0

India 1994 (3) SCC 1] India 1994 (3) SCC 1]

20 (20) Whether (20) Whether

without the mandatory without the mandatory I

. ~ I
sanction for sanctiOn 1 or

prosecution having prosecution having

even been sought by even been sought by

police of Ms. Nisha police of Ms. Nisha

Singh, [a rMember' by Singh, [a 'Member' by

I election of the election of the

Municipal Municipal

Corporation of Corporation of

Gurgaon, who enJoys Gurgaon, who enJoys

statutoiJI status u/s 21 statutory status u/s 21

IPC of a public servant IPC of a public servant

m terms of the m terms of the

mandate of Section mandate of Section

41 0 of Haryana Act 41} of Haryana Act

 67
~-------- No:-16~f 1994], couldT~------ No. 16 of 1994], could :
. . '
'

'
J she be subjected to '' she be subjected to

I I framing of charges framing of charges

without being heard without being heard

on the evidence of her on the evidence of her

innocence available in innocence available
I
in
videography recorded videography recorded

by the police which by the police which

should have been put should have been put

to the test of judicial / to the test of judicial
I scrutiny per law well scrutiny per law weil

settled? settled?

I 21 (21) Whether (21) vVhether

information pnrna information pnma I

I

facie disclosing a facie disclosing a

possible cognizable possible cognizable

offence by a bunch of offence by a bunch of

unidentified police unidentified police

officials of the o/o officials of the o/o

DCP East Gurgaon DCP East Gurgaon

U/S 166A(b) r/w 201 U/S 166A(b) r/w 201

& 34 IPC, it being well & 34 IPC, it being weli

settled at common law settled at common law

since 1865 [Regina V. since 1865 [Regina V.

Puddick [1865] 176 Puddick [1865] 176

ER 662] and in Article ER 662] and in Article

141 law that all 141 law that all

investigation IS investigation IS
 68
/ .
mandated to be just I mandated to be just i

I
and impartial so that a and impartial so that a

citizen is exposed only citizen is exposed only

to a fair trial may be to a fair trial may be

dismissed without dismissed without

registering an FIR? registering' an FIR?

(2014 (2) sec 1) (2014 (2) sec 1)

22 I (22) When a breach (22) When a breach

. of the mandate of . of the mandate of /

II ~"""t;t'\.,
U\...Vl.lVl..l
156
.1 I
fl \
\_.._/
rrPr
..._..._.._ ...............
1 Section
. -
154 (1)
' CrPC I
/

was alleged by was alleged by

applicant alleging applicant alleging

facts which if found facts which if found

true constituted true constituted

cognizable offence cognizable offence

whether the whether the

Commissioner Police, Commissioner Police,

Gurgaon is in breach Gurgaon is in breach

i of judicial nonns of judicial norms

particularly by his particularly by his

inaction and delay in inaction and delay in

the face of a the face of a

communication from communication from

the Executive the Executive

Magistrate, Gurgaon, Magistrate, Gurgaon,

and has he therefore and has he therefore

I flouted the mandate of flouted the mandate of

Sec6on 154 (3) CrPC? Section 154 (3) CrPC?

I
 69
1
~23-1-23) \Vh~the1~ th~re ~------------- (23} \Vhether, there
' - I
i
I is a bar of Proviso (a) is a bar of Proviso (a)
I -
I on preventive on preventive
I detention u/s 116 (3) detention u/s 116 (3)

CrPC when no case at CrPC when no case at

all was ever made all was, ever made
against applicant of against applicant of
any cognizable any cognizable

offence that he has, is offence that he has, is

or may m future or may m future

commit, for which commit, for which

alone an order of alone an order of

preventive detention preventive detention

could be passed u/s could be passed u/s

116 (3) CrPC because 116 (3) CrPC because

no action was ever no action was ever I

proposed to be taken proposed to be taken -

or was ever taken or was ever taken

under Sections 108, under Sections 108,

109 or 110 CrPC, 109 or 110 CrPC,

because petitioner because petitioner

does not fall in anyone does not fall in anyone

ofthe categories of (1) ofthe categories of (I)

Disseminating Disseminating

seditious matters, (2) seditious matters, (2)

Person taking Person taking

precautions to conceal precautions to conceal

his presence or (3) his presence or (3)

... ,._ ,.____,__., ··~···''d....,....:;;,:..-.~~~"""-~·-· _.,. .,..:.,.-__,..._, ...._,._,.,c!...·,;< ...- _,,,, ....;-
 --1.0--
r---~- Habitual-- offender
0;-r-- - ------ Habitual ot1ender or

I so dangerous as to so dangerous as to
render his being at render- his being at 1

large without security large without security

hazardous to the hazardous to the
community? [State of community? [State of
· Orissa v. Manilal Orissa v. Manilal
Singhania, 1976 (2) Singhania, 1976 (2)
-sec 808 (3 judges) sec 808 (3 judges)

! compared with ADM compared

•
with ADM_I
I . Jabalpur vs. Shivakant
I

Jabalpur vs. Shivakant

I Shukla, 1976 (2) SCC Shukla, 1976 (2) SCC
521 (5 judges) r/w 521 (5 judges) r/w
dissenting opinion of dissenting opinion of

Justice H.R. Khar.u'la Justice H.R. Khanna

rlw Ram Deo Chauhan r/w Ram Deo Chauhan
v. Bani Kanta Das, v. Bani Kanta Das,

2010 (14) sec 209 (2 2010 (14) sec 209 (2

judges)] judges)]

24 I (24) Whether per (24) Whether per

law well settled over at law well settled over

least 150 years since at least 150 years since
1865, the records of 1865, the records of
videography seemmg videography seemmg

to exonerate Nisha to exonerate Nisha

Singh needs must have Singh needs must have

been produced before been produced before

the framing of the framin~ of

~ -"-• o•O.,,L'<'.o\."-~'"·''\L"'"" ..... ,.....,,,....,, ,,,,,...;~...... ......:..-~'"'·~~jF.,o;+,">..... oi,o:,!...>•'<<•o"ru"~~L-,_...,_._.;.,,~,, ... ~ ••·"~·'''""~""""-"'·" ......... ,'h'> ....... ~ ......, ..... ,,;.,_,~,"-',..,,,.,.. ....:..... ,~~"-"'"'·''~o ..... .>'.............,.;;.-.... ....,., -' • • • ·,,.
~~- ...~>!~ •• ~ ,..,_,od,-..,;,,,......,.......... , ~~~ .. ~-·...<.>""' ,.,:,• .~~· 'h .,._.L,.>•
 /~-.
71
r--T chm~-_g;~-,---p~~- -~~Jell ---------------- ---~charges-,-J)Cr --~veil I
I I
1
settled law stretching i settled law stretching
from 1865 AD, as it is I from 1865 AD, as it is
I
long established at
I/long~- established at
common law that "that / common bw that "that
those who prepared . those who prepared
1

and conducted 1 and conducted

prosecutions owed a prosecutions owed a
j duty to ensure that all _ duty to ensure that all
I

1 relevant material of j I relevant material of/

I help to an accused was help to an accused was
either led by ·the either led by the
prosecution or made prosecution or made
available to the available to the
defence."? [Nunn v defence."? [Nunn v
Suffolk Constabulary Suffolk Constabulary
and Another,[20 12] and Another,[2012]
EWHC 1186 EWHC 1186
(Admin)] [Regina v. (Admin)] [Regina v.
Puddick [1865] 176 Puddick [ 1865] 176
ER 662 re-iterated in ER 662 re-iterated in
R. v. Banks, 1916 (2) R. v. Banks, 1916 (2)
KB 621, Medichetty KB 621, Medichetty
Ramakistiah And Ors. Ramakistiah And Ors.
v. The State of v. The State of
Andhra ·Pradesh, AIR Andhra Pradesh, AIR
1959 AP 659, 1959 1959 AP 659, 1959
CriLJ 1404, Lt. Col. CriLJ 1404, Lt. Col.

:··;~~:~~:~~~==::::.::~:~~~~~~~~·-----~~,-~--- ~~~----~:~-~~"~~~~--~-~~~o--~~·-~·-=··-~-"·~---~~~"'"'><g,.~-~~~---.., ,_, .............. """~-· --.' ·-. -~· ·'

... ;-(o...,.;-,, .,_,...._.£ ..~ -... ~,..,,.. ••• .,~ . . . ""·. ~---~ ..........- .>- ~: -·:.<~··-;""".
 ,~,
72
i '.
------T--·---··--···---- ··-----··-----------------------------

1 K.C. Sud v. S.C. i j K.C. Sud v. S.C.\

1
I Gudimani, 1982 CnLl I Gudimani, 1982 CriLl I
12779, 20 (1981) DLT I 2779, 20 (1981) DLT
1302, ILR 1981 Delhi 302, ILR 1981 Delhi
· 680, Nunn v. Suffolk I i 680, Nunn v. Suffolk

Constabulary and Constabulary and

I

Another, [2012] Another, [2012]

EWHC 1186 EWHC 1186

(Admin)] (Admin)]

25 I (25) Whether or not (25) Whether or not (25) Whether or not

such type of inaction such type of inaction such type of inaction
of the State (which of the- State (which of the State (which
1

I I term in its wider avatar I term in its wider term in its wider
includes the executive, avatar includes the avatar includes the 1

tribunals and courts) executive, tribunals executive, tribunals

that makes any 1 and comis) that makes I and courts) that makes

substantive prov1s10n 1 any substantive 1 any substantive

of a welfare oriented I provision of a welfare I provision of a welfare

legislation m 1 oriented legislation in I oriented legislation in

furtherance of Article I furtherance of Article furtherance of Article
21, such as Sections 21, such as Sections 21, such as Sections
30 & 31 of the 30 & 31 of thet30 & 31 of the
Protection of Human I Protection of Human I Protection of Human
Rights Act, 1993, for Rights Act, 1993, for Rights Act, 1993, for
provision of Human provision of Human provision of Human
Rights Courts of Rights Courts of Rights Courts of
Sessions and Human Sessions and Human Sessions and Human
R; shts Special Public \ Rights Special Public I Rights Special Public
 73
.------~-1;-r-~~-ecutor inoperative I Pr-osecutor 1nopei~ati-ve i Prosecutor inoperative
I I I
, in execution, violates in execution, violates I in execution, violates
i the Basic Structure the Basic Structure I the Basic Structure
I Doctrine? Doctrine? Doctrine?
I
26 I (26) \Vhcther Sections I (26) vVhether Sections (26) Whether Sections
30 & 31 of the 130 & 31 of the 30 & 1 31 of the
Protection of Human I Protection of Human I Protection of Human
Rights Act, 1993, for Rights Act, 1993, for Rights Act, 1993, for
provision of Human provision of Human provision of Human
Rights Courts of Rights Courts of I Rights Courts of
Sessions and Human I Sessions and Human I Sessions and Human
Rights Independent 1 Rights Independent 1 Rights Independent
Public Prosecutor at I Public Prosecutor at / Public Prosecutor at I
Gurgaon, it being well I Gurgaon, it being well I Gurgaon, it being well j
1

settled that no I settled that no I settled that no

provision of an Act of provision of an Act of provision of an Act of
Parliament meant to Parliament meant to Parliament meant to
enforce the enforce the enforce the
fundamental rights fundamental tights fundamental rights
such as Article 21 in such as Article 21 in such as Article 21 m .
,

compliance of I compliance of I compliance of

international international international
covenants, may be I covenants, may be covenants, may be
rendered otiose, by I rendered otiose, by rendered otiose, by
inaction of the State? I inaction of the State? inaction of the State?
[per paras 24 & 25 of [per paras 24 & 25 of I [per paras 24 & 25 of
Judgment and Order Judgment and Order Judgment and Order
dated24.07.15inW.P. dated 24.07.15 in dated24.07.15 inW.P.
 74
,--- --~ (Cl~f_)_ N~;-~ 5 3-9/sT--w. p~ -----((~~!.)~ ~~T (c r L) N 0. 53 9/86,
I ID.K. Dasu v. State of 539/86, D.K. Basu v.l D.K. Basu v. State of
vVest Bengal & Ors. State of \Vest Bengal I \Nest Bengal & Ors.
Passed by I-I on 'ble the , & Ors. Passed by [ Passed by Hon 'ble the
Chief Justice of India Hon'ble the Chief Chief Justice of India
& Hon'ble Justice R. Justice of India & & Hon'qle Justice R.
Banumathi] Hon'ble Justice R.J Banumathi]
Banumathi]

27 I (27) Vlhether, as (27) Whether, as (27) \'!hether, as

applicable m the applicable in the applicable inthe
United States, United States, United States,
"Members of the j "Members of the I "Members of the
public, including I public, including I public, including
_media representatives, media representatives, I media representatives,
1
have an unambiguous have an unambiguous have an unambiguous /
I
First Amendment right First Amendment First Amendment
to record officers in right to record officers right to record officers
public places, as long in public places, as in public places, as
as their actions do not long as their_ actions long as their actions
interfere with the do not interfere with do not interfere with
officer's duties or the the officer's duties or the officer's duties or
safety of officers or I the safety of officers I the safety of officers
others. Officers should I or others. Officers I or others. Officers ,
assume that they are I should assume that I should assume that /
I
being recorded at all I they are being I they are being/
times when on duty in I recorded at all times I recorded at all times 1

a public space?", a when on duty in a when on duty m a

similar mle should be public space?", a public space?", a

···•" --~- •·'""-'• •• -··•r-~··'""- ·•·'-'·'- -··-·-·..-~<·'-=·'•"•·'-'"-'-"'•=-"~••'"''-'~··••"<"-"·•·--•

 75
-------------------,-----------,----
made apphcable in 1 similar rule should be I similar ruie should be
I

India as indicated in I made applicable in made applicable m

2009 by our Hon'ble India as indicated in India as indicated m
Supreme Court, and 2009 by our Hon'ble 2009 by our Hon'ble
also whether or not Supreme Court, and Supreme Court, and
every police/ I also whether or not also whet\1er or not
custodial/ jail facility 1 every police/ 1 every police/
is a "public place" for custodial/ jail facility custodial/ jail facility
I the purposes ofhuman is a "public place" for is a "public place" for
rights offences? [In Re the purposes of human the purposes oflmman
Destruction of Public I rights offences? [In Re rights offences? [In Re
& Private Properties v.l Destruction of Public Des~ruction of Public
State of A.P., 2009 (5) & Private Properties & Private Properties v.
SCC 212 (3 judges), v. State of A.P., 2009 State of A.P., 2009 (5)
Intemational I (5) sec 212 (3 sec 212 (3 judges),
Association of Chiefs I judges), International Intemational
of Police (IACP) Law Association of Chiefs Association of Chiefs
Enforcement Policy of Police (IACP) Law of Police (IACP) Law
Center, RECORDING Enforcement Policy Enforcement Policy
POLICE ACTIVITY, Center, RECORDING Center, RECORDING
·Model Policy, I POLICE ACTIVITY, I POLICE ACTIVITY,
December 20 15] Model Policy, I Model Policy,
December 20 15] December 2015]

28 I (28) Whether the (28) vVhether the (28) Whether the

NHRC is a Statutory NHRC is a Statutory NHRC is a Statutory

body having powers of body having powers body having powers of
mqmry and of mqmry and mgmry and
I
I investigation of investigation r,f investigation of
I
/~-:-"\
76
I complaints --of ~-~OJ~;p}~i:;~t-~-------·-;TI c;~:J~~;l;i-~~-t~--- of

violation of Human I violation of Human I violation of Human

I
rights as provided rights
J as provided / rights as provided
under the Protectior: of I under the Protection Iunder the Protedion of
Human Rights Act, of Human Rights Act, .Human Rights Act,
1993, and as such 1993, and as such 1993, and as such
whether the order of whether the order of whether the order of
the NHRC is a parallel the NHRC is a parallel the NHRC is a parallel
proceedings in which proceedings in which 1 proceedings in which
the Police department the Police department the Police department
had already enquired had already enquired had already enquired
into the matter in a I intothe matter in a into the matter m a
flimsy manner and flimsy manner and I flimsy manner and
found everything in found everything in j found everything m
their favour? their favour? I their favour?
29 I (29) Whether the I (29) Whether the I (29) Whether the
current system of current system of I current system of
opaque functioning of opaque functioning of opaque functioning of
provisions for appeal, provisions for appeal, provisions for appeal,
revision and review of revision and review of revision and review of
orders compounded by orders . compounded orders compounded
marked reluctance of by marked reluctance by marked reluctance
certain judges to give of certain judges to of certain judges to 1

brief reasoning in give brief reasoning in give brief reasoning in

orders of dismissal, orders of dismissal, orders- of dismissal,
inspite of well settled inspite of well settled inspite of well settled
law to the contrary, law to the contrary, law to the contrary,
oftentimes i_jnoring oftentimes ignoring oftentimes 1gnonng

~-·~- .. -\ . ' ~-
 I
77 i

I
/~\
-----~-~~-~-.-,-----------------T-~------ ----~---

even to mention the ! even to mention the i even to rnention the j

. judgments and facts I judgments and facts Ijudgments and facts I

relied upon· by parties, 1 relied upon by parties, relied upon by parties,

foi-get ab'out I forget about forget about

discerning the ratio I disceming the ratio discerning the ratio

thereof, effectively I thereof, effectively thereof, , effectively

grants exemption from I grants exemption grants exemption from

accountability to the from accountability to accountability to the
judiciary in respect of the judiciary in respect judiciary in respect of
I

its judicial functions, I of its judicial its judicial functions,

thus violating A11icles I functions, thus thus violating Articles

14, 19,21 & 22, day in I violating Articles 14, 14, 19,21 & 22, day in
and day out, in our 1 19 & 21, day in and and day out, m our
courts of law I day out, in our courts 1 courts of law i
especially at the I oflaw especially at the I especially at the
lowest levels where I lowest levels where I lowest levels where
majority of cases majority of cases majority of cases
finally terminate as finally terminate as finally tenninate as
parties are unequal to parties are unequal to parties are unequal to
the challenge of I the challenge of I the challenge of
approaching faraway approaching faraway approaching faraway I

higher forums due to higher forums due to higher fomms due to

expense and time? expense and time? expense and time?

Place: Chandigarh
Dated: 27.09.17
Intervener-in-person
Sarvadaman Singh Oberoi
11 02/Tower 1, Uniworld Garden, Sector 4 7, Gurgaon
Mob: 9818768349"

;:,._·__ ,_,..,_~-----~-- . . :. . . . ;.... ~'-o-oO---~---··-·· -----"----~--~---

 78
24. EXTRACTS FROlVI ELEVEN JUDGMENTS:

I. In State Of l\1adhya Pradesh YS Ramashankar Raghuvanshi,

1983 (2) sec 145 it was held (at sec pp.147-153 at paras 2-12):
"2. India is not a police state. India is a democratic republic. More

than 30 years ago, on January 26, 1950, the people of India' resolved

to constitute India into a democratic republic and to secure to all its

citizens "Liberty of thought, expression, belief, faith and worship;

Equality of status and opportunity", and to promote "Fraternity,

assuring the dignity of the individual". This detennination of the

people, let us hope, is not a forgotten chapter of history. The

determination has been written into the articles of the Constih1tion in

the shape of Fundamental Rights and they are what makes India a

democratic republic and what marks India from authoritarian or

police States. The right to freedom of speech and expression, the

right to form associations and unions, the right to assemble

peaceably and without arms. the right to equality before the law and

the equal protection of the right laws, the right to equality of

opportunity in matters relating to employment or appointment to any

office under the State are declared Fundamental Rights. Yet the

Government of Madhya Pradesh seeks to deny employment to the

respondent on the ground that the report of a Police officer stated

that he once belonged to some political organisation. It is important

 I
79 I
(---
I

I
to note that the action sought to be taken against the respondent is

not any disciplinary action on the ground of his present involvement

in political activity after ente1ing the service of the Govemrnent,

contrary to some Service Conduct Rule. It is further to be noted that

it is not alleged that the respondent ever participated in any illegal,

vicious or subversive activity. There is no hint that the respondent

was or is a perpetrator of violent deeds or that he exhorted anyone to

commit violent deeds. There is no reference to any addition to

violence or vice or any incident involving violence, vice or other

crime. All that is said is that before he was absorbed in Government

se!Vice, he had taken part in some 'RSS or Jan Sangh activities.' What

those activities were has never been disclosed. Neither the RSS nor

the Jan Sangh is alleged to be engaged in any subversive or other

illegal activity; nor are the organisations banned. Most people,

including intellectuals, may not agree with the program me and

philosophy of the Jan Sangh and the RSS or, for that matter of many

other political parties and organisations of an altogether different

hue. But that is irrelevant. Everyone is entitled to his thoughts and

views. There are no barriers. Our Constitution guarantees that. In fact

members of these organisations continue to be members of

Parliament and State Legislatures. They are heard, often with respect

inside and outside the Parliament. What then was the sin that the

·=--·~...,_...,_.., •. -- -~·-·-------~~-----
 80 I
~

respondent committed in partlctpating in some political activity

before his absorption into Govemment service. \Vhat was wrong in I

his being a member of an organisation which is not even aUeged to

be devoted to subversive or illegal activities. The ·whole idea of

seeking a Police report on the political faith and the past'political

activity of a candidate for public employment appears to our mind to

cut at the very root of the Fundamental Rights of equality of

opportunity in the matter of employment, freedom of expression and

freedom of association. It is a different matter altogether if a police

report is sought on the question of the involvement of the candidate

in any criminal or subversive activity in order to find out his

suitability for public employment. But why seek a police report on

the political faith of a candidate and act upon it. Politics is no crime.

Does it mean that only True Believers in the political faith of the

party in power for the time being are entitled to public employment

? Would it not lead to devastating results, if such a policy is pursued

by each of the Govemments of the constituent States of India where

different political parties may happen to wield power, for the time

being? Is public employment reserved for "the cringing and the

craven" in the words of Mr. Justice Black of the United States

Supreme Court? Is it not destntctive of the dignity of the individual

mentioned in the preamble of the Constitution? Is it to be put against

 a youngman that before the cold climate of age and office freezes
81 I
him into immobility, he takes part in some political activity in a mild t
manner. Most students and most youngmen are exhorted by national

leaders to take part in political activities and if they do get involved

in some form of agitation or the other; is it to be to their ever-lasting

discredit. Sometimes they get involved because they feel strongly

and badly about injustice, because they are possessed of integrity and

because they are fired by idealism. They get involved because they

are pushed into the forefront by elderly leaders who lead and

occasionally mislead them. Should all these youngmen be debarred

from public employment? Is Government service such a heaven that

only angels should seek entry into it? We do not have the slightest

doubt that the whole business of seeking police reports, about the

political faith, belief and association and the past political activity of

a candidate for public employment is repugnant to the basic rights

guaranteed by the Constitution and entirely misplaced in a

democratic republic dedicated to the ideals set forth in the preamble

of the Constitution. We think it offends the Fundamental Rights

guaranteed by Arts. 14 and 16 of the Constitution to deny

employment to an individual because of his past political affinities,

unless such affinities are considered likely to affect the integrity and

efficiency of the individual's service. To hold otherwise would be to

,.---~.

(: ',;
82 I
introduce 'NlcCarthysim' into India. 'McCmthyism' is obnoxious to

the whole philosophy of our constitution. We do not want it.

3. In the fifties the practice ofbaiting and cmcifying teachers, public

I
servants and a host of others in the United States, as Communists

came to be known as 'McCarthyism. Its baleful effects were

described by late President Eisenhower, himself an anticommunist

as follows :-

'McCarthyism took its toll on many individuals and on the Nation.

No one was safe from charges recklessly made from inside the wdls

of congressional immunity. Teachers, Government employees, and

even ministers became vulnerable. Innocent people accused of

Communist associations or party membership have not to this day

been able to clear their names fully. For a few, of course, the cost

was little-where the accused was a figure who stood high in public

tmst and respect, personal damage, if any could be ignored or

laughed away. But where, without proof of guilt, or because of some

accidental or early in life association with suspected persons, a inan

or woman had lost a job or the confidence and trust of superiors and

associates, the cost was often tragic, both emotionally and

occupationally" .

The late President also said,

 .................. ············
,..._,~--·-··--

/.,-\
83
"They ... fear other people's ideas-every new idea. They ... talk about I
I
censming the sources and the communication of ideas ... without
'
exhaustive debate- even heated debate-of ideas and programmes,

free Government would weaken and wither. But if we allow

ourselves to be persuaded that every individual, or party, thai: takes

issue with our own convictions is necessarily wicked or treasonous-

then we are approaching the end of freedom's road ... "

4. In Wieman V. Updegraff(344 US 183: 97 I. Ed 216 (1952)), Black

J. said, in one of the notorious loyalty oath cases and, it is worth

quoting in full.

History indicates that individual liberty is intermittently subjected to

extraordinary perils. Even Countries dedicated to government by the

people are not free from such cyclical dangers. The first years of our

Republic marked such a period. Enforcement of the Alien and

Sedition Laws by zealous patriots who feared ideas made it highly

dangerous for people to think, speak, or write critically about

government, its agents, or its policies, either foreign or domestic.

Our Constitutional liberties survived the ordeal of this regrettable

period because there were influential men and powerful organized

groups bold enough to champion the undiluted right of individuals

to publish and argue for their beliefs however unorthodox or

loathsome. Today however, few individuals and organizations of

 84
power and influence argue that unpopular advocacy has this sarne

wholly unqualified immunity from govemmental interference. For

this and other reasons the present period of fear seems more

ominously dangerous to speech and press than was that of the Alien
I
and Sedition Laws. Suppressive laws and practices are the fashion.

The Oklahoma oath statute is but one manifestation of a national

network oflaws aimed at coercing and controlling the minds of men.

Test oaths are notorious tools of tyranny. \Nhen used to shackle the

mind they are, or at least they should be, unspeakably odious to a

free people. Test oaths are made still more dangerous when

combined with bills of attainder which like this Oklahoma stah1te

impose pains and penalties for past lawful associations and

utterances.

Governments need and have ample power to punish treasonable

acts. But it does not follow that they must have a fitrther power to

punish thought and speech as distinguished from acts. Our own free

society should never fnrget that laws vvhich stigmatize and penalize

thought and speech of the unorthodox have a way of reaching,

ensnaring and silencing many more people than at first intended. We

must have freedom of speech for all or we will in the long run have

it for none but the cringing and the craven. And I cannot too often
 85
repeo/ my be!iefthat the right to .speak on mlliTers ofpublic concern

nwst be ~vholly lost.

lt seems self-evident that all speech criticizing government n1lers

and challenging cunent beliefs may be dangerous to the status quo.

\Vith full knowledge of this danger the Framers rested our First

Amendment on the premise that the slightest suppression of thought,

speech, press, or public assembly is still more dangerous.

This means that individuals are guaranteed an undiluted and

unequivocal right to express themselves on questions of current

public interest. It means that Americans discuss such questions as of

right and not on sufferance of legislatures, courts or any other

governmental agencies. It means that courts are without power to

appraise and penalize utterances upon their notion that these

utterances are dangerous. In my view this uncompromising

interpretation of the Bill of Rights is the one that must prevail if its

freedoms are to be saved. Tyrannical totalitarian governments cannot

safely allow their people to speak with complete freedom. I believe

with the Framers that our free Government can".

5. In another loyalty oath case, Gamer v. Board of Public Works, (I)

Douglas, J had this to say:

Here the past conduct for which punishment is exacted is single-

advocacy within the past five years of the overthrow of the

---···-··---'----- ............ '--'~-

_,.~-.
86
Go\ cmrnent by force and violence. In the other cases the acts for

·which Cummings and Garland stood condemned covered a wider :

range and involved some conduct which might be vague and

I
uncertain. But those differences, seized on here in hostility to the
II
constitutional provisions, are wholly irrelevant. Deprivafion of a

man's means of livelihood by reason of past conduct, not subject to

this penalty when committed, is punishment whether he is a

professional man, a day labourer who works for p1ivate industry, or

a Government employee. The deprivation is nonetheless

unconstitutional whether it be for one single past act or a series of

past acts ....... ~.

Petitioners were disqualified from office not for what they are today,

not because of any program they currently espouse (cf. Grende v.

Board of Supervisors 341 U. S. 56) not because of standards related

to fitness for the office, cf: Dent v. West Virginia 129 U.S. 114;

Hawker v. New York, 170 U.S. 189, but for what they once

advocated .....

6. In the same case, Frankfurter, J. observed:

The needs of security do not require such curbs on what may well be

innocuous feelings and associations. Such curbs are indeed self-

defeating. They are not merely unjustifiable restraints on individuals.

They are not merely productive of an atmosphere of repre~sion

 87 II
uncongenial to the spiritual vitality of a democratic society. The

inhibitions which they engender are hostile to the best conditions for I
securing a high-minded and high-spirited public service.

7. In Lerner v. Casey, 357 US 468 Douglas, J. said:

We deal here only with a matter of belief. We have no evidence in

either case that the employee in question ever committed a crime,

ever moved in treasonable opposition against this country. The only

mark against them-if it can be called such-is a refusal to answer

questions concerning Communist Party membe~·ship. This is said to

give rise to doubts concerning the competence of the teacher in the

Beilan case and doubts as to the trustworthiness and reliability of the

subway conductor in the Lerner case ....

There are areas where government may not probe .... But government

has no business penalizing a citizen merely for his beliefs or

associations. It is government action that we have here. It is

government action that the Fourteenth and First Amendments protect

against.. .. Many join associations, societies, and fraternities with less

than full endorsement of all their aims.

8. In Speiser v. Randall, 357 US 673 Black, J said:

This case offers just another example of a wide-scale effort by

Government in this country to impose penalties and disabilities on

everyone who is or is suspected of being a 'Communist' or who is not

~:. ....:..,.---~··-·~-~~............_,___..,_,,_~,-
 88
ready at all times and all places to swear his loyalty to State and

Nation .... I am convinced that this whole of business of penalizing

people because of their views and expressions concerning

Government is hopelessly repugnant to the principles of freedom

upon which this Nation was founded ...... Loyalty oaths, a's well as

other contemporary 'security measures,' tend to stifle all forms of

unorthodox or unpopular thinking or expression-the kind of thought

and expression which has played such a vital and beneficial role in

the History of ti1is Nation. The result is a stultifying conformity

which in the end may well tum out to be more destmctive to our free

society than foreign agents could ever hope to be.

9. In the same case, Douglas, J., said:

Advocacy which is in no way brigaded with action should always be

protected by the First Amendment. That protection should extend

even to the ideas we despise. As Mr. Justice Holmes, wrote in dissent

in Gitlow. v. New York 268 US 652: 69 L.ED. 1138. 45 S. Ct. 625.

'If in the long run the beliefs expressed in proletarian dictatorship are

destined to be accepted by the dominant forces of the community,

the only meaning of free speech is that they should be given their

chance and have their way'. It is time for government-state or

federal-to become concerned with the citizen's advocacy when his

ideas and beliefs move into the realm of action.

.:;·,
·,

/~.':,
89
We may end our excursion to the United States of Arncrica with a

reference to the words of wisdom uttered by Thomas Jefferson more

than two centuries ago:

.. the opinions of men are not the object of civil government, nor

under its jurisdiction; .. it is time enough for the rightful pt~rposes of

civil government for its officers to interfere when principles break

out into overt acts against peace and good order.

10. We are not for a moment suggesting that even after entry into

Government service, a person may engage himself in political

activities. All that we say is that he cannot be turned back at~he very

threshold on the ground of his past political activities. Once he

becomes a GovemQent servant, he becomes subject to the various

rules regulating his conduct and his activities must naturally be

subject to all rules made in conformity with the Constitution.

11. Let us once more remained ourselves of what Gurudev

Rabindranath Tagore said:

"Where the mind is without fear and the head is held high: where

knowledge is free;

* * *
Where the clear stream of reason has not lost its way into the dreary

desert sand of dead habit:

..<l!...,._,;.,.:_:.a.,.~----=..-:....., •. _ ... _~~----··- .........: -'"'-· ............... ~~- ____ ..,_._,_ __.._._~-· ..... ·""~-----
 ···--·--·'·"-...._ ..... ~ • • . ~.._,_.............. ..!. , .... ,,,,,_,

·•:
--i

/'~,:.
90 . I
;
I
J'fhere the mind i.'> ledfonvard b,y thee into ever ·widening thought
I
and action let my count1y mvake. "

12. The application is dismissed."

H. In Shayara Bano v. Union of India, 2017 (9) SCC 1

(Constitution Bench mling 3:2 decided 22.08.17) (injuncting ~Muslim

husbands from pronouncing 'talaq-e-biddat' for a period of sLr:

months - differing with the majority which completely struck down

'triple talaq' - on the ground that it should better be left to the

legislature since jimdamental rights shield religious practices under

Articles 25/26 from the usually binding nature of international

y,\~ covenants in this case) it was held by the minority at sec pp.289-
"'~,v·
290 para 379:

"(ii) Krishna Janardhan Bhat v. Dattaraya G. Hegde, [2008 (4) SCC

54]

379. In the instant case, this Court relied upon international

conventions to determine the true import of 'burden of proof, under

the Negotiable Instruments Act, 1881. This Court held as under (at

sec pp.65-66 at paras 44-45):

44. The presumption of innocence is a human right. (See Narendra

Singh v. State of M.P., 2004 (10) SCC 699, Ranjitsing

Brahmajeetsing Sharma v. State ofMaharashtra, 2005 (5) SCC 294

and Rajesh Ranjan Yadav v. CBI., 2007 (1) SCC 70)). Article 6(2)

~-~··· ... ~-·--<---- ---~-·-"' -~--=-----_,_,~........, ........... ,__h~ ....... U...--<...~~- ... -·~~·- -·
~- .... --.~~------"""-'-~ ...,........ ~-·-'-.:.,_:.ua
 I

Ii
91 I
of the European Convention on Human Rights provides: "Everyone

charged with a criminal offence shall be presumed innocent until

proved guilty according to law.'' Although India is not bound by the

aforementioned Convention and as such it may notbe necessary like

the countries forming European countries to bring common law into

land with the Convention, a balancing of the accused's rights and the

interest of the society is required to be taken into consideration. In

India, however, subject to the statutory interdicts, the said principle

forms the basis of criminal jurisprudence. For the aforementioned

purpose the nature of the offence, seriousness as also gravity thereof

may be taken into consideration. The courts must be on guard to see

that merely on the application of presumption as contemplated under

Section 139 of the Negotiable Instruments Act, the same may not

lead to injustice or mistaken conviction. It is for the aforementioned

reasons that we have taken into consideration the decisions operating

in the field where the difficulty of proving a negative has been

emphasised. It is not suggested that a negative can never be proved

but there are cases where such difficulties are faced by the accused

e.g. honest and reasonable mistake of fact. In a recent article The

Presumption of Innocence and Reverse Burdens: A Balancing

Duty published in 2007 CLJ (March Part) 142 it has been stated:
 92
'In determining whether a reverse burden is compatible with the

presumption of innocence regard should also be had to the

pragmatics of proof. How difficult would it be for the prosecution to

prove guilt without the reverse burden? How easily could an

innocent defendant discharge the reverse burden? But courts \vill not

allow these pragmatic considerations to override the legitimate rights

of the defendant. Pragmatism will have greater sway where the

reverse burden would not pose the risk of great injustice-where the

offence is not too serious 01 the reverse burden only concerns a

matter incidental to guilt. And greater weight will be given to

prosecutorial efficiency in the regulatory environment.'

45. We are not oblivious of the fact that the said provision has been

inserted to regulate the growing business, trade, commerce and

industrial activities of the country and the strict liability to promote

greater vigilance in financial matters and to safeguard the faith of the

creditor in the drawer of the cheque which is essential to the

economic 1ife of a developing country like India. This, however,

shall not mean that the courts shall put a blind eye to the ground

realities. Statute mandates raising of presumption but it stops at that.

It does not say how presumption drawn should be held to have

rebutted. Other important principles of legal jurisprudence, namely,

presumption of innocence as human rights and the doctrine of

'·
 93
reverse burden introduced by Section 139 should be delicatelv

balanced. Such balancing acts. indisputably would largely depend

upon the factual matrix of each case, the materials brought on record

aild having regard to legal principles governing the same."

III. In Ammal Chandra Dutt v. Second Additional District

Judge, 1989 (1) sec 1 it was held (at sec pp.6-7 at para 8):
"8. Insofar as the second contention is concerned, the appellant is

right when he says that the earlier application under Section 3 of the

1947 Rent Act and the later application under Section 21(1) of the

1972 Rent Act should be construed as having been made on one and

the same ground viz. bona fide requirement of the premises by the

second respondent for his own occupation. The High Court has

however taken the view that the ground of eviction in the two

applications is not the same because different sets of circumstances

would constitute different grounds and such a test is satisfied in this

case. We do not think it necessary to go into the question whether

the High Court's view is correct or not because even if we treat the

two applications as having been made on the same ground, the

second application would not attract the operation of Rule 18(1 ).

Since the Rule contains only a formula of presumption based on

facts, it goes without saying that the prescription is only of a

directory nature and not of a mandatory nature. In this context we

 94
may appositely refer to the following passage in Phipson on

Evidence (Thirteenth Edition) at pages 4 and 5;

"Presumptions are either of hnv or fact. Presumptions of law are

arbitrary consequences expressly mmexed by law to particular facts;

and may be either conclusive, as that a child under a certa'in age is

incapable of committing any crime; or rebuttable, as that a person

not heard of for seven years is dead, or that a bill of exchange has

been given for value.

Presumptions of fact are inferences which the mind naturaily and

logically draws from given facts, irrespective of their legal effect.

Not only are they always rebuttable, but the trier of fact may refuse

to make the usual or natural inference notwithstanding that there is

no rebutting evidence."

Besides it is a well-known principle that in the interpretation of

statutes that where the situation and the context warrants it, the word

"shall" used in a Section or Rule of a statute has to be construed as

"may". The present context is one such where the words "the

Prescribed Authority shall accept the findings in those proceedings

as conclusive" have to be read as "the Prescribed Authority may

accept the findings in those proceedings as conclusive" because the

findings are based upon existence of facts."

. _.,___..,..__,__.____~,__- - -'·------··---
 95
IV.ln K. Bhasknan v. Sankaran Vaidhyan Balan And Anr, 1999

(7) sec 510 it was held (at pp.518-520 at paras 17-25):

"1 7. The more important point to be decided in this case is whether

the cause of action has arisen at all as the notice sent by the

complainant to the accused was returned as 'unclaim'ed.' The

conditions pertaining to the notice to be given to the drawer, have

been formulated and incorporated in clauses (b) and (c) of the

proviso to Section 13 8( 1) of the Act. The said clauses are extracted

below:

"(b) The payee or the holder in due course of the cheque, as the case

may be, makes a demand for the payment of the said amount of

money by giving a notice in writing, to the drawer of the cheque,

within fifteen days of the receipt of information by him from the

bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said

amount of money to the payee or as the case may be, to the holder in

due course of the cheque within fifteen days of the receipt of the said

notice."

18. On the part of the payee he has to make a demand by 'giving a

notice' in writing. If that was the only requirement to complete the

offence on the failure of the drawer to pay the cheque amount within

15 days from the date of such 'giving' the travails ofthe prosecution
,r-.,
96
\:vould have been very much lessened. But the legislature says that

failure on the pm1 of the dra-wer to pay the amount should be within

15 days 'of the receipt' of the said notice. It is, therefore, clear that

'giving notice' in the context is not the same as receipt of notice.

Giving is a process of which receipt is the accomplishment. It is for

the payee to perform the former process by sending the notice to the

drawer at the correct address.

19. In Black's Law Dictionary, 'giving of notice' is distinguished

from 'receiving of the notice.' (vide p.621) "A person notifies or

gives notice to another by taking such steps as may be reasonably

required to inform the other in the ordinary course, whether or not

such other actually comes to know of it." A person 'receives' a notice

when it is duly delivered to him or at the place of his business.

20. If a strict interpretation is given that the drawer should have

actually received the notice for the period of 15 days to start running

no matter that the payee sent the notice on the correct address, a

trickster cheque drawer would get the premium to avoid receiving

the notice by different strategies and he could escape from the legal

consequences of Section 138 of the Act. It must be borne in 1nind

that Court should not adopt in interpretation which helps a dishonest

evader and clips an honest payee as that would defeat the very

legislative measure.
 97 Ij
21. In lVlaxwell's 'Interpretation of Statues' the learned author has

emphasized that "provisions relating to giving of notice often receive

I
~

liberal interpretation." (vide p.99 of the 12th Edn.) The context

envisaged in Section 138 of the Act invites a liberal interpretation

for the person who has the statutory obligation to give notice because

he is presumed to be the loser in the transaction and it is for his

interest the very provision is made by the legislature. The words in

clause (b) of the proviso to Section 13 8 of the Act show that payee

has the statutory obligation to 'make a demand' by giving notice. The

thrust in the clause is on the need to 'make a demand'. It is only the

mode for making such demand which the legislature has prescribed.

A payee can send the notice for doing his part for giving the notice.

Once it is despatched his part is over and the next depends on what

the sendee does.

22. It is well settled that a notice refused to be accepted by the

addressee can be presumed to have been served on him, [vide

Harcharan Singh v. Smt. Shivrani and Ors., 1981 (2) SCC 535, and

Jagdish Singh V. Natthu Singh, 1992 (1) sec 647.

23. Here the notice is returned as unclaimed and not as refused. Will

there be any significant different between the two so far as the

presumption of service is concerned? In this connection a reference

to Section 27 of the General Clauses Act will be useful.

'-~-~~--~~- ----~-- -~--'~-~- -·--- .

 98
The Section reads thus :

"27. Meaning of service by post. - \Vhere any Central Act or

Regulation made after the commencement of this Act authorizes or

requires any document to be served by post, whether the expression

'serve' or either of the expressions 'give' or 'send' or any other

expression is used, then, unless a different intention appears,. the

service shall be deemed to be effected by properly addressing, pre-

paying and posting by registered post, a letter containing the

document, and unless the contrary is proved, to have been effected

at the time at which the letter would be delivered in the ordinary

course of post"

24. No doubt Section 138 of the Act does not require that the notice

should be given only by 'post'. Nonetheless the principle

incorporated in Section 27 (quoted above) can profitably be imported

in a case where the sender has despatched the notice by post with the

correct address written on it. Then it can be deemed to have been

served on the sendee unless he proves that it was not really served

and that he was not responsible for such non-service. Any other

interpretation can lead to a very tenuous position as the drawer of the

cheque who is liable to pay the amount would resort to the strategy

of subterfuge by successfully avoiding the notice.

.----'":,
99
25. Thus. when a notjce is returned bv the sendee as unclaimed such
' J

date would be the commencing date in reckoning the period of 15

days contemplated in clause (c) to the proviso of Section 138 of the

Act. Of course ·such reckoning would be vvithout prejudice to the

right of the drawer of the cheque to show that he had no knowledge

that the notice was brought to his address. In the present case the

accused did not even attempt to discharge the burden to rebut the

aforesaid presumption."

V. In Narendra Singh & Anr vs State OfM.P, 2004 (10) SCC 699

it was held (at sec p. 708 at paras 30-31 ):

"30. It is now well-settled that benefit of doubt belonged to the

accused. It is further trite that suspicion, however, grave may be

cannot take place of a proof. It is equally well-settled that there is a

long distance between 'may be' and 'must be'.

31. It is also well-known that even in a case where a plea of alibi is

raised, the burden of proof remains on prosecution. Presumption of

innocence is a human right.. .. "

VI. In A.C. Narayanan v. State of Maharashtra, 2014 (11) SCC

809 (04.01.2007) it was held (at sec p.812 paras 7-8):

"7. Another issue which would arise for consideration is as to

whether the payee must examine himself in support of the complaint

 /'~-
100
petition keeping in view the insertion of Section 145 of the Said Act

(Act No. 55 of 2002).

8. In our opinion, in view of difference of opinion amongst various

High Courts as also the decisions of this Court in M.M.T.C. Ltd.

Supra) and Janki Vashdeo Bhojwani (supra), particularly in view of

the fact that in the later case the earlier one was not noticed, an

authoritative pronouncement is necessary to be given in this regard.

We, therefore, are of the opinion that the matter should be considered

by a larger Bench."

VII. In Krishna Janardhan Bhat vs Dattatraya G. Hegde, 2008

(4) sec 54 it was held (at sec pp.61-63 at paras 28-36):

"28. Indisputably, a mandatory presumption is required to be raised

in terms of Section 118(b) and Section 139 ofthe Act. Section 13(1)

of the Act defines "negotiable instrument" to mean a "promissory

note, bill of exchange or cheque payable either to order or to bearer".

29. Section 138 of the Act has three ingredients, viz.:

(i) that there is a legally enforceable debt;

(ii) that the cheque was drawn from the account ofbank for discharge

in whole or in part of any debt or other liability which pre-supposes

a legally enforceable debt; and

(iii) that the cheque so issued had been returned due to insufficiency

of funds.

_.~~~...._,~.·-·-·_,..., ·'·'~ ..·-~·"-"-~,........,~··~·,.-____:h-_,_,,,.._"'-"'---'_"'·~- ....._.....,_,,"""""......_..,_..,._.~ ...J.....:...•a.-a....,._:__,;.,.....:,.:.......:,..,.........,._._.~:......,.:;,_...hi.,; _ _.;_..::..:...;.._•,.,.._.....o.~··•·--.....:.·""_,;_;_~~.>--...J... ~ ~~_;~-~,:......:. :•. ~-- -·•-••<. .d~~..._............,.~,....:_, •...._._~~-~-~··-"'•~•_.~,;,.,,
 ,~--;-...\
101
30. The proviso appended to the said section provides for cornpliance

oflegal requirements before a complaint petition can be acted upon

by a court o:flaw. Section 139 of the Act merely raises a presumption

in regard to the second aspect of the matter. Existence of legally

recoverable debt is not a matter of presumption under Secti'on 139 of

the Act. It merely raises a presumption in favour of a holder of the

· cheque that the same has been issued for discharge of any debt or

other liability.

31. The courts below, J.S noticed hereinbefore, proceeded on the

basis that Section 139 raises a presumption in regard to existence of

a debt also. The courts below, in our opinion, committed a serious

error in proceeding on the basis that for proving the defence the

accused is required to step into the witness box and unless he does

so he would not be discharging his burden. Such an approach on the

part of the courts, we feel, is not correct.

32. An accused for discharging the burden of proof placed upon him

under a statute need not examine himself. He may discharge his

burden on the basis of the materials already brought on records. An

accused has a constitutional right to maintain silence. Standard of

proof on the part of an accused and that of the prosecution m a

criminal case is different.

~,..;-··-·- ··-.-.:;.....,-~ ......;'O...U,.....,;'-'.;',~'-"'~---·---"~ __,_~_,;.,_:.......:_~,'---:;._·.;.,~,~....:._.c~:L&"'-'" ·•• ....-;,;._,~·~n....:_.-,,_,_.-·-·..,_.,_._....,.,._•,-·-·--,,.._,,..,;.:_.~.," -'~- ~,;,,,._,,_,_,,~ ___ ,,_.,.., __,_;f,_._...•_,,.._.,...;~L~"-"-~"""'-~<~•:..:.,_,_~_,_,~.__.,.~,_ ~
 102
33. In Bharat Banel & Drum Manufacturing Cc·mpanv
. - v. Amin
~

Chand Pyarelal, 1999 (3) SCC 35 interpreting Section 1 18( a) of the

Act, this Coun opined(at SCC pp.50-51 para 12):

"12. Upon consideration of various judgments as noted hereinabove,

the position of law which emerges is that once executibn of the

promissory note is admitted, the presumption under Section 118(a)

would arise that it is supported by a consideration. Such a

presumption is rebuttable. The defendant can prove the non-

existence of a consideration by raising a probable defence. If the

defendant is proved to have discharged the initial onus of proof

showing that the existence of consideration was improbable or

doubtful or the same was illegal, the onus would shift to the plaintiff

who will be obliged to prove it as a matter of fact and upon its failure

to prove would disentitle him to the grant of relief on the basis of the

negotiable instrument. The burden upon the defendant of proving the

non-existence of the consideration can be either direct or by bringing

on record the preponderance of probabilities by reference to the

circumstances upon which he relies. In such an event, the plaintiff is

entitled under Jaw to rely upon all the evidence led in the case

including that of the plaintiff as well. In case, where the defendant

fails to discharge the initial onus of proof by showing the non-

existence of the consideration, the plaintiff would invariably be held

 Jl03
entitled to the benefit of presumption arising under Section 118( a) in

his favour. The court may not insist upon the defendant to disprove

the existence of consideration by leading direct evidence as the

existence of negative evidence is neither possible nor contemplated

and even if led, is to be seen with a doubt."

[Emphasis supplied]

34. Furthermore, whereas prosecution must prove the guilt of an

accused beyond all reasonable doubt, the standard of proof so as to

prove a defence on the part of an accused is 'preponderance of

probabilities'. Inference of preponderance of probabilities can be

drawn not only from the materials brought on records by the parties

but also by reference to the circumstances upon which he relies.

35. A statutory presumption has an evidentiary value. The question

as to whether the presumption whether stood rebutted or not, must,

therefore, be detennined keeping in view the other evidences on

record. For the said purpose, stepping into the witness box by the

appellant is not imperative. In a case of this nature, where the

chances of false implication cannot be ruled out, the background fact

and the conduct of the parties together with their legal requirements

are required to be taken into consideration.

~~;·:"L
~~· -- ~~ .. -~---
r, 104
36. ln M.S. Narayana Menon Alias Mani v. State of Kerala and

Another, 2006 (6) SCC 39. it was held that once the accused is found

to discharge his initial burden, it shifts to the complainant."

VIII. In National Small Industries Corporation Ltd. v. State

(NCT of Delhi) & Ors., 2009 (1) SCC 407 it was held €at SCC

pp.416-417 at para 16):

"16. Section 142 only requires that the complaint should be in the

name of the payee. Where the complainant is a company, who will

represent the company and how the company will be represented iiJ.

such proceedings, is not governed by the Code but by the relevant

law relating to companies. Section 200 of the Code mandatorily

requires an examination of the complainant; and where the

complainant is an incorporeal body, evidently only an employee or

representative can be examined on its behalf. As a result, the

company becomes a de jure complainant and its employee or other

representative, representing it in the criminal proceedings, becomes

the de facto complainant. Thus in every complaint, where the

complainant is an incorporeal body, there i_s a complainant-- de jure,

and a. complainant -- de facto. Clause (a) of the proviso to section

200 provides that where the complainant is a public servant, it will

not be necessary to examine the complainant and his witnesses.

Where the complainant is an incorporeal body represented by one of

(>,
105
its employees, the employee who is a public servant is the de facto

complainant and in signing and presenting the complaint, he acts in

the discharge of his oftl.cial duties. Therefore, it follows that in such

cases, the exemption under clause (a) of the first proviso to section

200 of the Code will be available."

IX. InK. Vijayalakshmi v. Government of Andhra Pradesh, 2013

(5) sec 489 it was held (at sec pp.499-500 at paras 12.3-12.5 &
pp.503-508 at paras 20-31 ):

12.3 In paragraph 7 of its judgment the Court referred to the

observations of Douglas, 1. in Lerner Vs. Casey which are to the

following effect:-

"7. In Lerner v. Casey, (1958) 357 U.S. 468 Douglas, 1. said:

"We deal here only with a matter of belief. We have no evidence in

either case that the employee in question ever committed a crime,

ever moved in treasonable opposition against this country. The only

mark against them - if it can be called such - is a refusal to answer

questions concerning Communist Party membership. This is said to

give rise to doubts concerning the competence of the teacher in the

Beilan case and doubts as to the tmstworthiness and reliability of the

subway conductor in the Lerner case.... There are areas where

government may not probe . . . But government has no business

penalizing a citizen merely for his beliefs or associations. It is

 lll\6.
j{_ ·;tJ .

govenunent action that we have here. It is government action thut

the Fourteenth and First Amendments protect against ... Many join

associations, societies, and fraternities with less than full

endorsement of all their aims."

12.4 Thereafter, in para 9 this Court once again quoted Dottglas, J's

statement in Speiser Vs. Randall (1958) 357 U.S. 513 to the

following effect:-

"9 ...... :.Advocacy which is in no way brigaded with action should

always be protected by the First Amendment. That protection should

extend even to the ideas we despise ....... "

12.5 Ultimately this Court dismissed that petition. What it observed

in paragraph 10 thereof, is equally relevaat for our purpose. This para

reads as follows:-

. "10. We are not for a moment suggesting, that even after entry into

Government service, a person may engage himself in political

activities. All that we say is that he cannot be turned back at the very

threshold on the ground of his past political activities. Once he

becomes a Government servant, he becomes subject to the various

rules regulating his conduct and his activities must naturally be

subject to all rules made in confonnity with the Constitution."

XXXX X
 .r:, 107
·-~-·

20. In this appeaL -vve are cGnccmecl with the question as to whether

the first respondent (the Government of Anclhra Pradesh) and the

second respondent (the High Coun) have proceeded COITectly in the

matter of appointment of the appellant. In this behalf we must refer

to Art. 234 of the Constitution, which is the governing artiCle when

it comes to the recruitment of persons other than District Judges to

the judjcial service. This mticle reads as follows:-

"234. Recruitment of persons other than district judges to the judicial

service - Appointment of persons other than district judges to the

judicial service of a State shall be made by the Governor of the State

in accordance with rules made by him in that behalf after

consultation with the State Public Service Commission and with the

High Comt exercising jurisdiction in relation to such State."

21. In the instant case, appointments to the posts of Civil Judges are

governed by the Andhra Pradesh State Judicial Service Rules, 2007

framed under Articles 233, 234, 235, 237 proviso to Art. 309 and

proviso to Art. 320(3) of the Constitution. Rule 4 (1) of these rules

declares that the Governor of the State shall be the Appointing

Authority for the categories of District Judges and Civil Judges. Rule

4 (2) (d) lays down that the appointments to the category of civil

Judges shall be by direct recruitment from among the eligible

advocates on the basis of written and viva-voce test, as prescribed by

-·-·"·
"-'-"-'· .........
r"> 108
the High Court. Accordingly, in the present case an adve11isement

was issued, and written and oral tests were conducted. The appellant

appeared for the same and was declared successful in both the tests.

Thereafter her name figured in the select list. It was at this stage that

the investigation was carried out by the Intelligence Bureau,' which

gave an adverse report about her. We do not find from the affidavit

of the Registrar General, filed during the hearing of the Writ Petition,

that all relevant papers of the police investigation were submitted to

the High Court on the administrative side. Now, the question arises

viz. as to whether it was proper for the Respondent 1 to decide on its

own that the candidature of the appellant could not be considered on

the bias of that report?

22. The police report dated 15-9-2008 was produced before the

Division Bench only when the Respondent 1 was called upon to

produce the material relied upon against the appellant. And if the

report was adverse, was it not expected of the Respondent 1 to

forward all those relevant papers to the High Court on administrative

side for its consideration?

This is what was done in Union of India v. Kali Dass Batish, 2006

(1) sec 779' wherein an adverse report was received after the

inclusion of the name of Respondent 1 in the select list, and the report

was forwarded to the C.J.I. In the present case it has not been placed
.~­
t-.
109
on record that all such papers were fonvarded to the High Court on

the administrative side to facilitate its decision. On the other hand

the Govemment itself had taken the decision that appellant's

candidature could not be considered in view of the adverse reports.

Jt cannot therefore be said that there has been a meaningful

consultation with the High Court before arriving at the decision not

to appoint the appellant. Article 234 specifically requires that these

appointments are to be made after consultation with the State Public

Service Commission and the High Court exercising jurisdiction in

the concemed state. The High Court may accept the adverse report

or it may not. Ultimately, inasmuch as the selection is for the

appointment to a judicial post, the Governor will have to be guided

by the opinion of the High Court. In the present case as is seen from

the affidavit of the Registrar-General in reply to the Writ Petition, in

view of the letter from the Home Department, the High Court has

thrown up its hands, and has not sought any more information from

the first respondent. It is the duty of the Government under Article

234 to forward such reports to the High Court, and then it is for the

High Court to form its opinion which will lead to the consequential

decision either to appoint or not to appoint the candidate concerned.

Such procedure is necessary to have a meaningful consultation as

contemplated under this Article. Any other approach will mean that

•• - £•0.-•--- '"'"''"-- '-~~-'-'"--·-·~•-·>·----'""-'"''-~

(~
110
\Vhatever is stated by the police -vvill be final, \vithout the same being

considered by the High Court on the administrative side.

23. In Samsher Singh v. State of Punjab, 1974 (2) SCC 831, a

Constitution Bench of this CoUit was concerned with a matter where

the Punjab and Haryana High Court had handed over the'work of

conducting an enquiry against a judicial officer to the Vigilance

Department of the Punjab Government. This Court called it as an act

of 'self-abnegation'. Para 78 of this judgment reads as follows(SCC

pp.854-855):

"78. The High Court for reasons which are not stated requested the

Government to depute the Director of Vigilance to hold an enquiry.

It is indeed·strange that the High Court which had cantrol over the

subordinate judiciary asked the Government to hold an enquiry

through the Vigilance Department. The members of the subordinate

judiciary are not only under the control of the High Court but are

also under the care and custody of the High Court. The High Court

failed to discharge the duty of preserving its control. The request by

the High Court to have the enquiry through the Director of Vigilance

was an act of self-abnegation. The contention of the State that the

High Court wanted the Government to be satisfied makes matters

worse. The Governor will act on the recommendation of the High

Court. That is the broad basis of Article 235. The High Court should
.~~-,
111
hnve conducted the enquiry prcfetably through District Judges. The

members of the subordinate judiciary look up to the High Comt not

only for discipline but also for dignity. The High Court acted in total

disregard of Atiicle 235 by asking the Government to enqmre

through the Director of Vigilance."

24. In State of Bihar v. Bal Mukund Sah, 2000 (4) SCC 640, AIR

2000 SC 1296, a Constitution Bench of this Court was concerned

with the issue as to whether it was permissible to lay down the

recruitment procedure for the district and subordinate judiciary by

framing rules under Article 309 without having a consultation with

the High Court, in the teeth of Articles 233 to 235. This Court

examined the scheme of the relevant articles of the Constitution and

the rules framed by Government of Bihar, in this behalf. Para 20 of

this judgment is relevant for our purpose, and it reads as follows

(SCC p.674):

"20. Part VI of the Constitution dealing with the States, separately

deals with the executive in Chapter II, the State Legislature under

Chapter III and thereafter Chapter IV dealing with the Legislative

Powers of the Governor and then follows Chapter V dealing with the

High Courts in the States and Chapter VI dealing with the

Subordinate Courts. It is in Chapter VI dealing with the Subordinate

Courts that we find the provision made for appointment of District

0·.
112
Judges unch::r Article 233, recruitment of persons other than the

District Judges to the Judicial Services under Article 234 and also

Control of the High Cour1 over the Subordinate Courts as laid down
'--

by Article 235. A11icle 236 deals with the topic of 'Interpretation'

and amongst others, defines by sub-article (b) the expression

''judicial service" to mean

"a service consisting exclusively of persons intended to fill the post

of District Judge and other civil judicial posts inferior to the post of

District Judge."

It becomes, therefore, obvious that, the Framers of the Constitution

separately dealt with 'Judicial Services' of the State and made

exclusive provisions regarding recruitment to the posts of District

Judges and other civil judicial posts inferior to the posts of the

District Judges. Thus these provisions found entirely in a different

part of the Constitution stand on their own and quite independent of

Part XIV dealing with Services in general under the 'State'.

Therefore, Article 309, which, on its express terms, is made subject

to other provisions of the Constitution, does get circumscribed to the

extent to which from its general field of operation is carved out a

separate and exclusive field for operation by the relevant provisions

of Articles dealing with Subordinate Judiciary as found in Chapter

,r-',,
r :.~
113
VI of Part Vl of the Constitution to which we will make further

reference at an appropriate stage in the later part of this judgment."

25. These judgments clearly lay down the principles which guide the .

interpretation and role of Articles 233 to 235 of the Constitution to

safeguard the independence of the subordinate judiciary. Artiole 234

requires a meaningful consultation with the High Court in the matter

of recruitment to judicial service. In view of the mandate of Article

234, High Court has to take a decision on the suitability of a

candidate on the administrative side, and it cannot simply go by the

police reports, though such reports will, of course, form a relevant

part of its consideration.

26. As held in paragraph 3 of Ramashankar Raghuvanshi, 1983 (2)

sec 145, to deny a public employment to a candidate solely on the

basis of the police report regarding the political affinity of the

candidate would be offending the Fundamental Rights under Articles

14 and 16 of the Constitution, unless such affinities are considered

likely to effect the integrity and efficiency of the candidate, or (we

may add) unless there is clear material indicating the involvement of

the candidate in the subversive or violent activities of a banned

organization. In the present case there is no material on record to

show that the appellant has engaged in any subversive or violent

activities.

_._.., ·• _,_ -~•·--'·· ·--~' • ._ _-_,, ..• ~-c··;~•-•:.•-•··~·

(.-":,
114
' '
The appellant has denied her alleged association with CPI (l'v1aoist)

party or CMS. Respondent No. 1 has accepted that there is no

documentary proof that CMS is a frontal organization of CPI

(Maoist). And as far as her connection CPI (Maoist) is concerned,

there is no material except the repmi of police, the bonafides of

which are very much disputed by the appellant. Besides, since the

report was neither submitted to nor sought by the High Com1, there

has not been any consideration thereof by the High Court

Administration. Thus, there has not been any meaningful

consultation with the High Court on the material that was available

with the Government. The High Court administration has thus failed

in discharging its responsibility under Article 234 of the

Constitution.

27. The Division Bench has relied upon the observations of this

Court inK. Ashok Reddy 1994 (2) SCC 303 to bring in the principle

of prerogative power to rule out judicial review. In that matter the

petitioner had sought a declaration concerning the Judges of the High

Courts that they are not liable to be transferred. One of his

submissions was that there is absence of judicial review in the matter

of such transfers, and the same is bad in law. As noted in the

impugned judgment, in K. Ashok Reddy, 1994 (2) SCC 303, this

Court did refer to the obervations of Lord Roskill in Council of Civil

r'-,.'\
I · •I
115
.'

Service Union v. Minister for the Civil Service, 1985 AC 3 74. [ 1984 J

3 All ER 935, [ 1984] 3 W.L.R. 1174 (HL) that many situations of

exercise of prerogative power are not susceptible to judicial review,

because of the very nature of the subject matter such as making of

treaties, defence of realm, and dissolution of Parliament to' mention

a few. Having stated that, as far as the transfer of Judges is

concerned, this court in terms held that there was no complete

exclusion of judicial review, instead only the area of justiciability

was reduced by the judgment in Supreme Court Advocates-on-

Record Association V. Union of India, 1993 (4) sec 441. The

reliance on the observations from K. Ashok Reddy, 1994 (2) SCC

303, was therefore totally misplaced. Besides, the appointment to the

post of a Civil Judge is covered under Article 234 and the State

Judicial Service Rules, and if there is any breach or departure

therefrom, a judicial review of such a decision can certainly lie. The

High Court, therefore, clearly erred in holding that judicial review of

the decision concerning the appointment of a Civil Judge was not

permissible since that post was a sensitive one.

Conclusion

28. Here we are concerned with a question as to whether the

appellant could be turned back at the very threshold, on the ground

of her alleged political activities. She has denied that she is in any
 () 116
way connected with CPI (Maoist) or C!v1S. There is no material on

record to show that this CMS is a banned organization or that the

appellant is its member. It is also not placed on record in which

manner she had participated in any of their activities, and through

which programme she tried to intensify the activities of CMS in

Markapuram area, as claimed in paragraph 5 of the report quoted

above. While accepting that her husband may have appeared for

some of the activists of CPI (Maoist) to seek bail, the appellant has

alleged that the police are trying to frame her due to her husband

appearing to oppose the police in .criminal matters. Prima facie, on

the basis of the material on record, it is difficult to infer that the

appellant had links/associations with a banned organization. The

finding of the Division Bench in that behalf rendered in para 19 of

the impugned judgment, K. Vijaya Lakshmi v. Govt. of A.P., 2009

(2) APLJ 52, cannot therefore be sustained.

29. We may as well note at this stage, that on selection, the Civil

Judges remain on probation for a period of two years, and the District

Judges and the High Court have ample opportunity to watCh their

. performance. Their probation can be extended if necessary, and if

found unsuitable or in engaging in activities not behoving the office,

the candidates can be discharged. The relevant rules of the Andhra

.- -··-.
.......~~ , •••• ~~-~ . . -
rr:-'\
117
Pradesh State Judicial Service being Rule Nos. 9, 10 and 11 read as

follO\VS:-

"9. Probation and officiation:

(a) Every person who is appointed to the category ofDistrict Judges

by direct recmitment from the date on which he joins duty shall be

on probation for a period of two years.

(b) Every person who is appointed to the category of District Judges

otherwise than on direct recruitment shall be on officiation for a

period of two years.

(c) Every person who is appointed to the category of Civil Judges

shall be on probation for a period of two years.

(d) The period of probation or officiation, may be extended by the

High Court by such period~ not exceeding the period of probation or

officiation, as the case may be, as specified in cls. (a) to (c) herein

above.

10. Confirmation/Regularisation: A person who has been declared to

have satisfactorily completed his period of probation or officiation

( as the case may be shall be confirmed as a full member of the service

in the category of post to which he had been appointed or promoted,

as against the substantive vacancy which may exist or arise.

11. Discharge of unsuitable probationers: If at the end of the period

of probation or the period of extended probation, the Appointing

 118
n
authority on the recommendation of the High Court, considers that

the probationer is not suitable to the post to which he has been

appointed, may by order discharge him from service after giving him

one month's notice or one month's pay in lieu thereof"

30. In view of this constitutional and legal framework, we an~ clearly

of the view that the High Court has erred firstly on the administrative

side in discharging its responsibility under Artcle 234 of the

Constitution, and then on the Judicial side in dismissing the writ

petition filed by the appellant, by drawing a.o erroneous conclusion

from the judgment in the case of Kali Dass Batish, 2006 ( 1) SCC

779. Having stated so, the Court cannot grant the mandamus sought

by the appellant to issue an appointment order in her favour. As held

by this Court in para 17 of Harpal Singh Chauhan v. State of U.P.,

1993 (3) sec 552, the court can examine whether there was any

infirmity in the decision-making process. The final decision with

respect to the selection is however to be left with the appropriate

authority. In the present matter the Division Bench ought to have

directed the State Government to place all the police papers before

the High Court on the administrative side, to enable it to take

appropriate decision, after due consideration thereof.

31. Accordingly, the impugned judgment and order dated 19-3-2009,

K. Vijaya Lakshmi v. Govt. of A.P., 2009 (2) APLJ 52, rendered by

 119
,C"'.
.. ·:::

the Division Bench of the Andhra Pradesh Hi£h Court is herebv set-
~ -
aside. The first respondent State Govemment is directed to place the

police report (produced before the Division Bench) for the

consideration of the High Court on the administrative side. The first

respondent should do so within two weeks from the receipt of a copy

of this judgment. The Selection Committee of the High Court shall,

within four weeks thereafter consider all relevant material including

this police report, and the explanation given by the appellant, and

take the appropriate decision with respect to the appointment of the

appellant, and forward the same to the Respondent 1. The first

respondent shall issue the consequent order within two weeks from

the receipt of the communication from the High Court. This appeal

and the Writ Petition No. 26147 of2008 filed by the appellant in the

High Court will stand disposed off with this order. In the facts of this

case, we refrain from passing any order as to costs.

X. In A.C. Narayanan v. State of Maharashtra, 2014 (11) SCC

790 it was held (at sec pp.808-809 at paras 32-33):

"32. Similar substantial questions were raised in the appeal arising

out ofS.L.P (Crl.) No. 2724 of2008, which stand answered as above.

Apart from the above questions, one distinct query was raised as to

whether a person authorized by a Company or Statute or Institution

can delegate powers to their subordinate/others for filing a cri1ninal

I.-.-..,,
'·
120
~' '

complaint? The issue raised i~ in reference to validity· of sub-

delegation of functions of the povver of attorney. We have already

clarified to the extent that the attorney holder can sign and file a

complaint on behalf of the complainant-payee. However, whether

the power of attorney holder will have the power to further delegate

the functions to another person will completely depend on the te1ms

of the general power of attorney. As a result, the authority to sub-

delegate the functions must be explicitly mentioned in the general

power of attorney. Otherwise, the sub-delegation will be inconsistent

with the general power of attorney and thereby will be invalid in law.

Nevertheless, the general power of attorney itself can be cancelled

and be given to another person.

33. While holding that there is no serious conflict between the

decisions in MMTC (2002 (1) SCC 234) and Janki Vashdeo

Bhojwani (2005 (2) SCC 217), we clarify the position and answer

the questions in the following manner:

33.1 Filing of complaint petition under Section 138 of N.I Act

through power of attorney is perfectly legal and competent.

33.2 The Power of Attorney holder can depose and verify on oath

before the Court in order to prove the contents of the complaint.

However, the power of attorney holder must have witnessed the

,a:-· 121
\_:_
transaction as an agent of the p<~yee/holder in due course or possess

due knowledge regarding the said transactions.

33.3 It is required by the complainant to make specific assertion as

to the knowledge of the power of attorney holder in the said

transaction explicitly in the complaint and the power of attorney

holder who has no knowledge regarding the transactions cannot be

examined as a witness in the case.

3 3.4 In the light of section 145 ofN .I Act, it is open to the Magistrate

to rely upon the verification in the form of affidavit filed by the

complainant in support of the complaintunder Section 138 of the N.J

Act and the Magistrate is neither mandatorily obliged to call upon

·the complainant to remain present before the Court, nor to examine

the complainant of his witness upon oath for taking the decision

whether or not to issue process on the complaint under Section 138

of the N.L Act.

33.5 The functions under the general power of attorney cannot be

delegated to another person without specific clause permitting the

same in the power of attorney. Nevertheless, the general power of

attorney itself can be cancelled and be given to another person.''

XI. In A.C. Narayanan v. State of Maharashtra, 2015 (12) SCC

203 it was held (at sec pp.215-216 at paras 20-22):

"Case of G. Karnalakar
~~
l'
122
20. In this case it is not in dispute that the complaint was filed by one

Shri V. Shankar Prasad claiming to be General Power of Attorney of

the complainant Company. Subsequently PW 1, Shri Ravinder Singh

gave the evidence on behalf of the Company under the General

Power of Attorney given by the complainant Company. The

complaint was not signed either by the Managing Director or the

Director of the Company. It is also not in dispute that P\V 1 is only

the employee of the Company. As per Resolution of the Company

i.e. Ext.P-3 under the first part Managing Director and Director are

authorized to file suits and criminal complaints against the debtors

for recovery of money and for the prosecution. Under third part of

the said Resolution they were authorized to appoint or nominate any

other person to appear on their behalf in the Court and engage

lawyer, etc. But nothing on the record suggest that an employee is

empowered to file the complaint on behalf of the Company. This

apart, Managing Director and Director are authorized persons of the

Company to file the complaint by signing and by giving evidence.

At best the said persons can nominate any person to represent

themselves or the Company before the Court.

21. In the present case one Shri Shankar Prasad employee of the

Company signed the complaint and the Deputy General Manager of

the Company i.e. PW 1 gave evidence as if he knows everything

~
1- J'
123
'
though he does not know anything. There is nothing on the record to

suggest that he -vvas authorized by the Managing Director or any

Director. Therefore, the Ivlagistrate by judgment dated 30-10-2001

rightly acquitted the appellant. In such a situation, the case of the

I
appellant is fully covered by decision by the larger Bench of this

Court passed in the present appeal.

22. We have no other option but to set aside the impugned judgment

dated 19-9-2007 passed by the High Court of Judicature, Andhra

Pradesh at Hyderabad in (Criminal Appeal No.578 of2002) Surana

Securities Ltd. v. G. Kamalakar, 2008 Cri LJ 1221 (AP). The

judgment and order dated 30-10-2001 passed by the Court of the

XVIIIth Metropolitan Magistrate, Hyderabad in CC No. 18 of 2000

is l!pheld."

25. That it is well settled that a complaint before NHRC is a separate

(civil) remedy and is in addition to the remedy available under criminal

law.

26. A TABULAR NOTE ON PROTECTION OF JUDGES FROM

CRIMINAL PROSECUTION BY (1) THE EXECUTIVE, (2) THE
GENERAL PUBLIC AND (3) THE LAWFULLY CONSTITUTED
COURT OF CRIMINAL JURISDICTION UNDER {A) SECTION 6
OF THE PREVENTION OF CORRUPTION ACT, 1988 AND (B)
SECTIONS 30 & 31 OF THE PROTECTION OF HUI\1AN RIGHTS
ACT, 1993

Prosecutio PC Act, 1988, Section Remarks Act 10 of Remar

n by/ 6 1994, Secti' •ns ks
under 30,31 ...J
r:~
124
jt·

!The -~-- -----T BC RAY, -.T.-:rA;ti~;-2()C3):,-l-i~ Se~ti;ns 30,1 Paris

1
Executive \ Undoubtedly, respect for / Article 53, 131 of Act 10 of I Principl
I the judicimy and its 1 Article 74, 1994 are for the I es
public credibility and I Article J24, purposes of 2015
dignity has to be clauses (4) prosecuting (8)
maintained in order to and (5), human rights sec
ensure respect for the Article 217, offences 744
Judges in public and also Article 218, committed by 1991
for the decisions Article 235, the e~ecutive/ (4)
rendered by the judges. A11icle 311, government SCC
It is, therefore, necessary Article 361, and its officials 655
to evolve some method clause (2) of and by private
commensurate with the the _ persons
grant of sanction in I Constih1tion colluding with
cases of serious I of India, them. Here the
allegation corruption , Section 1 of term
and acquisition or the the Judicial "Executive" ~-
possession of Officers , has to be seen
disproportionate assets Protection as wide enough
which the Judge cannot Act, 1850, to include all
satisfactorily account for Section 21 the amorphous
or possession of (Third), wings of
property Section 77 of Government,
disproportionate to the the Indian and includes
sources of income of the Penal Code, any person in a
Judge. If these things are Judges position of
allowed to go unnoticed Inquiry Act, authority, by
it will create a serious 1968, any identifiable
inroad on the dignity 1977 (4) sec means, over the
respect, and credibility 193 at sec citizen(s) or
and integrity ofthe High pp.217-8, para individual or
Office which a Judge of 15 group of
the Supreme Court and 1981 Supp persons.
of the High Court SCC 87 at 2. Hence no
occupies resulting in the sec pp.223- arm of
erosion on the dignity 4, para 27, Government
and respect for the high 1991 (3) sec may claim any
office of the Judges in 655 at sec protection
the estimation of the pp.674-3, whatsoever
public. [1991 (4) sec paras 1-12 under these two
655 at sec pp.682-3, sections from
para 12] prosecution by
an independent
 12-~
_l ..._)
r
.--------~-1<. JAG ANNAJ'H~\ ~----------------Ti:;l;~nm;--~ight;T--
! SHETTY, J., But vve 1 I prosecutor,
. know
1 of no la-vvJ lawfully
/ providing protection for I / appointed (by
i Judges from Criminal I NHRC?), under
prosecution. A1iicle I the Paris
I 361 (2) confers Principles (held
immunity from criminal to be 1binding
prosecution only to the under Article
President and Governors 142 law) in a
of States and to no court lawfully
others. Even that established by
immunity has been Parliament in
limited during their term 11 order to fulfil
of office. The Judges are an international
liable to be dealt with obligation and
just the same way as any to comply -vvith
other person in respect the Paris
of criminal offence. It is I I Principles.
only in taking of bribes
or with regard to the
1
offence of com1ption the
sanction for criminal
prosecution is required. _
Undoubtedly, respect for I
the judiciary and its
public credibility and
dignity has to be
maintained. [1991 (4)
sec 655 at sec
pp.706-7, para 56]
LlVI SHARMA, J .,
Although the Judges of
the higher judiciary
perform important
functions and are vested
with special jurisdiction,
at cannot be forgotten
that judicial power,
wherever it is vested, is
integral and basic for a
democratic constitution.
A large number of cases
 t
..;.-
126
,- ------------:~
-·---·-------------------~------1

1
[ are fina~ly decided ~t the I I

' stage ot the subordmate

judiciary. The I
subordinate judiciary,
therefore, also needs the
same independence
which is essential for the
high~r judiciary. It is, I
therefore, not safe to
assume that the Act
intended to make in its
application any
discrimination between
the lower and the higher j
judiciary. Protection to l
the public servant in I
general is provided I
under Article 311 and
the interest of the '
subordinate judiciary is
further taken care of by
the High Court, and this
I
along with the
I provisions regarding
preVIOUS sanction
shields them from
unjustified prosecution.
Similarly protection is
available to the High
Court and Supreme
Court Judges through
the provisions of Article
124(4) and (5) of the
Constitution. So far this
aspect is concerned, the
two categories of
Judges--High Court and
Supreme Court Judges
on the one hand and the
rest on the other have not
been treated by the law
differently. There cannot
be any rational ground
 127
/'
/. -
-~I!on·th~b~tsis of vvhich_;T ___ _
. I
-·-·-··-·· I
member o f a h1gher I
judiciary may ~ be I
allowed to escape
prosecution while in
identical circum- stances
a member of the I
subordinate judiciary is
tried and convicted.
Such an interpretation of
the Act will militate
against its constitutional
validity and should not,
therefore, be preferred. I
~
[1991 (4) sec 655 at
sec .719, ara 86]
No protection Paris
1
The Shall only lie before the 1991 (3) SCC
General court constituted under 655.
1
is needed since Principl
Act 10 of 1994, Sections \ Qu~stion of
1
Public
1
general public 1 es 1

30,31 law as is powerless in \2015 I

elucidated these matters, (8)
above other than sec
judges who 744
may be 1991
prosecuted (3)
after obtaining sec
administrative 655
approval of the
Chief Justice of
the High Court
(Supreme
Court of India
in respect of
higher
judiciary)
The Shall only lie before the 1991 (3) sec No protection I Paris
Competent court constituted under 655, is needed since Principl
Court of Act 10 of 1994, Sections Question of general public es
I
law as is powerless in 2015 '
Criminal 30,31
Jurisdictio elucidated these matters, (8)
n above other than sec
judges who 744
may be
/- 128
------------T------~-------------------- ~
I ' : prosecuted 1991
after obtaining (3)
I
administrative sec I
I approval of the /655
Chief Justice of
the Hioh
b Court I
(Supreme
Court of India
of
1
. I
m respect
higher
, judiciary) I

CONNECTED QUESTION OF LAW: Whether, if offences of

corruption by public senants are also human rights offences as has been
held under Article 142, the only (most appropriate) proper forum for
prosecutions of such offences lies solely within the domain of Act 10 of
1994, Sections 30, 31?

27. That this court is duty bound to act in cases of human rights

violations even in these collateral proceedings as has been held in

Nawabkhan Abbaskhan v. State of Gujarat, 1974 (2) SCC 121 at SCC

p.l28 para 10 and in D.K. Basu v. State ofWest Bengal, 2015 (8) SCC 744.

28. That the Hon'ble Court is competent to entertain this complaint u/s

30 of the Protection of Human Rights Act, 1993 even in the absence of

independent human rights prosecutor, by having independent human rights

prosecutor appointed specially for this case.

29. Steps In Constitutional Criminal Law Matter:

l.Enable the immediate appointment of independent human rights

prosecutor approved by the Competent Authority in terms of Section 31 of

ActNo. 10of1994.
{: 129
2.Direct independent human rights prosecutor to examine the case fi ies of

the cases \vith a vie\v to establishing recourse to special procedure under

Article 235 of the Constitution of India.

3.If prima facie case as alleged appears from the cursory examination of

the complaint/ law/ facts by the independent human rights prosecl)tor, the

matter be referred to the Competent Authority under Article 235 of the

Constitution of India or the higher Competent Authority under Article

1241142 of the Constitution of India through the Ld. District & Sess:ions

Judge/ Hon'ble the Chief Justice of the High Court of Delhi alongwith all

case files for allocation to the appropriate/ competent court of special judge

human rights as the Competent Authority may decide keeping in view the

peculiar facts and circumstances in the interests of justice.

4.Thereafter, further proceedings shall be taken up by the court of special

judge human rights of jurisdiction assisted by independent human rights

prosecutor or as may be directed by the Competent Authority under Article

235 of the Constitution of India or as directed by the higher Competent

Authority. The procedure to be followed shall, as far as may be possible,

be in accordance with the procedure specified in the Code of Criminal

Procedure, 1973 (2 of 1974) for trial before a Court of Session.

30. That the complainant(s) has affixed the court fees as per requirement.

A list of documents enclosed is attached with the copies of the said

documents. (439 pages)

 t-
....,i .
1~ iO
-"'-·~

PRAYER

That it is therefore humbly prayed that Hon 'ble Court may kindly set

the criminal law in motion in this "Constitutional Criminal Matter"

so as to take this complaint under Sections 30 & 31 ofthe Protection

of Human Rights Act, 1993 read with Articles 2.3, 5.2, '& 9.3 of

International Covenant on Civil and Political Rights, 1966 for

unconstitutional human rights violation of judges of the subordinate

courts amounting to human rights offence and to cause a reasoned

judicial deteimination under Article 235 ofthe Constitution of India

so as to restore the dignity and human· rights of each and every judge

of the Subordinate (District) Courts in India and to take matters to

their logical conclusion in the sudden, unexpected death taken place

in India at Nagpur on the intervening night of30.11.14/ 01.12.14 in

circumstances which are <;loaked in secrecy but conclusively reveal

miscarriage of justice upon a proper interpretation of Sections 17 6(1)

and 39(viii) of the Criminal Procedure Code read with Sections

166A(b.) & 409 of the Indian Penal Code and Sections 35, 36, 37, 38,

39 & 106 of the Indian Evidence Act.

New Delhi
~.
[Lt Col Sarvadaman Singh Oberoi (Retd)]
DATED:- 29.01.2018 Complainant-in-person
1102, Tower 1, Uniworld Garden Sector 47, Gurgaon 122018
Mob: 9818768349

..
1·
"""-"··-
r·r-'
131
'·~.,

IN THE COURT OF SPECIAL JUDGE, HUI\'lAN RiGHTS,

PATIALA HOUSE, NE\V DELHI

COJVIPLAJNT CASE No. OF 2018

IN THE MATTER OF:

Sarvadaman Singh Oberoi ......... Complainant
Versus
I
Union of India & Ors ...... Defendants

New Delhi
~~
[Lt Col Sarvadaman Singh Oberoi (Retd)]
DATED:- 29.01.2018 Complainant-in-person
1102, Tower 1, Uniworld Garden Sector47, Gurgaon 122018
Mob: 9818768349
 , •. •• •··-~---• .. •·· . --··- ,,....._._.,;,_... ,_._,_._v_.,,'\o•~·~.-.:..~'''' '·''-·'•··,·, ,, ~- .. ~ .....'..1.o+'..!."u.~ --·~- -· .. -". ..... :11.1

132
LIST OF DOCUMENTS
l. EXTRACTS FROM "THE ESSENTIALS OF FORENSIC MEDICINE AND
TOXICOLOGY" 34TH ED 2017 BY DR KS NARAYAN REDDY ISBN 978
93 5270 103 2: PAGES 128 TO 143- DEATH AND ITS CAUSE (18 PAGES)

2. NATURAL CAUSES OF SUDDEN DEATH, 2006, FORENSIC V,

DEPARTMENT OF PATHOLOGY, UNIVERSITY OF THE vVEST INDIES
AT MONA, JAMAICA (7 PAGES)

3. SUDDEN AND UNEXPECTED NATURAL DEATHS- A FOUR-YEAR

· AUTOPSY REVIEW, JOURNAL OF PUNJAB ACADEMY OF FORENSIC
MEDICINE & TOXICOLOGY, RAM NAGAR, BANUR, DISTT.
PATIALA, JPAFMAT 2008; 8(2). ISSN 0972-5687, PP.20-24 (5 PAGES)

4. LETTER WRITTEN TO CHIEF JUSTICE OF INDIA DATED 06.02.2015 (4

PAGES)

5. LETTER WRITTEN TO CHIEF JUSTICE OF INDIA DATED 11.02.2015 (4

n A I'"CC\
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6. PAGE 52 OF THE SID, MUiviBAI REPORT CONTAINING SAY OF

ADHOC DISTRICT J1JDGE, BAR.A...MATI, SH. ROOPESH R. RA. THI
DATED 24.11.2017 WITH TYPED COPY (2 PAGES)

7. ORDERS PASSED IN SESSIONS CASENO. 177/2013 BY CBI JUDGE,

GREATER BOMBAY (399 PAGES):

(1)13.08.2013: ALLOWING CDR ON APPLICATION OF ACCUSED NO.

15 (10 PAGES)

(II) 09.05.2014: BAIL OF ACCUSED NO. 1 REJECTED; ORDER

DICTATED ON 09.05.2014, TRANSCRIBED ON 26-27 MAY 2014
SIGNED ON 30.05.2014, CBI JUDGE SH. J.T. UTPAT TRANSFERRED
SUDDENLY ON 25.06.2014 WHEREAS 26.06.2014 HAD BEEN FIXED
FOR FRAMING OF CHARGE AND ALL ACCUSED WERE
COMPULSORILY TO BE PRESENT ON 26.06.2014 (40 PAGES)

(III) 30.10.2014: EXEMPTION APPLICATIONS OF NIANY ACCUSED,

ACCUSED NO. 16 AND 21 APPLICATIONS FOR PERMANENT
EXEMPTION FIXED FOR 10.11.2014 (10 PAGES)

(IV) 10.11.2014: CBI JUDGE, SH. BH LOYA GRANTED EXEMPTION

APPLICATION OF ACCUSED NO. 16, 15.12.2014 HAD BEEN FIXED
FOR FRAMING OF CHARGE AND ALL ACCUSED WERE
COMPULSORILY TO BE PRESENT ON 15.12.2014 (6 PAGES)
i
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.
133
\:,•.

n (V) 10.11.2014: EXEMPTION APPLICATiON OF ACCUSED NO. 21

/i.LLOWED, 15.12.2014 HAD BEEN FIXED FOR FRAJ\iliNG OF CHARGE
AND ALL ACCUSED 'vVERE COMPULSORJL Y TO BE PRESENT ON
15.12.2014 (4 PAGES)

(VI) 30.12.2014: ACCUSED NO. 16, SH. AMIT SHAH DISCHARGED BY

CBI JUDGE, SH. MB GOSA VI (75 PAGES)

(Vll) 26.02.2015: ACCUSED NO. 21 DISCHARGED (14 PAGES) I

(VIII) 02.03.2015: ACCUSED NO. 36 DISCHARGED FOR lvVANT OF

SANCTION (18 PAGES)

(IX) 31.03.2015: ACCUSED NO. 37 DISCHARGED (13 PAGES)

(X) 08.04.2015: CORRECTION OF DISCHARGE ORDER OF ACCUSED

NO. 21 (3 PAGES)

(XI) 27.04.2015: ACCUSED NO. 18 DISCHARGED (8 PAGES)

(XII) 28.04.2015: ACCUSED NO. 17 DISCHARGED (1 0 PAGES)

(XIII) 29.04.2015: ACCUSED NO. 15 DISCHARGED (20 PAGES)

(XIV) 26.05.2015: OBJECTION OF ACCUSED NO. 1 TO DROPPING

ACCUSED NO. 14 NOW ALLOWED (6 PAGES)

(XV) 13.07.2015: ACCUSED NO. 22 DISCHARGED (15 PAGES)

(XVI) 18.08.2016: ACCUSED NO. 12 DISCHARGED (12 PAGES)

(XVII) 25.08.2016: ACCUSED NO. 2 DISCHARGED FOR WANT OF

SANCTION (27 PAGES) BY CBI JUDGE, SH. MB GOSAVI

(XVIII) 24.07.2017: ACCUSED NO. 28 DISCHARGED BY CBI JUDGE,

SH. SJ SHARMA (24 PAGES)

(XIX) 01.08.2017: ACCUSED NO.1 DISCHARGED (46 PAGES)

(XX) 01.08.2017: ACCUSED NO.3 DISCHARGED (34 PAGES)

(XXI) 29.11.2017: ORDER TO BAN THE PRINT ELECTRONIC AND

SOCIAL MEDIA FROM PUBLISHING OR REPORTING THE TRIAL OF
THE CASE. (4 PAGES)

[TOTAL 439 PAGES]

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 Departn:ent of Pathology
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University of the West Indies at Mona, Jamaica

FORENSICV

NATURAL CAUSES OF SUDDEN DEATH, 2006

· Learning Objectives:

At the end of this lecture you should be able to:

• Define sudden (natural) death
• Classify the causes of sudden death
• Discuss sudden cardiac death
• Discuss the sudden infant death syndrome
• Discuss the causes of sudden death in Jamaica

The medicolegal term "sudden death" (sometimes called "sudden unexp~cted

natural death"), refers to those deaths which a::-e not preceded by significant
symptoms. The term as used obviously excludes violent or traumatic deaths.

There is no universally accepted definition of sudden death, and time periods varying
from 1 to 48 hours have been used in different places. The WHO's definition is death
occurring within 24 hours of the onset of symptoms (the definition commonly used
in Jamaica).

While it is true that many sudden deaths are not necessarily unexpected, and some
unexpected deaths are not necessarily sudden, it is extremely important that these
autopsies be done, and that they be conducted properly, as the findings in such cases
may have profound effects on the lives and welfare of the family of the deceased, law
enforcement agencies, hospital authorities and private corporations including insurance
compames.

The Coroner's Act of Jamaica states that a Coroner's postmortem must be done in all
cases in. which sudden death occurs if the cause of death is unknown, or in which a
medical certificate of cause of death under the Registration (Births and Deaths) Act in
respect of such person will not be forthcoming.

Causes of Sudden Natural Death

These may be conveniently classified incorporating anatomical systems. Some degree of

overlap in classification is inevitable. One system of classification is as follows:

(1) Cardiovascular (6) Iatrogenic

(2) Respiratory. (7) Miscellaneous
(3) Central Nervous System (8) Special causes in children
(4) Abdominal (9) Indeterminate
( 5) Endocrine
 2/'L
Many of these diseases have been, or \Vill be, adequately discussed in the lectures
concerned with the relevant systems; however, some important topics will be mentioned
here.

Cardiovascular System
Diseases of the cardiovascular system account for the majority of cases of sudden
natural death worldwide, usually accounting for approximately 90% of such cases_ This
is the case in the USA, Japan and many European countries, and is said to be the case in
Jamaica according to government-compiled statistics based largely on information
gleaned from death certificates.
Cardiovascular deaths may be divided into coronary and non-coronary causes.
(i) Coronary artery disease accounts for the majority (about 90%) of
cardiovascular deaths, and is divided into atherosclerotic and
nonatherosclerotic types, with the former accounting for most of the cases.
Non-atherosclerotic coronary artery disease includes congenital
abnormalities, embolism, arteritis, dissecting aneurysms, and external
compression or ostial obstruction.
(ii) Non-coronary cardiovascular diseases include congenital anomalies,
valvular heart disease e.g. rheumatic heart disease and syphilis, hype1tensive
heart disease, myocarditis, ruptured aortic aneurysm - atherosclerotic,
syphilitic, dissecting (acute aortic dissection); and cardiomyopathy.

Sudden Cardiac Death

1\rlost cases are due to coronary artery disease. The most common anatomical finding is
severe coronary artery atherosclerosis. There may be associated coronary artery
thrombosis, recent myocardial infarction or healed myocardial infarction (myocardial
fibrosis), but these are variable and relatively infrequent, and are NOT necessary to
v&lidate the diagnosis. The autopsy finding of critical co:-onary stenosis (defined as one
or more ofthe major extramural coronary arteries with more than 75% cross-sectional
luminal narrowing) is enough to invoke a diagnosis of sudden cardiac death, and this is
detected consistently in 90% or more of these patients. Death is thought to be due to
disturbances of rhythm, i.e., dysrhythmias, in most of these cases.

Risk factors for Sudden Cardiac Death:

+ Age and Sex: Risk of sudden death is greater in males and increases with
age. The death rate increases significantly from age 45 to 64 years.
+ Previous coronary artery disease: Patients with known coronary artery
disease had a fourfold greater incidence of sudden death. Note, however, that
about 55% of those dying suddenly had manifested no prior evidence of coronary
artery disease.
+ Blood pressure: Incidence of sudden death increases with blood pressure.
Men with systolic blood pressures > 160 mm Hg had an incidence of sudden
death three times greater than those who had systolic pressures < 140 mm Hg.
+ Blood cholesterol: Elevated levels are regarded as a risk factor. However,
no stepwise trend proportional to serum cholesterol was noted.
+ Cigarette smoking: Smokers had a 3-fold grr ater incidence of sudden
death than non-smokers. Smokers of> 1 pack per day had higher rates than did
smok~rs of< 1 pack per day.

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 2(3
+ Overweight: Risk increases progressively vvith increased weight; the risk
is more than doubled for those weighing 120% or more than their ideal weight.
+ Left ventricular hypertrophy: Patients with ECG evidence of left
ventricular hypertrophy had a 5-fold increased incidence of sudden death.

Sudden Cardiac Death in the Young

The sudden and unexpected death of an apparently healthy young adult as a result of
natural causes is an infrequent, but always-tragic event. In large autopsy-based surveys
of populations of athletes in the United States, hypertrophic cardiomyopathy has
consistently been the single most common cardiovascular cause of suddert death.

The second most frequent cardiovascular cause of sudden death on the athletic field is
congenital coronary-artery anomalies in which the artery arises from the wrong aortic
sinus (most commonly, the left main coronary artery originates from the right sinus of
Valsalva.

Other causes of death include other congenital cardiac malformations e.g. congenital
valvular, aortic stenosis, myxomatous mitral-valve degeneration (Marfan's syndrome),
as well as other causes such as myocarditis, and uncommonly accelerated
atherosclerotic coronary artery disease. (A good reference is "Sudden death in young
athletes" by Barry Maron, New England Journal ofMedicine, Vol. 349: 1064-1075,
Sept. 11, 2003.)

N.B. About 2 percent of young athletes who die suddenly have normal cardiac
structure at autopsy, and no definitive cause of death can be established. Some of these
people are believed to have a variety of conduction abnormalities without
morphological evidence visible at autopsy.

Some prominent athletes who suffered sudden death include:

(1) Marathon runner Jim Fixx (1984) [link for 1-6].
(2) Olympic volleyball star Flo Hyman (1986)- Marfan's syndrome
(3) NBA basketball star Hank Gathers (1990)
(4) Olympic figure skater Sergei Grinkov (1995)
(5) All pro NFL player Korey Stringer with the Minnesota Vikings (2001)
(6) All-star pitcher for the St. Louis Cardinals, Darryl Kile (2002)
(7) International soccer player, Cameroon & Manchester City, Marc-Vivien Foe,
link 1; link 2; link 3.

The following causes of sudden unexpected natural death are by no means exhaustive
but merely serve to indicate the wide spectrum of disease that may be implicated in
such cases.

Respiratory System - Pulmonary embolism; massive haemoptysis e.g. secondary to

tuberculosis or malignancy; severe pneumonia - viral, bacterial; asthma; anaphy-
J~xi~; airway o~struct:ion etc.

Central Nervous System- "Stroke" i.e. (1) intracerebral haemorrhage secopqary tq

; : : : ~ : : 'l '
 2/4
hypertension or other cause; (2) infarction secondary to atherosclerosit: or
embolism; (3) subarachnoid haemorrhage secondary to ruptured berry
aneurysm or other cause. Other causes include meningitis; epilepsy; brain tllmour
etc

Abdominal- Massive haemorrhage from viscus into peritone(:ll cavity or gastro-intestinal

tract e.g. duodenal ulcer, gastric ulcer, ulcerative colitis or diverticulitis;
malignancy; ruptured ectopic pregnancy; ruptured viscus - bowel, ovarian cysts;
fulminant hepatic failure; acute pancreatitis etc.

Endocrine - Adrenal insufficiency; diabetic coma, myxoedema, parathyroicl crisis etc.

Iatrogenic -Problems related to prescription drugs; sudden withdrawal of steroids;

complications of anaesthesia; mismatched blood transfusion etc.

Miscellaneous - Drug abuse~ anaphylaxis; bacteraemic shock; shock from dread, fright
or emotion (vagal inhibition), sickle cell crisis, alcoholism etc.
Drug Abuse
This involves abuse of a wide variety of controlled substances (see lecture notes
on "Poisoning" under "recreational drugs"). Cocaine in its various forms is the
"recreational" drug of choice in the USA _today. Fatal cardiac arrhythmia,
microvascular injury and acute myocardial ischaemia due to coronary vasospasm
are the most important causes of cocaine-related sudden deaths. The
cardiotoxicity of cocaine is not limited to massive doses of the drug, and
underlying heart disease is not a prerequisite for cocaine-related cardiac deaths ..

Special causes in children- Cot death (SIDS) ... discussed below.

Indeterminate - This category is reserved for those cases in which the cause of death
remains in doubt even after an exhaustive study.

Sudden Infant Death Syndrome (SIDS) - Cot or Crib Death

This condition may be defined as the death of an infant (under 1 year of age) which
remains unexplained after a thorough case examination including:
+ A complete autopsy (including histological examination and toxicological
investigations)
+ Investigation of the scene and circumstances of the death
+ Review of the medical history of the infant and family.
These deaths are of exceptional importance in thatthey are totally unexpected and may
therefore arouse suspicion of foul play. The children are usually well on the day before
death (may have a cold) and are found dead in their cots the next morning. SIDS is the
commonest mode of death in infancy outsjde the perinatal (first week) period in Britain;
in the USA, it is the leading cause of infant' mortality (deaths occurring between 28-365
days), accounting for approximately one-third of all such deaths. Despite decreasing
incidence in both Britain and the USA, it still causes as many as about 2,000 deaths each
year in Britain and between 5,000 and 7,000 deaths per annum in the USA
 '2/r-
Death due to SIDS is rare under 1 month and over 6 months. The majority of deaths
occur between the ages of2 and 4 months. An epidemiological profile of SIDS has been
developed from numerous studies:
• In the USA, the risk is increased 2-3 times in African-Americans, and 3 times in
Native Americans, over whites.
• It is more common in twins.
• It is more common in boys.
• It occurs more commonly in winter months.
• Most deaths occur during household sleeping hours.
• There is an excess of deaths on weekends. 1
• Some workers show a higher rate in urban areas over rural ones, but other
studies have shown the opposite.
• There is an excess of deaths amongst lower socioeconomic groups.
• The infants are more likely to have been born to young mothers of high parity.
• Mothers ofvictims ofSIDS show an increased incidence of a problematic
antenatal period including factors such as:
(a) Poor prenatal care
(b) Low weight gain
(c) Anemia
(d) Use ofillegal drugs
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(f) Threatened abortion
(g) Antepartum haemorrhage
(h) Urinary tract infection or STD in the first trimester
• There is an association with premature delivery, anaesthetic during labour, and
short second stage of labour.

Autopsy Findings

There are no significant abnormal external signs. Internally, petechial haemorrhages are
seen on the surface of the thymus, pericardium and lungs (visceral pleura) in 70-95% of
cases. The lungs are bulky and firm, and histologically show focal oedema and patchy
collapse. The vocal cords may show inflammatory changes with or without ulceration.

+ The cause of SIDS is unknown. Theories are, and have been, numerous and have
now been largely discarded. Some include: (a) "status thymolymphaticus" -
respiratory vascular obstruction by an "enlarged thymus", (b) accidental smothering
by pillows or bedclothes, (c) epidural haemorrhage, (d) adrenal insufficiency, (e)
parathyroid aplasia/hypoplasia, (f) fulminating viral infection, (g)
hypersensitivity to cow's milk proteins, (h) abnormalities of cardiac conducting
system leading to fatal ~rrhythmias, (i) unspecified immunological abnormalities and
G) undiagnosed viral infections, especially those leading to viral myocarditis.

The Importam.:e of SJ~~pfJig fosi~'op

There is a, stron~ associ6ttoq P~tween the pron~ sle~ping positiop anq SJDS. Studies
wprl<fwide have shown that SIDS rates declined up to 50% with decreased prev(!.lence of
prone sleeping. In fact, in 1992, the Amefican Academy of Pediatrics began
r~<;:'qnun~ndi11g that parents place infants on their ·back or side to sleep. A national
:• . . . . · ' ;._

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campaign (the "B~ck to Sleep" campaign) was launched in 1994 to promote s.upine
positioning during sleep.

Unifying Concept as to the cause ofSIDS:

Mounting evidence suggests that some SIDS babies are born with brain abnormalities
that make them susceptible to sudden death. Many have abnormalities in the arcuate
nucleus, the part of the brain thought to be important in controlling breathing and
waking during sleep. Such abnormalities may stem from maternal antenatal problems,
e.g. prenatal exposure to toxins, hypoxia etc., and we know that cigarett~ smoking in
pregnancy for example, can reduce foetal oxygen supply.

Normally, when sleeping babies experience oxygen lack or excessive C02 levels, e.g.
when they have respiratory infections that hamper breathing, or if they rebreathe
exhaled air when sleeping prone, the brain would trigger reflexes to wake them up,
make them cry, or otherwise change their breathing patterns to compensate. A baby
with a flawed arcuate nucleus (or other brain abnormality) might lack, or have
impairment ot: these protective reflexes and succumb to SIDS.

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Cause of death data in Jamaica are coliated (from death certificates) and published by
the Statistical Institute of Jamaica~ but these figures are genera~. and do not indicate
which of the deaths are "sudden deaths'~

The only published data that can be approximated to sudden death-type information
are:

{1} A 3-year review of 946 coroner's autopsies performed at the Kingston Public
Hospital (M. Ramu~ West Indian Medical Journal~ 1976; 25: 235-40}~ found that
38% oftht:: deaths were due to natural causes. Ramu stated that these sudden
natural deaths were "due chiefly to broncho-pneumonia and cerebro-vascular
accidents'~ and made thepoint that deaths due to coronary heart disease
were comparatively few.

{2} A series of 1~640 coroner~s autopsies performed at the Dept. of Pathology~

UWI~ natural deaths accounted for 51% of cases (Escoffery & Shirley~ Forensic
Science International~ 2002;129: 116-121 Pubmesi). The most com; non causes
of death in descending order of frequency were cerebrovascular accidents~

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 ----------- '2/7
pneumonia, pulmonary embolism and coronary atherosclerosis {ischoemic
r:-:::~ heart disease).

This relatively low prevalence of deaths due to coronary atherosclerosis might reflect
(among other things) a selection bias, as all of the cases were in-hospital deaths.

CTE/cte/Jan 2006

SOURCE:
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.lf'~FMAT
( :-.~
2008; 8(2}.1SSN 0972-5687
3 I I
L SUDDEN AND UNEXPECTED NATURAl DEATHS - A.FOUR-YEAR AUTOPSY REVIEW --]

Or. Dinesh S Rao

Dr. Yadhukul
Dept. of Forensic Medicine, Sri Siddhartha Medical College, Agalkote, Tumkur-572107, Karnataka

Abstract
Sudden and unexpected death is an indication for a medicolegal autopsy. The present study constitutes
both Prospective and Retrospective periods and was undertaken in Department of Forensic-Medicine at
R.M.C. Loni, India, between the period Jan 2000 to Dec. 2004, with the object of studying this untimely
deaths. A total of 1176 Medico-Legal Autopsies were performed during this period. Sudden and
Unexplained deaths formed 8.67% of Medico Legal Autopsies, with Male to Female ratio of 5.8:1. About
66.67% of cases were due to Cardiovascular Pathology, 27.45 %were due to Pulmonary Pathology. All
natural deaths occurring within 24hours (WHO) from the onset of signs and symptoms were considered.
Cases involving trauma, drugs, poison, asphyxia, decomposition were excluded.
Keywords: Sudden Death; Natural death

Introduction cause of death. But there are instances where

A person likely to die in the opinion of treating
physician in a particular manner dies otherwise,
is also a sudden death to be investigated. When
death occurs on the spot due to violent trauma
are homicidal, suicidal or accidental nature, it is
an exception to death which has occurred as
sudden. When a person dies by any other
causes and manner than expected, where a
person suddenly dies in a manner otherwise
than expected not only it's a natural death but
consider "Sudden Death" to be thoroughly
investigated. The cause of death is often
evident from the postmortem findings. But in
some of the cases the diagnosis is not obvious
homicides were disguised as Natural deaths.
As such Pathological or Clinical Autopsy can
never happen because it is next to impossible to
convince the nearest relatives for the consent
irrespective of the religion. Once a case of
Sudden death is reported to the hospital
(Casualty) the Doctor in charge of the Causality
reports the matter to the Police, the police in
turn registers it as UNNATURAL and orders for
the autopsy
The Size of the population limited to the
jurisdiction to this autopsy study is around 4-5
lakhs. The group involved individuals of all age
group, Sex, religion, caste and Nationality.

All Natural deaths autopsies which were carried
out in this study were deemed Medico-Legal
because of sudden nature of occurrence and
the Medical Officer unable to certify the Cause
of death. In many instances during the course of
Medicolegal work we come across various
deaths where the o·nset was Unexpected in
individuals who were having history of disease
and in other situations death will be sudden in
individuals who were seemingly fit. In all this
cases the very sudden nature leads to suspicion
of foul play and hence police were informed
hence the case was booked under Medico legal
category to rule C'Ut any foul play and know the
Materials and Methods
All autopsies were performed in the
Department of Forensic Medicine between Jan
2000 to Dec. 2004. The period of study between
Jan 2000 to Dec 2002 was retrospective and the
period from Jan 2003 to Dec 2004 was
Prospective studies. All clinical data were
collected for admitted- case; circumstances
surrounding the death were analyzed as per the
police report. In the present study the cases
were chosen as per the definition of sudden
deaths occurring within i4hr from the onset of

20

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 5/2--
JPAFMA1 2008; 8(2). ISSN 0972-5687

signs and symptoms. Deaths from non medical Distribution of Medico Legal Postmortem
causes were excluded. Examinations during the period Jan 2000 to Dec
The total number of Autopsies of Sudden and 2004:
un~xpected deaths performed were 102 cases. Bums 178
All cases were from P.R.H. which were termed Drowning 56
medico legal.66 were treated 36 were Brought Hanging 68
in Dead to Hospital. It included deaths within all Fall from height 08
age groups. All cases with drug, poison, trauma, insecticide consumption , 286
decomposition have been excluded. sex, age, Snake bite 64
circumstances of death, causes of death Homicides 28
reported in 102 cases. Firearm injuries 02
Complete forensic autopsies were performed Infanticides 03
in every case with relevant histopathological Sudden &Natural Death 102
examinations in all cases. The tissue were Road Traffic Collision 381
preserved in 10% Forma! saline, thickness of 3- Total 1176
Smm was kept for fast and better fixation and
stained with Haematoxylin and Eosin. Table No. 2: Causes of Sudden Death
Toxicological analyses were carried out in all Causes < 35yrs >35 yrs
cases to rule out poisonings. All studies and Cardiovascular 09 59
.L\utopsy data revie'I'J \AJere performed \AJith strict Pulmonary 07 2i
confidentiality and in strict accordance with the Neu rologica I 01 01
university ethical considerations. . Hence on Others causes 01 03
Histopathology, gross examination, Hospital Total 18 84
details, Circumstantial and Police reports the
Cause of Death was inferred. Table No.3: Gender and age Distribution:
Age Group (Yrs.) Male Female
Obse!Vations 5-15 01
16-25 02 02
The mean age of the studied population was 26-35 07 02
35yrs. sudden and unexpected deaths 36-45 16 02
amounted to 8.67% of medico legal autopsies. 46-55 21 02
Male to female rations was 5.8:1. Maximum 56-65 32 06
incidence of sudden and unexpected deaths 66-75 07 02
was reported above 35 yrs of age, with peak
Total85 17
incidence between 45-65 years. Cardiac
pathology contributed 66.67% to major cause of Table No.4: Gender distribution of Causes:
sudden and unexpected deaths. Causes Jan 2000 to Jan 2004
Male Female
Table No. 1: Causes of Sudden Death in 102 Cardiovascular 60 08
cases
Pulmonary 21 07
Causes No Percentage Neurological 02
~ardiova5cular 68 66.67%
Miscellaneous 03 01
Pulmonary 28 27.45%
Neurological 02 1.96% Total Percentage 82.76% 17.24%
Others 04 2.94%

211 Page

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 JPAFMAI 2008; 8(2j. iSSN 0972-5687
3/ ~
Table No.5: death. Although sudden death is a relative
CARDIOVASCULAR CAUSES 68 concept, this concept is currently described as
Left Coronary artery thrombosis 41 unexpected death occurring within one hour of
Hypertrophic Cardiomyopathy 02 new symptoms 4 .1f the patient died
Rheumatic Heart Disease 06 instantaneously in presence of witness or died
Mitral Stenosis 04 while asleep, their death was classified as
Mitral Valve Proplase 01 Sudden. Adelson and Hoffman(1961) limited
Cardiac aneurysm 02 the time for two hours. But in the 1present study
Right Atria I Myxoma 01 all the Natural deaths occurring within 24 hours
(Myomalacia cordis)Myocardiallnfarction 04 from the onset of signs and symptoms were
Right Coronary Thrombosis 06 considered as sudden and unexpected deaths.
Left Circumflex 00 Despite this heterogeneity most of the
DilatedCardiomyopathy 01 series showed that the majority of cases of
sudden and unexpected deaths were secondary
Table No.6 to cardiovascular pathology (CVS), 5•6·7 and
involved mostly Coronary artery. Table no.02
PULMONARY CAUSES 28
shows various causes of death related to
Aspiration of Food materials I Acute 02 ·
Cardiovascular system. Table no.01 shows the
Pulmonary Edema
systems involved in sudden deaths. There is a
Pneumonia OS
wide variability being quoted as from 77.7% to
Puimonary Emboiism OS 8
90%, of all Sudden and Unexpected deaths,
COPD 11
The present study observations are in close to
Tuberculosis OS
the similar observations .. Deaths due to
Respiratory system comprised only 10-
Table No.7:
1S%,which are again similar to the present
NEUROLOGICAL CAUSES 02
study which constituted 17.24%,Table no.06
Epilepsy 01 showed various causes of death related to
Glio-blastoma multiforme 01 Repiratory system In the present study of the
102 cases of sudden and unexpected deaths
Table No.8: 66.67% (n=68) of the cases constituted CVS
Miscellaneous 04 Pathology of which 60.29% (n=41) were due to
Viral hepatitis 01 LAD [left anterior descending coronary artery]
Pancreatitis 02 involvement and the remaining cases were due
Alcoholic Liver disease 01 to other cardiac causes. Of the 102 cases
27.4S% (n-28) cases were secondary to
Discussion pulmonary pathology, this was similar to the
As the definition of sudden death observations made by Pentilla et al [10].
varies,, it is difficult task to compare one set of Hoon and Balasubramanian (11]
published data with another. Death from reported that LAD was the cause of death in
natural causes in which the interval between 89% of 'Brought in Dead' cases and 85% of
onset of signs and symptoms and death was not those who died within 2hrs of arriving at
more than 24 hours were regarded as sudden hospital as an Emergency, the present study is
deaths [1,2,3]. The longer the delay between also matching with it comprising 81.8% (n=41)
the onset of symptoms and the death the more of LAD involvement in Brought in Dead cases.
are the causes of death. It's by definition Table no.02 showed the relationship of Sudden
natural and it excludes all deaths due to poison, death according to age groups. The maximum
trauma. Various workers in this field have given incidence of Sudden Deaths were (n=74)
different definitions of sudden and unexpected reported in individuals above 3Syears of age

22
 3/~
JPAFMAT 2008; 8(2). ISSN 097~-5687

with peak incidence between the age group 45- Females 17.24%, which was similar to
65 years (n-51). The least affected age group observation made by Copeland [12).
was between 5-15 years (n-01). Males
constituted 82.76% (Table no.03 and 04) against

Table 9: Showing Causes in relation to age distribution.

Causes 5-1S 16-2S 26-35 36-45 46-5S 56-6S 66-7S Totai

I
yrs yrs yrs yrs yrs yrs yrs
Left Coronary artery Occlusion 02 14 21 04 41
Hypertrophic Cardiomyopathy 02 - - 02
Rheumatic Heart Disease OS 01 - 06
Mitral Stenosis - - 02 01 01 04
Mitral Valve Prolapse - - " 01 01
cardiac Aneurysm 01 01 02
Right A tria I Myxoma 01 01
Myocardiallnfarcation (Cardiac 02 01 01 04
Rupture)
Right Coronary occlusion - 02 03 01 06
Left Circumflex
Dilated Cardiomyopathy - 01 01
Aspiration Pneumonia 01 01 02
Pneumonia - 02 01 02 01 OS
Pulmonary Embolism 03 02 OS
COPD 01' 03 02 OS 11
Tuberculosis - 01 01 02 - OS
Alcholic Chirrosis - 01 01
Viral Hepatitis - 01 01
Pancreatitis 02 02
Glioma - 01 - 01
Epilepsy - 01 01

References 4; Torp.Pederssen C., Kober l., Elming H. and

1. Kuller l, Cooper M, and Parper
Epidemiology of Sudden death.
Arch .lntern.Med .129:714.1972.
2. Tunstaii-Pedoe H, Kuulasmaa K. Amouyel P.
et al. Myocardial infarction and Coronary
deaths in the World Health Organization
MONICA Project registration procedures,
event rates, and case-fatality rates in 38
populations from 21 countries in four
continents. Circulation 1994; 90:583-612.
3. Virmani R. Burke AP and Farb A. Sudden
cardiac death. Cardiovasc Pathol
2001;10:275-282.
Buschart H. Classification of Sudden and
Arryth mic death. Pacing Clin .Electro ph ysiol.
1997;20, 2545-52.
5. SarkiojaT. and Hirvoren J. Causes of Sudden
Unexpected deaths in young and middle
aged persons. Forensic Science ·
International, 24;247,1984.
6. Raymond JR, Van den Berg EK and Knapp
MJ. Non traumatic pre hospital Sudden
death in young adults.Arch.lntern.Med.
1988;148,303-8.
7. Anderson R E, Hill RB, Broudy DW, Key CR
and Pathak D. A population based autopsy
of Sudden, Unexpected deaths from Natural
causes am.:mg persons 5 to 39 yrs old

23JPage
JPJl.f'MAT 2008; 8(2).JSSN 0972-5687
during a 12 year period. Human Pathol.
1994 ;25,1332-40.
8. Scoti,T.M.:Coronary artery disease in
pathology,Vol.1,7thed.,Edited by W.A.D.
Anderson, John.M., Kissane-The C.Mosby
Co.;Saint Louise,1977.
9. Pentilla A. Sudden and Unexpected Natural
death of adult males. An analysis of 799
Forensic autopsies in 1976. Forensic.Sci.lnt.
1980; 16:249-59.
Jfs
10. Sheppard M. and Davies MJ. Practical
Cardiovascular pathology.(1st ed}London:
Arnold;1998 .
11. Hoon RS. and Balasubramania V. Coronary
Artery disease as a cause of Sudden death
in Indians. Indian Heart.J. 1971:23.134.
12. Copeland AR. The Pathology of Sudden
I
death in the Hypertensive. Med. Sci. law;
1987.
24
 DUSHYANT DAVE ~/I
( SENIOR ADVOCATE

6th February 2015

To,
Hon'ble The Chief Justice offndia
And
Companion Hon'ble Judges of the Collegium
of the Supreme Court of India

~) c._e.J)~ .

L~~~r ~~~
I write to you with deep anguish in view of the reports appearing in the Newspapers
today about the meeting of the Collegium to consider possible appointments to the
Supreme Court of India.

I must begin this letter by acknowledging that presently the Collegium commands
universal respec;t. The legal fraternity has high hopes ftom You.

I invite your kind attention to the judgment of the Constitutional Bench of this Hon'ble
Court in Supreme Court Advocate-on-Record Association v. Union of India, (1993) 4
SCC 441 which has empowered you to make appointments and transfers in the Higher
Judiciary. I would particularly like to invite your kind attention to a majority judgment
rendered by the Hon'ble Justice Mr. JS Verma which administers with the following
caution;

"0, it is excellent,
To have a giant strength;
But it is tyrannous,
To use it like a giant" (See Para 437)

The very foundation of the judgment and exercise of powers by Your Lordship is
expressed in the following words;

"It is well known that the appointment of the superior judges is from amongst
persons of mature age with known background and reputation in the legal profession ... It
is, therefore, time that all the Constitutional functionaries involved in the process of
appointment of superior judges should be fully alive to the serious implications of their

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 DUSHYANT DAVE ~~L
SENIOR ADVOCATE

Constitutional obligation and zealous in its discharge in order to ensure that the no
doubtful appointment can be made. This is not difficult to achieve." (See Para 431)

It is further required as a condition precedent as to who should be considered and

appointed to the Highest Judiciary in the fallowing clear words;

"The constitutional purpose to be served by these provisions is to select the best

from amongst those available for appointment as judges of the superior judiciaty, after
consultation with those functionaries who are best suited to make the selection. It is
obvious that only those persons should be consideredfit for appointment as judges of the
superior judicimy who combine the attributes essential for making an able, indepe11dent
and fearless judge. Several attributes together combine to constitute such a personality·.
Legal expertise, ability to handle cases, proper personal conduct and ethical behaviotll~
firmness and fearlessness are obvious essential attributes of a person suitable for
appointment as a superior judge. The initial appointment of judges in the High Courts is
made frorn the Bar and the subordinate judiciGJy. Appointment ::o the Supreme Cot1rt is
mainly from amongst High Court judges, and on occasion directly from the Bar. The arena
of perforn?ance of those :nen are the courts} it is, therefore, obvious that tlte Jna.)(if11LII11
opportunity for adjudging their ability and traits, is in the courts and, therefore, the
judges are best suited to assess their true worth and fitness for appointment as judges.
This is obviously the reason for introducing the requirement of consultation with the Chief
justice of India in the matter of appointment of all]udges, and with the Chiefjustice of the
High Court in the case of appointment of a judge in a High Court. Even the personal traits
of the members of the Bar and the judges are quite often fully known to the Chiefjustice of
India and the Chief justice of the High Court who get such information from various
sources. u (See Para 462)

Best selection from amongst those available is the ftmdamental requirement.·

Independence and Fearlessness are essential attributes.

However, legal expertise or the ability to write good judgments is not the sole criteria.
Proper personal conduct is of equal if not greater importance. Personal traits of the
Judges are equally relevant

Yet, it is being rumored that the Collegium is likely to consider the case of Chief Justice
Mr. Mohit S. Shah.

Sirs, presently there are many outstanding Judges available in various High Courts'
including Hon'ble Chief Justices with leg~l Ability, Fearlessness and impeccable
personal conduct Some of them left large and lucrative legal practices to become
Judges and have been waiting in the wings for being elevated. I need not name them
because they are well known to Your Lordships as also the entire Legal Community.

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.,..,....,. ....... ...

. ···""'' ,_. -~ . ~'. ··~
 DUSHYANT DAVE
SENIOR ADVOCATE
4/3
It is well known that Chief Justice Mr. Mohit S. Shah has been considered by the
Collegium on more than one occasion and rejected on account of, amongst other things,
serious and improper personal conduct and personal traits. His conduct was wholly
unbecoming of a Judge and affected both his "professional duties" as a Judge and
administrator (as a puny Judge, as a Collegium member and as the acting Chief Justice).
But most of all this lowered the image of the Judiciary of Gujarat to a great,extent. Thus,
Chief Justice Mr. Mohit S. Shah forfeited his right to be considered for Higher Judiciary
long ago on account of his own conduct.

I believe there was enough material against him on various counts when his case was
considered and rejected by the previous Collegiums. I would request that such material
be made public in larger good of the Judiciary and the Nation.

Reconsideration of the Chief Justice Mr. Mohit S. Shah case would not only be contrary
to the Constitutional Bench judgment, which binds you as well, but would be grossly
improper and will seriously impact the reputation and goodwill of the Hon'ble Supr~eme
rn111·t- nf
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There is one more disturbing fact that I must bring to Your kind notice. In CBI v.
Amitbhai Anil Chandra Shah, (2012) 10 SCC 545, this Hon'ble Court while granting bail
to Mr. Amit Shah in Sohrabuddin trial had while transferring cases from Gujarat to
Mumbai in Maharashtra observed as under;

"In another decision in Ravindra Poi Singh v. Santosh Kumar jaiswal and others,
this Court directed for transfer of the case outside State because some of the acwsed in a
case of fake encounter were policemen The case in hand has far stronger reasons for
being transferred outside the State. We, accordingly, direct for the transfer of Special Case
No.OS/2010 pending in the court of Additional Chief Metropolitan Magistrate, CBJ, Court
Room No.2, Mirzapu"' Ahmedabad titled CB! versus D.G. Vanzara & Others to the court of
CBI, Bombay. The Registrar General of the Gujarat High Court is directed to collect the
entire record of the case from the court of Additional Chief Metropolitan Magistrate, CBI,
Room No.2, Mirzapu"' Ahmedabad and to transmit it to the Registry of the Bombay High
Court ji-om where it would be sent to a CBI court as may be decided by the Administrative
Committee of the High Court. The Administrative Committee would assign the case to a·
court where the tria/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." (See Para 39)

Yet, the Hon'ble Bombay High Court, of which Justice Mr. Mohit S. Shah is the Chief _
Justice, did not follow this specific mandamus. This Hon'ble Court had observed in

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 DUSHYANT DAVE 4/Lr-
SENIOR ADVOCATE

Assistant Collector of Central Excise v. Dunlop India and Anr., (1985) 1 SCC 260 as
under;

'Jt is needless to add that in India under Act. 141 of t!Je Constitution the law
declared by the Supreme Court shall be binding on all courts within the territo1y of India
and under Art. 144 all authorities, civil and judicial in the territory of India shall act in aid
of the Supreme Court." (See Para 6)

As a result, the Learned Trial Judge was changed on one pretext or the other three or
four times without seeking leave of this Hon'ble Court. Ultimately, what happened is
well known. I am not on merits of a Judicial Order that may have been passed in favor of
Mr. Amit Shah, but on the act of commission or omission on the part of Chief Justice Mr.
Mohit S. Shah as Head of the Bombay High Court. Any reconsideration at this ste~ge of
his case would perhaps raise serious and justifiable doubts in the minds of right
thinking citizens. It is one thing for the political establishment to reward a Judge by
cffering him the Governorship but it is entirely different for the Collegium to do so. J
respectfully request that this ought to be avoided in large1: interests of the judiciary.

I may kindly invite your attention to the concluding mandate of the Constitutional
Bench which directs that;

"The process of appointment ofjudges to the Supreme Court and the High Courts is
an integrated 'participat01y consultative process' for selecting the best and most suitable
persons available for appointrnent; and all the constitutional functionaries must pe!form
this duty collectively with a view primarily to reach an agreed decision, sub-serving the
constitutional purpose, so that the occasion of prim my does not arise." (See Para 486)

Sirs, the future of the I-Ion'ble Supreme Court of India is in your hands.

Thanking you,

DushyantDave
Senior Advocate
~
President
Supreme Court Bar Association

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 DUSHYANT DAVE
SENIOR ADVOCATE

/·.
sjt

11 til February 2015

To,
Shri H.L. Dattu
Hon'ble the ChiefJustice of India
And
His companion Hon'ble Justices of the Collegium

Dear Sirs,

In furtherance to my letter dated 6th February 2015 I would like to invite your kind
attention to the foilowing events supported by judicial record which do raise
extremely discomforting questions about the judicial conduct of Chief Justice Mohit
Shah. These have been brought to my notice now but I would sincerely request you
to consider the same forthwith before any irreparable damage is caused to the
Highest Court.

A Writ Petition being Special Civil Application No.24233/2007 was filed in

the Gujarat High Court by Essar Oil Ltd. and Ors. vs. State of Gujarat and Ors. seeking
benefit of sales tax and other exemptions amounting to approximately ten thousand
crores in respect of Essar's Oil Refinery.

The Bench presided by Mr. Jus. Mohit Shah had issued notice in the said
matter on 20.9.2007. On 21.1.2008 the same Bench issued "Rule" and made it
returnable on 19.2.2008 that is for final hearing.

It appears that in the meanwhile on 13.2.2008 that is before 19.2.2008, the

roster for allocation of matters changed and the subject matter of the above Writ
Petition was to be heard and decided by the Bench presided by then Chief Justice
Mr. Y.R.Meena and Mr. Jus. ].C.Upadhaya.

The Writ Petition would have come before the new Bench in ordinary course
on 19.2.2008, the date fixed for final hearing. However on 18.2.2008 it was notified
that the Bench presided by Jus. Meena would not be available and therefore
naturally all the matters including the above Writ Petition would not be taken up.

Taking advantage of the absence of the Chief Justice and to take the Writ
Petition back to the Court of Mr. Jus. Mohit Shah, Civil Application No.1828/2008
was filed on 18.2.2008 by Essar Oil Ltd. The said application was mentioned (since it
was not listed) before the Bench presided by Mr. Jus. Mohit Shah on 19.2.2008.

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 DUSHYANT DAVE
SENIOR ADVOCATE

-r/1-
(

However the main V\!rit Petition SCA no. 24·233/2007 was not on board before that
Bench as it was not even notified.

What happened on that day reflects sorry state of affairs in the judkial system
and reflects directly on the conduct of Mr. Jus. Mohit Shah which is described
succinctly in an Affidavit filed by Mr. Uday Hudlikar, Joint General Manger (Legal) of
Essar Oil Ltd. dated 29.2.2008 filed in the said proceedings. (copy enclosed and
paragraph 3, 4, 5, 6 & 8 be kindly perused).

This Affidavit was necessitated because apparently the Writ Petition was
coming up for final hearing before the Bench presided by Chief Justice Meena on
29.2.2008 and therefore it was necessaryto prevent any fresh hearing.

Apparently to overcome the difficulty then realized to the effect that the \Nrit
Petition was disposed on 19.2.2008 even though it was not listed and could not be
listed since it was already notified before another Court, Bench presided by Mr. jus.
Mohit Shah, passed an Order dated 28.2.2008 disposing in Civil Application No.
1828/2008 and directed that the main Writ Petition be placed for final hearing
before appropriate Bench. This Order appears to be an afterthought and was to
overcome the embarrassment on account of the fact that though main Writ Petition
was not fixed on 19.2.2008, it was purportedly heard and decided by dictating a
judgment in open Court.

On 29.2.2008 the Bench preside by Chief Justice Meena passed an Order in

view of the Affidavit of Mr. Hudlikar stating that Writ Petition was indeed disposed
off on 19.2.2008, which was also the stand of the Ld. Advocate of Essar, inter-alia,
observing,

"But there is no such judgment dated 19.2.2008 on the file. On the contrary, a
copy of the oral Order dated 28.2.2008 passed on the Civil Application No.
1828/2008 in SCA No. 24233/2007 is found on record .......
It appears from the record that the main matter i.e. Special Civil
Application No. 24233/2007 was not listed for hearing on19.2.2008."
The Court therefore directed that to reconcile the controversy on
account of inconsistency of facts pointed out by the Ld. Adv of Essar Oil the
Court would like to see what was the true position and therefore listed the
matter on 12.3.2008."

On 12.3.2008 the matter was adjourned and came up again on 2.4.2008

before the Bench of Chief Justice Meena who after recording all these events sent the
matter back to the CourtofJus. Mohit Shah by directing as under:

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 DUSHYANT DAVE
SENiOR ADVOCATE

s/3
"Ld. Sr. Adv. Shri Nanavati submits that the Order which was dictated in open
Court on disposal of the petition, should be given effect and petition should not be
heard a fresh again as the petition was already disposed on 19.2.2008.
Whether the petition was disposed of finally on 19.2.2008 or not, that
concerned Bench consisting of Hon'ble Mr. Jus. M.S. Shah and Hon'ble Ravi R
Tripathi knows it better. Therefore, to avoid further controversy, we deem it proper
that the matter be placed the same Bench on 4.4-.2008 to pass appropriate Or-ders
after hearing both the parties.
List it on 4.4.2008."

On 4..!y2008 was the matter was adjourned and ultimately by a judgment and
Order dated 22.4.2008 the Writ Petition was allowed by the Division Bench
presided by Mr. Jus. Mohit Shah and directed that Essar Oil ltd. be given the benefit
of tax exemptions.

This judgment was carried in appeal to the Hon'ble Supreme Court of lnd ia by
State of Gujarat & Ors. inCA No. 599/2012 which was decided on January 17th,2012
(2013 3 SCC 522), allowing the appeal and the judgment of Gujarat High Court was
set aside.

The serious questions that arise on account of above disturbing events are:

(1) Why was Essar Oil Ltd. so keen to have its Writ Petition heard by the
Bench presided by Mr. Jus. Mohit Shah only as evidenced by its attempt
to take the matter to that Court by filing a CA No.1828/2008 which was
mentioned on 19.2.2008, although the Writ Petition according to
roaster was to be heard by the Bench presided by Chief Justice Meena
with effect h·om 13.2.2008.
(2) What actually happed on 19.2.2008 before the Court of Court presided
by Mohit Shah is not only intriguing but shocking since on the one hand
High Court record do not show any judgment and Order disposing off
the Writ Petition while Essar filed an Affidavit on 28.2.2008 in the Wrtt
Petition categorically stating that Writ Petition was heard and disposed
of by a judgment delivered in open Court on 19.2.2008, which fact was
repeated by Essar's Senior Advocate before the Court on 29.2.2008 and
2.4.2008.
(3) Clearly the Order purportedly passed on 28.2.2008 in CA No.
1828/2008 ,was an afterthought because as claimed in the Affidavit of
Essar's Legal Manager judgment was not only pronounced but in fact
on the same day was intimated by Essar to its Directors and Financial
Institutions and was duly published in local newspapers (see para 6 of

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 DUSHYANT DAVE
SENIOR ADVOCATE

iTt1____
his Affidavit). Further according to him certified copy of the said
judgment dated 19/2/2008 was already applied for on 25.2.2008".
(4) If \Nrit Petition 24233/2007 was itself not listed on 19.2.2008 and
could not be listed on account of change of roaster before Bench
presided by Mr. Jus. Mohit Shah, how was .it heard and disposed off?
(5) How was then the High Court record fabricated and or tempered with
to show that no judgment was delivered on 19.2.2008 and instead the
civil application no.1828/2008 was shown to have been disposed off
only and that to by Order dated 28.2.2008?
(6) Why is it that Chief Justice Meena did not take any action on the
administrative side about the episode showing serious lapses by the
Registry?

I therefore request you in view of this material to reconsider and recall, if the
Collegium has indeed taken any decision to recommend the name of Chief Justice
Mr. Mohit Shah for being elevated to the Supreme Court of India in the interests of
the entire Judiciary and the dignity of the Supreme Court of India.

~~ )

Dushyant Dave
Senior Advocate

Enclosed:
(1) Order of Gujarat High Court dated 20.9.2007.
(2)0rder ofGujarat High Court dated 21.1.2008.
(3)Affidavit of Uday Hudlikar, GM of Essar
(4) Order of Gujarat High Court dated 28.2.2008 inCA 1828/2008
(S)Order ofGujarat High Court dated 29.2.200
(6)
(7).0008
(8) Order of Gujarat High Court dated 2.4.2008
(9)Judgment and Order of the Gujarat High Court dated 22.4.2008

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 (;I J
TYPED COPY
"Recieved at 11 lus on 24.1 1.17 Sd/- 52
Say
Upon request of Shri Sanjay Barve, Commissioner, SID, Mumbai .&., as

Hon'ble High Court of Mumbai granted permission to give say, I am stating the

fact known to me regarding Judge Shri Brijgopal Harikishan Loya

Myself Roopesh R. Rathi Adhoc District Judge, Baramati, on dated

1/12/2014 was working as 5th Jt Civil Judge Senior division at Nagpur. On that

day at about 4.00 am Judge Shri V.C. Barde phoned me on mobile and asked for

my help by stating that Judge Loya is not felling well & is at Ravi bhavan, so we

should help him. Hearing the same & in order to help, being local judge, I was

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immediately went to Ravi Bhavan.

At Ravi bhavan Judge Shri Modak and Shri Shrikant Kulkarni were also

present. At that time Judge Loya was attending natures cal. There after he came

down & told that he is having heart burn & having ache in his heart and requested

for help. Thereafter we all present there went in the car of Mr. Barde. At that time

some of them also called for help of Judge Waikar. He also followed us. Then

we went to the nearest hospital is Ravinagar i.e. Dr. Dande hospital. That hospital

was on 1st floor and so we all climbed stairs and went there. One assistant doctor
' I • > ' o • ' " ~ ' o I ' o

was present there. Mr. Loya complained about severe chest pain. His face was

sweating & he was continually telling about more chest pain and heart bum. At

that time the doctor tried to do his ECG but the nodes of ECG machine were

broken. Doctor ·.ried and wasted some time but machine was not working. I.. ... "
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IN THE COURT OF ~ESSIONS FOR GREATER BOMBAY

MISC.APPLICATION (EXHIBIT-103)
IN
SESSION CASE N0.177/2013 @ 178/2013

Abhay Chudasama,
At present lodged and
detained at Nadiad jail, .• Applicant.
Gujarat (Accused no.l5)
"lT I~
v 1 o.

The C.B.I. . . Respondent

(Original Complainant)

Mr. Rizwan Merchant, advocate for accused no.l5.

Mr. Vinaykumar Singh, Spl.P.P. for C.B.I.

CORAM:H.H.The Special Judge

Shri.J.T.UTPAT

DATE ; 13th AUGUST 2013.

ORDER

The accused no .15, Abhay Chudasama, has

filed this application for giving directions to

the prosecution for filing in the Court all the

CDRs of 9825049311 received from Vodafone by its

letter dated 11th July 2012 and for further

directions of giving copies of all CDRs to him.

 2 7/r/·L.
2 Brief facts mentioned in the application I
are that the prosecution has deliberately and

willfully withheld the above material from the

accused no.15 and this court, knowing full well

that the entire case of the prosecution is likely

to fall to the ground as against the accused

no.15. It is further contended that through

forwarding letter received from Vodafone, the

prosecution has received CDRs of two cell phone

numbers i.e. 9825049145 and 9825049311. The xerox

copies of the CDRs of cell phone number

98250~9145 h~ve been shown recorded at item no.31

of the list of the documents and 'Annexure-A' to

record filed in the Court and the copies of the

same furnished to the accused. However, for

obvious reasons which reflect the ulterior motive

of the prosecution, CDRs of the cell phone number

9825049311 which was a number allotted to SP,

Valsad (i.e. the present applicant/accused} for

official use. The copies of CDRs received from

Vodafone by the same forwarding letter have not

 3
7/T/3
either been recorded in the list of documents nor

the copies of the same have been furnished to the

applicant/accused~ nor filed in the cou~t.

3 It is further contended that the ground

urged by the accused no.l5 in the bail

application it is required to be argued before

this court on the very same material. There is

no answer that the prosecution has to this ground

urged by the accused no.l5 in- his bail

application, since CDRs of the cell phone number

9825049311 support the said ground urged by the

accused no.15. This is precisely the reason why

the prosecution has chosen to deliberately

withhold the said material from the accused and

the court.

4 It is further contended that tbougll the

above material is available with the prosecu~ion

from July 2012 onwards, it was not even placed

before the Hon'ble High Court of Gujar~t during

 4 7 f-L/4

the consideration of the bail application of the

accused no.15. The said material which was then

withheld has now been shown filed and submitted

I
in the court. Consequently, this becomes fresh

and new circumstance which is required to be

considered by the court. As such all the grounds

which the accused no.15 has urged before this

court in the present bail application were not

considered by the Gujarat High Court in the light

of this fresh material. Consequently, according

to the accused no .15 # the details of the above

CDRs of cell phone number 9825049311 are required

for such appreciation and consideration of the

bail application. Hence, this application.

5 The prosecution (CBI) has opposed the

application by filing say Exh.103 -A. According

to the prosecution, it is not relying upon the

CDRs of the above cell phone number which is

stated at D-30 of the charge-sheet in the letter

dated 11/07/2012 of Nodal Officer, Vodafone West

 5 7/-L/ s
Ltd. of Shri Tejus Patel. The prosecution has not

cited the details of the CDRs of the above cell

phone which the accused wants prosecution to

provide to him. It is further contended that

,,
apart from call records, there is sufficient

material on record to prove the culpability of

the present accused in the crime in question.

Therefore, the prosecution has prayed to reject

the application.

6 Heard the learned advocate Mr.Rizwan

Merchant for accused no.15 and learned P.P.

Mr.Vinay Kumar Singh for CBI.

7 The learned advocate Mr. Rizwan Merchant

for accused no.15 has relied on certain case laws

i.e. (1) Lal Chand and others V/s . . State of

Haryana CCDJ 1983 SC 217) (2) Ramesh Wamanrao

Babhulkar V/s. State of Maharashtra (Criminal

Application NQ.680 of 1994-equivalent Citation(s}

19 9 6 ( 1) BCR 3 9 8 , 19 9 5 ( 2 l MAH. L . J. 7 2 4 ) ( 3 ) Dhananj ay

----:>-,

6
7 Jr( b
Kumar Singh V/s. State of Rajasthan (2006 Cr.LJ

3873) (4) Angadh Rohidas Kadam & Others V/s. The

State of Maharashtra & Another (CDJ 2007 BHC 100)

I

(5) Kamal Ahmed Mohammed Vakil Ansari & Others

V/s. State of Maharashtra (Criminal Appeal No.973

of 2012), (CDJ 2012 BHC 2503). The learned

advocate Mr. Rizwan Merchant reling on the

aforesaid rulings argued various legal aspects in

respect of rights of the accused to get the

copies of the statements of the witnesses as well

as the documents referred to in the charge-sheet

etc.

8 The learned advocate Mr. Rizwan Merchant

for the accused no.lS submitted that despite the

legal provisions, despite the case law, there is

still a school of thought which postulates that

the police and the prosecution can withhold

information botn from the accused and the Court.

According to this thiJ;Lking, in case the

prosecution does not wish to rely on the

 7 7/I/7
statements of certain witness, or on some piece

of evidence, then it is not to disclose the same,

evan ......-F
~
the evidence is in the favour of the
I
accused. Mr. Rizwan Merchant further argued that

such an interpretation would be both against the

Principles of Natural Justice and against the

concept of fair play. Mr. Rizwan Merchant further

submitted that in every judicial proceeding the

parties are expected to come with clean hands.

Mr.Rizwan Merchant further submitted that by

withholding the evidence without any legal

justification, the prosecution would be hiding

vital facts from the Court, the prosecution is

expected to reveal the whole truth and nothing.

Mr. Rizwan Merchant further submitted that it is

the duty of the Court to discover the truth of

the case.

9 I have considered the above rulings very

carefully. No one can dispute the ratio laid

down in the above rulings . According to , Mr.

-··-----·--- ··-~--··-
 8 '1-lx-
/ _LI-

Rizwan Merchant, the accused has preferred the

bail application on the ground that there is

change in the circumstances. Mr. Rizwan Merchant

further submitted that when the Hon'ble Gujarat

High Court considered the bail application of the

accused no.lS, the vital information in the form

of CDRs of the cell phone of the accused no .15

was not before it. Therefore, in the opinion of

Mr. Rizwan Merchant, the Call Details Record of

the cell phone of the accused no .15 would show

that at the relevant time he had not come to

Ahmedabad to interrogate Sohrabuddin and would

further show that at the relevant time he was at

Val sad. Mr. Ri zwan

r
Merchant further submit ted

that though the prosecution has referred the CDRs

of the cell phone of the accused no.lS at serial

no.30 it has not filed the same on the record.

On the contrary, the prosecution has filed the

CDRs of other phone at serial no. 31 with the

chrtrge-sheet (Sessions Case No.577 of 2013).

According to Mr. Rizwan Merchant, the CD:Rs in

 9
7 /rf9

respect of the cell phone number of the accused

no.15 are' important before commencing the

arga~ents of the bail application.

10 It appears that only contention o£ the

prosecution (CBI) that since it is not relying on

CDRs of the cell phone of the accused no.15, it

is not necessary to produce the same before the

Court. However, in view of the rulings referred

to above, above stand of the prosecution is not

at all tenable. Therefore, I find that the

accused no.15 is entitled for the copies of the

CDRs in respect of his cell phone number

9825049311. Therefore, I proceed to pass the

following order:

ORDER

The Misc. Application {Exh.103) is

allowed.

2 The prosecution is hereby directed to

provide the accused no. 15 the copies of CDRs in

respect of his cell phone no. 9825049311.

I
--,

I J
10 7/'/fO
3 The prosecution is also directed to file

in the court the certified copies of the CDRs in

respect of cell phone of the accused no.l5 i.e.

9825049311.

The Misc. Application (Exh.l03) stands

disposed off accordingly.

(J.T. UTPAT)
Special Judge for CBI
Date:13/08/2013 Greater Mumbai.

Dictated on 13/08/2013
Transcribed on 13-14/08/2013
Signed by HHJ on 14/08/2013
 7/ J[ /1
IN THE COURT OF SESSIONS FOR GREATER BOMBAY

BAIL APPLICATION (EXHIBIT-204)

:N
SESSION CASE N0.177/2013@ 178/2013
@ 577/2013 and @ 312/2014

Dahyaji Gobarji Vanzara

RIO Gurukrupa Apartment,
Plot No.20, Sector-19,
Gandhinagar, Gujarat. .. Applicant.
(Accused no.1)
V/s.

The Central Bureau of Investigation

Bombay. .. Complainant.
Respondent

Mr. H.H. Fonda, Senior Counsel for the accused no.l.

Mr. B.P. Raju, Spl.P.P. for C.B.I.

CORAM:H.H.The Special Judge

Shri.J.T.UTPAT

DATE : 9th MAY. 2014.

ORAL ORDER

The accused no.1, D.G. Vanjara, has filed this

application under section 439 of Cr.P.C. for enlarging him on

bail.
 I I
2 7(JI/l--
2 Briefly stated the facts mentioned in the application

are that This is first bail application moved by the accused

no.l after filing of the charge-sheet by the CBI. \fhe accused

no.l had preferred Criminal Bail Application before the City

Sessions Court at Ahmedabad. However the said application

was rejected. Thereafter, the accused no.l had preferred

Criminal Bail Application No.13775/2007 before the Hon'ble

High Court of Gujarat and the same was also rejected on

25/09/2008. Thereafter, the accused no.l had not preferred

any other bail application before any. competent court of law.

It is further averred that the accused no.l is in jail since his

arrest i.e. 24/04/2007.

3 It transpires from the charge-sheet that the case

relates to conspiracy with regard to Sohrabuddin fake

encounter' by the Gujarat Police, Rajasthan Police and Andhra

Pradesh Police. It is stated in brief of the case in the charge-

sheet itself that the investigation revealed that during the year

-~----------···------·----·- ··--·----··--· ----··--

 7/Tf h
/ -
·1'

2004, the criminal gang of Sohrabuddin had become very

active in the areas of Rajasthan, Nathdwara. Suker and Udaipur

districts of Rajasthan. The said areas are known for Udaipur

districts of Rajastha. ·The said areas are known for marble

mining and trade. As per the allegations in the charge-sheet,

Sohrabuddin gang was one group of gang and one Hamid Lala

was very active in that area and protection was provided to the

marble traders in return for money. Therefore, Sohrabuddin

gang wanted to take all the share of protection money by

getting rid of Hamid Lala gang. Sohrabuddin gang realized that

their image had taken a beating and they have to posture

actively and in a more aggressive and violent Il1anner to regain

their lost image and create fear among the marble traders.

This background in which the alleged conspiracy is said to

have taken place between the Gujarat and Rajasthan police to ·

eliminate Sohrabuddin, which led to filing of the said case.

The present ac<;used is the Deputy Inspector General of Police

of the State of Gujarat arraigned for the alleged conspiracy

 7(F /t
4

which is not borne out from any material and evidence. It is no

less than a figment of imagination and fiction story created and

concocted by the respondent/CBI for ultimate political motive.

4 It is further alleged that initially on the basis of a

complaint lodged by one Abdul Rehman, an accused in the

same case, who was then the Police Inspector, Pratapnagar

Police Station, District Udaipur of Rajasthan State and a

member of Special Investigating party from Udaipur set up to

investigate various offences registered against Sohrabuddin,

since deceased. The Anti Terrorist Squad (ATS) of Gujarat

Polcie registered Crime No.5 of 2005 on 26/11/2005. In the

said crime, Sohrabuddin was the accused of the offence

punishable under sections 120-B, 121, 121-A, 122, 123, 307,

186 and 224 of I.P.C. and sections 25(i)(b) and section 27 of

the Arms Act and section 135(1) of the Bombay Police Act. It

was fUrther stated in the said F.I.R. that Sohrabuddin was

acting at the behest of lSI to spread terror and distrub unity

-------~ ~-- ~n~~"n-~-~-

 5 7/-LL I~
and integrity of the country and later had entered into

conspiracy by possessing arms and ammunition in order to kill

big leaders of the State of Gujarat. On secret1 information

received by the Investigating Team to the effect that said

Sohrabuddin was visiting Ahmedabad and would pass near

Vishala Circle, Ahmedabad, the investigating team was on duty

near Vishala Circle and at that time Sohrabuddin came on a

motorcycle and when he was asked to surrender, he fired from

the revolver and attempted to kill them and in return PI Abdul

Rehman (accused no.7), PSI Himanshu Singh (accused no.8)

and PI Dabhi (accused no.5) fired rounds from their service

pistols on the body of said Sohrabuddin, who was then taken to

Civil Hospital, Ahmedabad where he was declared dead. As

per the said report of Abdul Rehman (accused no.7), at the

relevant time, near Vishala Circle, the following police officers,

A.T.S. And others persons were present namely N.H. Dabhi, PI

(accused no.5), R.B. Chaubey, PSI (accused no.6), Rehman

Abdul, PI/SHO _(accused no.7), Himanshu Singh Rajwant,

 G 7/JS ( (.
PI/SHO (accused no.8), Shyam Singh Charan (accused no.9),

Ajay Parmar, police constable (accused no.lO) and Santram

Sharma, Polcie Constable (accused no.ll). This case was

investigated by M.L. Parmar (accused no.4) and on com:pletion

of investigation, a final report to approve abated summar_y for

the deceased and 'A' summary for two others namely

Sharifkhan and Rasulkhan was filed. The complaint recorded in

Gujarati script.

5 The applicant/accused no.l has further given details

m his application as to how brother of the deceased

Sohrabuddin namely Rubabuddin Shaikh addressed a letter to

the Hon'ble Chief Justice of India about killing of his brother

Sohrabuddin in fake encounter, as to how he filed Writ Petition

(Criminal) No.6/2007 before the Hon'ble Supreme Court, as to

how the one Narmada mother of the deceased Tulsiram

Prajapati filed Criminal Writ Petition No.115/2007, as to how

the CBI carried out investig~tion in respect of fake encounter

 7 7(a:}7
of Sohrabuddin Shaikh, Tulsiram Prajapati and disappearance

of Kausarbi the wife of Sohrabuddin. The accused no .1 has

also given further details as to how the accused no.l6 filed

Criminal Writ Petition No.149/2012 before the Hon'ble Apex

Court and as to how the Hon'ble Supreme Court quashed the

FIR lodged by the CBI in Tulsiram Prajapati fake encounter and

as to how Hon'ble Supreme Court held charge-sheet filed in

that case to be the supplementary charge-sheet in the case i.e.

Sohrabuddin case. These facts are not disputed at all.

6 It is further alleged that the supplementary charge-

sheet with regard to Tulsiram Prajapati in fake encounter case

is not received by this Court. The record of the said case is

lying with the Additional Chief Judicial Magistrate and Special

CBI Court at Ahmedabad · (Rural)bearing Special Case

N0.4/2012. Thereafter, the CBI carried out further

investigation and has filed one more supplementary charge-

sheet before the Hon 'ble Additional Chief Metropolitan

 ··• ·,-,, ''' •.("'" ~·-··-~~ ................. -····· ·-·· .......... .:a.-.~.-;a.~.;.;..u.......~~a-.-·.······ ···:.. . _,_ J.o:...:.•.• ·.-.

7/E/K
8

Magistrate Court at Mumbai against Gulabchand Kataria,. Vimal

Patani and two police officers (accused nos.20 to 23). They

are stated to be key conspirators in the said offence.

However, they have been enlarged on Anticipatory Bail by this

Court. Further-more, the accused no.l6 Am1t Shah is also the

pnme and key conspirator and kin-pin in the. offence.

However, he has been released on bail by the Hon'ble Gujarat

High Court.

7 According to the accused no.l, the charge-sheet

reveals that the owner of the Arham Farm named Rajendra Jain

alias Jirawal son of Laxmandas Jirawala (accused no.19) is also

eplarged on regular bail by the Hon'ble Gujarat High Court in

Criminal Misc. Application No.14395/2010. Apart from these,

the accused persons Ajay Patel, Yashpal Chudasma (Accused

nos.l 7 and 18) have also been enlarged on bail. So also N .K.

Amin, Dy. S.P. '(accused no.12) has been enlarged on regular

bail by the Hon'ble Bombay High Court. The accused no.13

 9
7/If(9
M.V. Chauhan, PSI has been enlarged on bail by the Hon'ble

Supreme Court of India solely on the ground that he remained

in jail for five years and three months. Therefore, according

to the accused no.l, on the basis of the principle of parity, he

is entitled to be enlarged on regular bail.

8 According to the accused no.l, he is innocent, and

has no involvement in the present crime. He has been framed

in this case by the police to gain political mileages. The

Hon'ble Gujarat High Court while deciding Criminal M.A.

No.l3775/2007 which was rejected on 25/09/2008, wrongly

presumed the presence of the present accused at the time of

alleged killing of Sohrabuddin on the basis of the complaint

lodged by the accused no. 7 Abdul Rehman. The accused no.l

has not approached the Hon'ble High Court for correction only

because the case has been transferred to this Court by the

order of the Hn'ble Apex Court. The investigating team of

Gujarat or CBI have chiefly relied upon the statements of

 10
7{Ir/fu
Nathubha Pravinsinh Jadeja (Driver), Bhailalbhai Kodarbhai

Rathod (Driver), Vijaybhai Arjunbhai Rathod (P.L) and

Ajaykumar Bhagwandas Parmar. However, Nathubha Jadeja

has retracted his statement on very next day after the

investigating agency recorded his statement by filing

declaration in his handwriting before the Chief Judicial

Magistrate, Ahmedabad. So also Vijaybhai Arjunbhai Rathod

(accused no.l4) has also retracted his statement. Vijaybhai

Rathod is the accused in the case filed by CBI, CBI has

suppressed this fact. On these and other counts the accused

no.l has prayed for bail.

9 The CBI has opposed the application vehemently by

filing say Exh.204-A. The CBI has denied each and every

allegation of the facts made against it. The CBI has denied

that the accused no.l is entitled for the bail on the ground of

parity. It is the contention of the CBI that during the course of

investigation . sufficient and cogent evidence, oral and

 11
7/II /u
documentary were collected to prove the active role of the

accused including the present accused in hatching conspiracy.

for abduction of Sohrabuddin and his wife Kausarbi and

thereafter killed Soqrabuddin in stage managed encounter and

subsequently eliminated his wife Kasurabi and Tulsiram

Prajapati. It is further contended that the role of the accused

persons mentioned in para 3.11 are entirely different from the

role of the present accused. Therefore, grant of bail to the

accused persons cited in para 3.11 should not be considered as

a ground and the present application for bail should be decided

on merit. With respect to the avements made in para 3.12 of

the present bail application that the accused persons namely,

Rajendra Jain @ Jirawala, Ajay Patel, Yashpal Chudasama and

Balasubramanian and G. Srinivas Rao were never arrested

during the course of investigation and they were granted

anticipatory bail after filing of the charge-sheet. The accused

no.l2 N.K. Amin was granted bail by the Hon'ble High Court on

medical grounds and the said order has been challenged before

----··-·--------·· ---·- ---· ·-·--··-

 12 7 )]1: /r~
the Hon'ble Supreme Court of India. The role of the accused

no.l3 N.V. Chauhan was distinct and separate from the role of

the accused no.l. It is further contended that sufficient

evidence has been collected during the investigation which

established that the encounter of Sohrabuddin, elimination of

his wife Kauserbi and subsequent fake encounter of Tulsi

Prajapati was the result of active conspiracy hatched amongst

accused no.l D.G. Vanzara and other accused persons. During

the relevant period the accused no.l was working as Dy.

Inspector General of Police, Anti Terrorist Squad, Ahmedabad

and has played a major role in the commission of the offence.

He is one of the main conspirators for elimination of

Sohrabuddin, Kausarbi arid Tulsi Prajapati.

10 It is further contended that there is evidence, oral

and documentary, which proves the role of the accused no.l

D.G. Vanzara in Tulsiram Prajapati case. Investigation

revealed that during the police remand in the Hamid Lal

 _._, ---·--. -~~~-~-~--~~----··~-·-

13
7{Ir/n
murder case of PS-Hathipole, Udaipur, Tulsiram Prajapati was

interrogated personally by the accused no.l D.G. Vanzara and

others. At that time, Tulsiram Prajapati sought to 'know from '

them the reasons for killing Sohrabuddin in a fake encounter

contrary to their earlier assurances. Upon this, the accused

n.l D.G. Vanzara threatened Tulsiram Prajapati to remain

silent about this or else he would also meet the same fate as

that of Sohrabuddin and also told him that if he remained silent,

they would bear his legal expenses and other expenses in jail.

On 25/12/2006, in furtherance of the criminal conspiracy, the

accused no.l D.G. Vanazara, the then DIG, Border Range in

order to engage Aashish Pandya (accused no. 7 in Tulsiram

Prajapati case), the then Sub-Inspector of ·Police, Palanpur in

the conspiracy, directed police Sub-Inspector K.R. Jadeja and

police constable Meghjibhai Maheshwari to go to village

Meghpar
.. .· .
,_ _.
of Aashish Pandya and inform his family members to
~

contact him immediately, Aashish Pan,dya , -the accused in

Tulsiram Prajapati encpunter case,· was called back from his

(\

14 7/p:-/)9
leave by the accused no.l for participating in the criminal

conspiracy as aforesaid and taking it towards its culmination

point by murdering. Tulsiram Prajapati.

11 It is further contended that from statements of V.A.

Rathod and Nathubhai Jadeja, it is very clear that the dead

body of Kauserbi was disposed off near Ilol village. The

arrangements for the disposal of the dead body of Kauserbi

were made at the behest of the accused no.l. The funeral

pyre of Kauserbi was burnt by the accused no.l and the

remains including ash and bones were collected in one gunny

bag by the accused no.6 B.R. Chouby (accused no.6) and N.V.

Chauhan (accused no.13). The accused no.l D.G. Vanzara

instructed them to go to Bharuch and dispose off the said

gunny bag in the Narmada River. Thus, according to the CBI,

the involvement and complicity of the accused no.l in the

present case is duly established by the oral evidence of

witnesses i.e. Raman Patel, Dashrath Patel, Azam Khan, V.A.

 15 7/JI ;,J
Rathod, Nathubha Jadeja, Bhailal Rathod, Ajay Bhagwandas

Parmar etc.

12 It is further contended that the accused no. 1 D.G.

Vanzara and Amit Shah (accused no.16) directed Patel

Brothers to give a statement against Sohrabuddin and others

failing which the Patel Brothers would face dire consequences.

Patel Brothers were made as accused at a subsequent stage

when Patel Brothers refused to give a statement as directed by

the accused no.l D.G. Vanzara and the accused no.16 Arnit

Shah wherein they wanted to implicate Sohrabuddin in a

sensational case which could justify elimination of Sohrabuddin

at a later stage. Further, in the early part of November 200p,

deceased Tulsiram Prajapati was contacted by the accused

no.15 Abhay Chudasama, he was brought to Ahmedabad where

he was produced before the accused no.l D.G. Vanzara. They

'

asked Tulsiram Prajapati to make Sohrabuddin available before

them as there was a lot of political pressure. Tulsiram

 7/Ir /t {;
/' . '

16

Prajapati was assured that sohrabuddin would be put in jail so

as to keep him away from glare for 3-4 months. They further

assured that no physical harm would be done to Sohrabuddin.

Having got the assurance from he accused no.l D.G. Vanzara,

Tulsiram Prajapati helped accused no.15 Abhay Chudasama in

tracking down Sohrabuddin. Thus, according to the CBI there

is sufficient material against the accused no.l showing his

involvement in killing three persons i.e. Sohrabuddin, his wife

and Tulsiram Prajapati. Further, if the accused no.l is

released on bail, he would tamper with the evidence and may

threaten the witness who may not depose the truth before the

court which will cause serious prejudice to the case of the

prosecution. On these and other counts the CBI has prayed to

reject the application.

13 I heard the learned Senior Counsel for the accused

no.l Mr. H.H. Fonda and the learned Spl.P.P. Mr. P.P. Raju for

CBI.
 17 7{Jr//7
14 The learned Senior Counsel Mr. H.H. Panda

submitted that the accused no.1 is claiming bail on the ground

of the parity. Mr. Panda further submitted that tR.e accused

no.2 and 6 have been released on bail by the Hon'ble Supreme

Court by the judgment passed in Criminal Bail Application

No.698/2014 and 699/2014. Mr. Ponda further submitted that

the Hon'ble Supreme Court considered jail custody of 7 years

of the accused nos.2 and 6 Mr. Panda further submitted that

the accused no.1 was arrested on 24/04/2007. The accused

no. 2 Pandiyan was also arrested on the very day. Mr. Pond a

further submitted, relying upon the statement of the accused

no.14 V.A. Rathod that the role of the accused no.6 Chaubey is

more serious than that of the role of the accused no.l. Mr.

Panda further submitted that charge against the accused nos.l,

2 and 6 is the same. Mr. Panda further submitted that the

ac~used no.1 also is in jail for last seven years. According to

Mr. Fonda, there is no likelihood of the case being tried in near

future. Therefor~. a;ccording to Mr. Panda, the accused no.1 is

 18 7/JT/fR
also entitled for bail on the ground of parity, lapse of seven

years in jail and no likelihood of the case being tried in near

future.

15 Mr. Fonda further submitted that the accused no.2

Pandiyan got bail on 8th attempt. Similarly the accused no.4

Parmar got bail on 5th attempt. Mr. Fonda further submitted

that the accused no.3 Dinesh M.N. and the accused no.15

Abhay Chudasama also got bail on 4th attempt.

16 Per contra, the learned Spl.P.P. Mr. Raju submitted

that there is no parity ~t all with the accused no.l. According

to Mr. Raju, the accu$ed no.1 was the head of the team of

encounter party. The role of the accused no.1 started from

keeping dece~sed in Arham farm house. Mr. Raju further

submitted, .relying on statement of PW-105 Nathubhau Jadeja-

police, driver, that the accused no..l personally lit the funeral

pyre of the deceased Kausarhi cmd burnt her into the ashes.
 19 7(11/1'7
According to Mr. Raju, three persons i.e. Sohrabuddin, his wife

and Tulsiram Prajapati were last seen in the company of tpe

accused n.l and others, therefore in the opinion oi Mr .Raju, it

is for the accused to prove as to how the above three persons

died. He further submitted that if the accused no.l is released

on bail he will tamper with the witnesses. Nlr. Raju further

submitted that after killing Sohrabuddin and his wife the

accused no.l met the accused no.20 Gulabchand Kataria at

Jagmandir, Rajasthan.

17 The learned Sr.P.P. Mr. Raju further submitted that

the PW- 217 V.L. Solanki carried out the investigation in

inquiry No.66/2006. According to Mr. Raju when the Solanki

was inquiring about Tulsiram Prajapati, the accused no.l got

transferred to border r:ange and thereafter Tulsiram was killed

in fake encounter. Mr. Raju has also relied on the statements

of Ranvijay Singh (PW-6), and Patel Brothers (PWs 66 and 67)

m order to show as to how the accused no.l created false

 20
r/1r(2~
. record in respect of Sohrabuddin, so that later on he can be

killed in fake encounter.

18 The learned Sr. Counsel Mr. Ponda has relied in the

case of (1) Rajesh Babanandan Shah @ Damchya V/s. State of

Maharashtra (2006 ALL MR (Cri) 1952). (2) Janu @ Billa

Malappa Pawar V/s. State of Maharashtra (2006 ALL.MR (Cri.)

2577). (3) Copy of the judgment of the Hon'ble Supreme Court

in Criminal Appeal No.159/2012 and (4) copy of the judgment

in SLP (Cri.) No.3207/2000. The above rulings have been

submitted in support of the legal proposition that if matn

perpetrator of the crime is released on bail on account of lapse

of investigating agency, the other accused are entitled for bail,

mere pendency of other criminal cases cannot be a ground for

rejection of bail. I have gone through the above rulings very

carefully. There cannot two views about the law laid down in

the above rulings.

 21 1{-rr- I2-,
19 The learned Sr. Counsel Mr. Panda has also relied

in the case of (1) Rameshbhai Batubhaj Dhabi V/s. State of

Gujarat [2011 (3) Misc.Cri.A. 1999]. (2) Kalyan Chandra

Sarkar etc. VIs. Rajesh Ranjan alias Paopa Yadav and another

(2005 CPJ.L.J. 944). and (3) Babu Singh and others V/s. The

State of Uttar Pradesh (1978 CRI L.J. 651. The aforesaid

rulings have been relied on behalf of the accused no.1 in

support of legal proposition that where Superior Courts have

granted bail to co-a.ccused under section 438 or 439 of Cr.P.C.

subordinate courts are duty bound to consider same and apply

if same set of facts exist unless there being any extraordinary

circumstances or striking dissimilarities exist to deviate from

rule of parity, findings of higher courts or co-ordinate bench

must receive serious consideration at hands of court

entertaining bail application at later stage when same had been

rejected earlier, order refusing bail does not bar fresh

application on later occasion giving more details, further

development and different consideration. I have carefully gone

 22 7/II( ~ L-

through the above rulings. There cannot be two views about

the law laid down in the aforesaid rulings.

20 As against the learned Spl.P.P. Mr. Raju has relied

in the case of (1) Kalyan Chandra Sarkar V/s. Rajesh Rani an

(2004) 7 SCC 529). (2) State of U.P. Through CBI V/s

Madhumani Tripathi [(2005)1 Supreme Court Cases 21 (3)

Rajesh Ranjan Yadav alias Pappa Yaday V/s CBI through its

Director [(2007)1 SCC 701. (4) Satish Jaggi V/s State of

Chhatisgarh and others [(2007)11 Supreme Court Cases 195],

(5) Prakash Kadam and others V/s Ramprasad Vishwanath

Gupta and another [(2011)6 SCC 1891 and (6) Rayinclrapal

Singh V/s Aiit Singh and another [(2011)4 SCC 238. The

aforesaid rulings have been relied on in support of the

proposition of law that while granting the bail the nature of

accusation and the severity of punishment in case of conviction

and the nature of supporting evidence must be considered, bail

is not justified where gravity of the offence alleged was severe

 23 7/JL 1-2 3

and serious allegations of tampering with the witnesses made

against the accused, there is no absolute rule that a long

period of incarceration by itself would entitle an tmder trial to

bail, it would be wholly inappropriate to grant bail when the

investigation and trial are nearly over, and allegations against

the accused are serious, police acting as contract killers

accused policemen allegedly killed deceased in a false police

encounter at behest of third person, held gravity and nature of

the offence, prima facie case against accused, position and

standing of accused etc. are factors other than misuse of bail

to be considered for cancellation of bail', where a fake

encounter is proved against policemen in a trial, they must be

given death sentence etc. I have gone througl1 the above

rulings very carefully. No one can dispute the propos~tion of

law as laid down in the aforesaid rulings.

21 On perusal of the contents in the applicaticfi for bail

it is seen that the accused no.l has made on attempt to show

 24 "; jJT/t-~
that there is no prima-facie evidence against him. However, it

is the accused no.l's own case that his earlier bail application

has been rejected by the Sessions Court in Gujarat. He has

also mentioned in the application are that his bail application

bearing no.13756/2007 has been rejected by the Hon'ble

Gujarat High Court on merit. His only contention is that this

bail application is filed after the CBI has filed charge -sheet

against him. However, when the Sessions Court in Gujarat and

the Hon'ble Gujarat High Court have rejected the bail

application of accused no.l on earlier occasion on merit, mere

filing of charge-sheet by the CBI against the accused no.l

would not make much difference. Therefore, once the bail

applications of the accused no.l have already been rejected on

merit, it is now not permissible for this court to go into merit

of the case so as to see whether prima facie case exists or not

against the accused no.l.

22 It is further seen from perusal of para nos.3/ll and

 25 7 (;rf J-5

3/12 of the application that the accused no.1 is claiming bail on

the ground of parity as the other accused have been enlarged

on bail by the different courts. It is the contention of the

accused no.l that the accused Gulabchand Kataria, Vimal

Patani, N. Balasubramanian and G. Srinivas Rao (accused

nos.20 to 23) who are stated as the key conspirators in the

offence have been enlarged on anticipatory bail by this court.

So also the accused no.16 Amit Shah who is the prime and key

conspirator and king pin in the offence has been released on

bail by the Hon'ble Gujarat High Court. The accused no.1 has

further contended that the owner of the Arham Farm house

Rajendra alias Jirawala (accused no.19) has been released on

regular bail by the On'ble Gujarat High Court In

Misc.Application No.14395 of 2010. Further the accused

nos~17 and 18 Ajay Patel and Yashpal Chudasma have been

enlarged on anticipatory bail. So also the accused no.12 N.K.

Amin has also been released on bail by the Hon'ble Bombay

High Court considering the lack of prime facie evidence and

 26 7(Jr(1-'
period undergone by the accused person in jail. So also- the

accused N.V. Chuhan (accused no.13) has been enlarged on

bail by the Hon'ble Supreme Court of India sol~ly on the

ground that he remained in jail for 5 years and 3 months.

Therefore, according to the accused no.l on the principle of

parity, he is entitled for regular bail.

23 However, it may be noted here that though the

accused no.l has claimed parity with the aforesaid~ accused for

claiming bail he has not filed on record certified copies of the

orders passed in the said proceedings, so as to justify his

claim .that he stands on the same footing with the aforesaid

accused.

24 The learned senior counsel Mr. Ponda for the

accused no.l at the time of argument relied on copy of the

judgment in Criminal Appeal Nos.698/2014 and 699/2014

claiming that the Hon'ble Supreme Court after considering the

:"·,

'

27 7/n (21
role attributed to the accused nos.2 and 6 and considering the

fact that they are in jail for more than seven years have been

enlarged on bail by the Hon'ble Supreme Court. Therefore, the

learned senior counsel Mr. Panda claimed bail for the accused

no.l on the ground of parity, lapse of seven years of the

accused no.l in jail and that there is no likelihood of trial being

commenced in near future. According to Mr. Panda the role of

the accused no.6 is more serious than the accused no.l.

Relying on the statement of Ajaykumar Bhagwandas Mr. Panda

submitted that as per the prosecution case at the relevant time,

the accused no.6 grabbed Sohrabuddin and thereafter he was

shot dead in a fake encounter. Mr. Panda further submitted

that the other charges levelled against the accused nos.l, 2

and 6 are the same and therefore, it is contended that the

accused no.l is entitled for bail on the ground of parity.

25, With due respect to Mr. Ponda I do not agree with

the submissions that the accused no.l stands on the same

 28
7(JJ:(2!
footing as that of accused nos.2 and 6. Before I advert to the

role played by the accused no.l in the entire alleged

conspiracy I would like to mention that the contention of the

accused no.l that trial is not likely to commence within near

future is not a grotmd available for him now. The fact on

record shows that the entire records in respect of Tulsiram

Prajapati fake encounter lying in Gujarat Court have been filed

in this court. The Hon'ble Supreme Court has given directions

to translate Gujarati documents in Marathi within three months.

As per the directions of this courl the Investigating Officer in

this matter has submitted today a list of documents which need

to be translated. This court has requested assistance of

Hon'ble High court, Mumbai in getting Gujarati documents

translated in Marathi. After the translation work is over then

charge can be framed and trial can commence. As such the

accused no.l cannot now say that there is no possibility of the

trial being commenced jn near future. So far the jail

 29 7/E/2/
incarceration is concerned the present accused is in jail from

24/04/2007.

26 So far as the role of the present accused IS

concerned, prima-facie I find that there is ample evidence on

record to show that he does not sand on the same footing with

the accused nos.2, 6 or for that purpose with the other

accused as mentioned in para nos.3/11 and 3/12 of the

application. The statement of witness Nathubahi Pravin Sinh

Jadeja (Driver on police vehicle in ATS, Ahmedabad) would

prima-facie show as to how the accused no.2 Pandiyan,

accused no.5 Dabhi, accused no.lO Ajay Parmar and accused

no.ll Santaram Sharma went to Hyderabad stayed there,

thereafter they picked up Sohrabuddin, his wife Kausarbi and

Tulsiram from the bus when . they were enroute from

Hyderabad to Sangli. The statement of the said witness

further prima-facie shows as how the said three persons were

brought to Ahmedabad. The statement of said witness further

 30 7/J1: ~-~ D

pnma facie reveals as to how on 25/11/2005 at about 5.30

hours Sohrabuddin was brought to Vishal Circle and as to how

he was encountered by the police officers. The statement of

the said witness further shows that at the time of encounter of

Sohrabuddin, the accused nos.l, 2, S.P. of Udaipur, accused

no.6 Choubey, Santaram Sharma and three officer of Udaipur

were present.

27 The statement of another driver Lalbhai Rathod also

prime-facie shows that deceased Sohrabuddin was

encountered at about 5.30 p.m. on 25/11/2005 at Vishala

Circle.

28 Further, the statement of Nathubhai Jadeja and V.A.

Rathod (accused no.14, not sent for trial) prima facie disclose

the overt act by the accused no.1 in burning the dead body of

Kauserbi by the accused no.l. The statements of these two

witness recorded by the CBI give details as to how vehicles

 31 7/Ir(3t
were made available, as to how fire wood was purchased, as to

how dead body of Kasurbi was burnt, as to how the dead body

of the Kausarbi was set on uneral pyre. These two 1 witnesses

have stated in their statements that the accused no.l lit

matchstick and set they funeral pyre of. Kausarbi on fire. The

accused no.l and others remained there till the entire dead

body of the Kausarbi was burnt into ashes. The statements of

the above two witnesses further prima faice show that on the

directions of the accus~d no.l the remains of ashes and bones

were collected in one gunny bag by his subordinate and were

thrown in the water of Narmada river at Bharuch. It may be

noted here that this role of setting funeral pyre of Kausarbi on

fire has not at all been attributed to any other accused.

29 The facts on record as mentioned earlier prrma

facie reveal that at the instructions of the accused no.l the

dead body of ,deceased Kausarabi was burnt into ashes and

remains of ashes and bones were collected and thrown at

 (~

32 7/-.w (3 "1---
Narmada River. The facts on record further prima-facie

establish that Sohrabuddin, Kasurbi and Tu!siram Prajapati had

been kidnapped from Andhra Pradesh and they had been

brought from Ahmedabad. When the dead body of Kausarbi

was destroyed as per the directions of the accused no.l a

plausible prime-facie inference can be drawn that Kausarbi

was in the custody of the accused no.l till her death. It is

nobody case that the Kasuarbi had any criminal antecedent.

Therefore, prima-facie it can be said that an innocent woman

has lost her life because of the act of the accused no.l and as

mentioned earlier the accused no.l played a pivotal role in

destroyingher dead body. In fact it is for the accused no.l to

show that how Kausarbi died. It may be further noted that

when the Hon'ble Supreme Court in Writ Petition No.6/2007

was about to give direction to produce Kausarbi before it then

only Gujarat Government admitted that Kausarbi has been

killed.

;·

·...._
p--:----,

33 7/Ir/33
31 It may be further noted that at the relevant time the

accused no.l was the Chief of ATS, Ahmedabad and the

accuse dnos.2 and 6 were his sub-ordinates. Therefore, the

accused nos.2, 6 and others while taking Sohrabuddin,

Kausarbi and Tulsiram Prajapati from Hyderabad to

Ahmedabad, prima-facie, must have acted as per the directions

of the accused no.l. The accused no.2, 6 and others prima-

facie are not supposed to go to Hyderabad, · stay there~ pick-

up Sohrabuddin, Kausarbi and Tulsiram Prajapati, keep them in

farm house and kill them of their own. Therefore, m my

considered view the accused no.1 cannot say that role of the

other accused is different/more serious than him.

32 The matter does not rest here. The facts on record

further prima-facie show that Tulsiram Prajapati was killed in

fake encounter on 28/12/2006 at Ambaji. The facts on record

further prima-facie disclose the active participation of the

accused no.1 in the said fake encounter. The prosecution i.e.

__.-...,,

34 7/JC( JLt
CBI has brought to my notice statements of some witnesses

recorded in, Tulsiram Prajapati case, now clubbed with the

Sohrabuddin case. The witness Khanji Ranaji Jadeja is the

constable working in Gujarat Police. As per his statement, at

the relevant time accused no.l D.G. Vanjara was posted as

Dy.I.G, Border Range, R.R. Cell is working under direct control

of Range IG/Dy.IG. As per the statement of the said witness on

25/12/2006, the accused no.l called him in his chamber at

about 6.00 p.m. He asked him to go to the residence of Ashish

A. Pandya (accused no.7 in Tulsiram Prajapati case), PSI, SOG,

Palanpur situated at Meghpar village, Tal. Bhurj and asked him

to contact accused no.l D.G.Vanzara. According to the said

witness, since Shri Meghjibhai Maheshwar, Head Constable

was a native of same locality, he and Meghibhai Maheshwari

went to the house of .Ashish Pandya. However, at that time

Ashish Pandya was not available at home. The parents and

wife of the accused no.7 were present in the house and they

disclosed them that Ashish Pandya had left home in the

--,

35
7/Jt(~ J
mormng. They were not knowing where he had gone. The

said witnesses Khanji Jadeja and head constable Maheshwari

informed the father and wife of Ashish Pandya , that D. G.

Vanzara (accused no.l) wanted to talk with Ashish Pandya.

They left the said message of accused no.1 with theq1.

Thereafter they both came to accused no.l D.G. Vanzara and

intimated him the above facts. Similar is statement of

Meghjibhai Maheshwari.

33 The statement of Mayur Jagmal Chavda, Assistant

Commissioner of Police, City Crime Branch, Ahmedabad City,

Gujarat amongst other reveals that on 28/12/2006, he received

a call from Ambaji PI Shri A.M. Patel on his mobile at around

6.15 hours informing him that an incident of cross firing had

occurred near Chapri Check Post in which a police officer has

been injured and also that SP Vipul Agrawal (accused in

Tulsiram Prajapati) is sitting in the Civil Hospital, Ambaji . He

told the witness to immediately report to the SP in the hospital.

 7 /§(3 6
.-~~

36

The witness immediately got ready and reached Civil Hospital

at around 7.30 hours. At that time, A.M. Patel informed him

that SOG PSI Ashish Pandya is the officer injured' in the cross

firing. According to this witness, then he reported to SP Vipul

Agarwal, who was sitting by the side of Ashish Pandya. Both

Vipul Agarwal and Pandya were talking to the DIG Border

Range over mobile of Ashish Pandya on rotation who was

dictating them the contents of the FIR to be registered. ,

According to this witness, Ashish Pandya prepared the FIR

which took around one and half hours. Then Patel took the FIR

of Ashish Pandya to the police station for registration of the

offence.

34 It may be noted here that as per the prosecution

case the accused no. 7 Ashish Pandya killed Tulsiram Prajapati

in fake encounter. The statement of this witness further

prima-facie shows that the accused no.l dictated the contents

of the FIR lodged by the accused no.7 in respect of cross

I
 37
7lJr:{37
firing. Investigation conducted by the CBI reveals that story of

Tulsiram Prajapati escaping from the custody of police when

he was being taken back by railway after attending the

different courts is false one. If the above evidence prima-

facie shows that the accused no.l had asked the accused no. 7

prior to encounter of Tulsiram Prajapati when the facts prima-

facie disclose that he dictated the contents of FIR to be lodged

by the PSI Ashish Pandya (accused no. 7) in respect of cross

firing, in my considered view the above facts show distinct and

separate role played by the accused no.l in destroying and

disappearing of body of Kausarbi and thereafter killing

Tulsiram Prajapati in fake encounter. Therefore, m my

opinion, the role played by the accused no.l in entire incident

of kidnapping Sohrabuddin, his wife and Tulsiram Prajapati and

thereafter killing them is not on parity with the role attributed

to the other accused persons. Since the role attributed to the

accused no.l is not the same as attributed to the accused nos.2

 38 7fJt( 3~
and 6 or for that purpose with the other accused, the accused

no.1 is not entitled for bail on the ground of parity.

35 The accused no.1 has also stated in his application

about retraction of statements by some of the witnesses.

However, in my view this aspect carmot be considered at this

stage. This aspect can be considered only at the time of trial .

The accused no.1 has also relied on copy of the judgment

passed by the Hon'ble Bombay High Court in Bail Applications

Nos.1757/2013, 1926/2012 and 618/2014 by which the

accused Abhaysinh Devisinh Chudasama, Dinesh M.N. And

Mukeshbhai Laljibhai Parmar have been released on bail by the

order dated 28/04/2014. It was informed to me at the time of

arguments by the learned Spl.P.P., Mr. Raju that the Hon'ble

High Court has stayed this order for one week. No further

progress has been reported. However, as mentioned earlier

the role of the accused no.1 i~ quiet distinct and separate in

respect of destroying dead body of Kausarbi and thereafter

 39 7{rr-(3i
killing Tulsiram Prajapati in fake encounter on 28/12/2006.

Therefore, the role attributed to the accused Abhay

Chudasama, Dinesh M. N. and Mukeshbhai Parmar, cannot be

stated to be similar to role played by the accused no.l.

35 Considering the above facts on record I am of the

opinion that since there is no parity, the accused no.l is not at

all entitled for regular bail as claimed. Therefore, rulings relied ·

on by the accused no.l are not applicable to the facts of

present case. Hence, I proceed to pass following order:-

ORDER

Bail Application (Exh.204) is hereby rejected.

Bail Application (Exh.204) stands disposed off

accordingly.

(J.T. UTPAT)
Additional Sessions Judge
Date:-09/05/2014 Greater Mumbai.
 7/Jr/4 ()
40

Dictated on : 09/05/2014
Transcribed on: 26-27/05/2014
Signed by HHJ on: 30/05/2014.
 7/nr- ,,

CORAM: H.H.J.THE SPECIALJUDGE SPECIAL

JUDGE SHRI B.H. LOYA (C.R.N0.49)

DATE : 30TH OCTOBER 2014.

NOTING

17.10.2014 Coram: H.H. The Spi.Judge Shri B.H.Loya

S.C. Nos. Spi.P.P. Mr. B.P:Raju for CBI present.
177/2013@ 10 Mr. Vishwas Meena, PC Mr. J.K. Patil and
178/2013@ PC Mr. Hatiskar for CBI present.
577/2013@ Adv.Mr. Vijay Hiremath along with Advocate
312/2014 Ms. Anubha Rastogi for complainant present.
Complainant Rubabuddin present.
Accused nos.2, 3, 4, 6, 15 and 17 present.
Accused nos. 5 and 7 produced from jail and
accd.nos. 1 and 25 to 34 not produced from JC.
Accused nos.10,11 and 14 not charge-sheeted,
not present.
Accused no.12 on bail in this case but JC in
another case not produced.
Accused nos.8,9,13,16,18,19,21, 22, 23, 35, 37
and 38 not present.
Advocates Mr. Tarun Sharma for accused nos.2
and 13, Ms. Aanandini Fernandis for accused
no.3, Mahesh jethmalani for accused no.4,
Mr.Sachin Pawar for accused nos.5,25,35 and 36
Mr. S.V. Raju alonJ with Mr. M.K. Amin for
accused no.16, Ms. Sweta jadhav for accd.no.l7,
 2
'fnr( 1--
Mr. Madhukar Dalvi for accused no.l8, Mr. Amit
Ghag for accused no.l9, Mr. Madhusudan Parikh
for accused nos.20 and 21, Mr. Pradhan along
with Dhumal for accused nos.22 and 23 are

~
present.
;

;I Exh.445 to Exemption applications filed on behalf of

~ Exh.454 accused nos.8,9,16119,22 & 23,20,21,35,37 and
~
38 respectively t.o.r. marked at Exh.445 to 454.

I Spi.P.P. to say.

Ii l=vh 11 ~ ~
'-"1.1.-r.JJ
1\.nnlir~+-inn
"fJtJ11~UI.IVII
-f"r"
lVI
nL"'-r~~...,,..., ..... +-
tJ~IIIIOIIC:III.

of accused no.16 t.o.r. and marked at Exh.455.

"'"'"....,..._,~._:,.... . . . .
C:.I\C:IIItJI..IUII
" . . . . h.-..t-..-1+
VII UCIIOII

I Spi.P.P. to say.

Il
~
Exh.456 Application on behalf of accused no.20 for
permission to obtain visa and to travel abroad
i
I1 . t.o.r. and marked at Exh.456. Spi.P.P. to say.

l The learned advocate for the accused no.l6

sought time for say on Exh.413 filed by the
complainant to stay· the proceedings till
supplying the translated copies of the charge-
sheet and records.
The learned Spi.P.P. and the learned advocates
for the accused sought time for filing say to the
applic<;~tion Exh.441 filed by the complainant to
stay the proceedings to the extent of hearing of
the interim applications and discharge
application till supplying the translated copies of
the charge-sheet and records.

.•
 3 7/m:f :!-;
It is submitted by the 10 that the work of
translation will be completed within a week or
so. In view of the said submissions made and
time sought for reply to ExhsA13 and 441, time
granted for reply.
In view of the pending applications ExhsA13 and
441, the hearing of discharge applications
Exh.83 and 120 filed by the accused nos.20 and
21 respectively, discharge application Exh.232
filar! h" tho
III'...,.U U J
::.rr••carl Inl"\
\.t I'\,... U'\.,.'-\.A....:J'-\...1
1 k J::vh ~()1 rlicrh:::.rna ~\,.
IV• ..&..V 1 L-1'\II._,V.L UI....J'-IIUI

application filed by the accused no.4, hearing of

applications Exh.393 and 394 filed by the
accused no.35 and 36 respectively under section
197 of Cr.P.C., Bail Application nos.9/14 and
12/14 filed by the accused nos.37 and 38
respectively, hearing on application Exh.289 for
bail filed by the accused nos.35 and 36 are
adjourned till next date.
The advocate for accused no.13 sought time for
hearing on application Exh.408 filed by the
complainant in respect of cancellation of bail
and misbehavior of accused no.l3, on the
ground that the accused no.13 is not present in
the court, for the reason stated above time is
granted.
The learned advocate for the accused nos.15 ·
sought time for submitting details about the
 ••.• _...... ,.. .._..., •.._...... --~··~L'o:-;LJ~t-'-'-"~'--' .•.· ' " ., • --~- •·• • .,·_.:J:.u.·. -~-·-·

7 ,Til,~
4

passport to be renewed as contended in

Exh.438. Time granted.
The learned Spi.P.P. has filed his say on E~h.445
i:
t to 454.
' '

l Exh.457 Reply to Exh.447 filed by the complainant in

Jte
respect of exemption of the accused no.16 t.o.r.
and marked at Exh.457.
The,learned Spi.P.P. has sought time for filing say
on Exh.423 filed on behalf of the accused no.22
!
F
.l:, _ _
lUI
- ... ~.&..-·--=--
t::-"LI:::!II~IUII
-..&. .... :_,.... ............ ,.. .... - ' \ ' l l
Ul Lll.llt;; LU ::a.ay
-..h ... ,....,~.r~
OUIVOU.
~
t,,
j Time granted as last chance.
~
~ Heard the learned Spi.P.P. for the CBI and the
i learned respective advocates for the accused
~
\1
'if.* persons on exemption applications Exhs.445 to
I 454.
I!
Reply of the complainant objecting to the
exemption of accused no.16 is also taken into
consideration. Heard the learned advocate for
the accused no.16 on the aspect of objection
taken by the complainant for the exemption of
accused no.l6.
According to the accused no.l6, he is the
President of a prominent -political party and he is
involved in the matters concerning formation of
Cabinet of Minister of the State of Maharashtra
and he is deeply involved in national level
politics. Further, the political party - of the
.~'

5 7(JJJ/s
applicant is busy in swearing ceremony, which is
going to be · taken place tomorrow. It is
submitted on his behalf that it is not possible for
him to attend the court today as he has to take
certain important decisions relating to the
formation of the Government. On the previous
date it was specifically directed to the accused
no.l6 to arrange his programme in such a
manner that he is able to attend the court on
the date fixed. Today it is brought to the notice
of this court that ceremony of the Cabinet of
Ministers of the State of Maharashtra is going to
take place tomorrow and for that the accused
no.l6 is required to stay at Delhi. It is submitted
that some interim applications are yet to be
decided and it is the complainant who has
applied for stay of proceedings on the ground
that translated copies of the charge-sheet and
records are not supplied to him. Taking into
consideration the submissions from both the
sides it appears to me that there is no malafide
intention of the accused no.l6 to remain absent
in the court and that he has applied his
exemption due to certain urgency. On behalf of
the accused no.l6, the reliance is placed on the
\
case of Sandeep Kumar Bafna V. State of
Maharashtra and another (AjR 2014 S.C 1745).
 6 7/TJT( 6
-
The Hon•bte Apex Court has considered about
the role of the aggrieved party in the criminal
case and more particularly in the trial in' para
no.25 of the judgment the Hon•bte Apex Court
has held that "no vested right is granted to a

I complainant or informant or aggrieved party to

directly conduct a prosecution. So far as the

I Magistrate is concerned, comparative latitude is

I given to him but he must always bear in mind

i that whiie the prosecution must remain being

I,j robust and comprehensive and effective

should not abandon th-e need to be free, fair and
it

diligent. So far as the Sessions Court is

1
~
l
concerned, it is the Public Prosecutor who must
i
li at all times remain in control of the prosecution
'
and a counsel of a private party can only ·assist
the Public Prosecutor in discharging its
responsibility. The complainant or informant or
aggrieved party may, however, be heard at a
crucial and critical juncture of the Trial so that
his interests in the prosecution are not
prejudiced or jeopardized. It seems to us that
constant or even frequent interference in the
prosecution should not be encourged as it will
have a deleterious impact on its impartiality."
Relying on the abovesaid ratio the learned
advocate for the accused no.16 objected to the

';'
 7
!/SU/7
participation of the complainant and his
advocate in the power of the court to grant
exemption to the accused from, attending the
court. Considering the said submissions. reasons
given and some of the important interim
applications are yet to be decided, I am of the
view that the accused persons and more
particularly accused no.l6 are entitled for
exemption from attending the court today and
accordingly, ! proceed to pass the fo!!owing
order:-

ORDER:- Applications Exhs.445 to 454 are

hereby allowed and the attendance of the above
referred accused persons in the court stands
dkn&:lnc:::&:lrl with

The learned Spi.P.P.and the advocate for the

complainant sought time for written submissions
on the application Exh.455 for permanent
exemption. Time granted.
It was- directed to the learned Spi.P.P. on
yesterday to submit progress r~port relating to
the translation work. He is requested to sybmit
his report relating to the translation work of the
charge-sheet and other record as directed by the
Hon'ble Supreme Court.
 ,,---.

8
l /1117( ~
Exh.459 Pursis filed on behalf of the accused except
accus.ed nos.15 and 24 that they do not want
~
I translation of the charge-sheet and do~uments

in Marathi. However, the ·accused nos.15 ~nd 24

I
I•·
are pressing to supply the translated copies of
charge-sheet and record in Marathi.
The learned Spi.P.P. to take appropriate steps
*
:f
and-to verify from the Chief Translator, Bombay
i
·•~ High Court about the feasibility of translation of
··i
j rh~rna_chcot ::llnrl rornrrlc frnm r:, .i~r~t-i 1-n
I '-''~'~'- -.JI'I.'-'-~ '\All~ ''-"-·'-'1'-A~ 11'-'11.1 '-'UjUIU'-1 \.V
~

it Marathi and submit report forthwith.

Writ along with order dated 22.09.2014 passed

I
~
by the Hon'ble Apex Court is received by this
court on yesterday i.e. 29/10/2014. The Hon'ble

I~
~
Apex Court has directed this court to take up the
case for consideration and inform the progress
fr
~- of the case on or before next date fixed. The
progress report is prepared on the basis of
record and roznama of this case as well as
report received from Chief Translator, Bombay
High Court and forwarded to the Hon 'ble
Supreme Court through the Hon'ble Principal
judge of this court and a copy of the letter is
also marked to the Hon'ble Registrar General,
High· Court of Judicature, Appellate Side, Gr.
Bombay for information and necessary action.
 9
7/rrrf 1
Adjourned for reply and hearing of applications
Exh.413 and 441 filed by the complainant,
discharge applications of accused rlos.20, 21, 16
and 4 at Exhs.83,120, 232 and 302 respectively,
for reply and ·arguments of Spi.P.P. On
applications Exhs.393 and 394 filed by the
accused nos.35 and 36 under section 197
Cr.P.C., bail applications of accused nos.35, 36,
37 and 38 at Exh.289, BA Nos.9/14 and 12/14,
hearing on appiications Exh.438 of accused
no.15 for renewal of passport and hearing on
application of · complainant Exh.408 for
cancellation of bail of accused no.13 on
10/11/2014.
The learned advocate for accused no.20 and the
learned advocate for accused no.22 requested
for .earlier date for hearing their applications
Exhs.423 and 456.
With consent of both the sides the hearing of
Exhs.423 and 456 are adjourned to 07.11.2014.
The- report of 10/Spi.P.P. regarding work of
translation letter is forwarded ~o the Honlble
Supreme Court and the copy thereof is
forwarded to the Honlble Registrar General, High
Court of judicature through Principal judge of
City Civil Court.

'
 ,r_.---...'\

10 ·7 {TIT(, c
A separate letter also forwarded to the Hon'ble
Registrar General, Bombay High Court through
the Hon'ble
.
Principal judge regarding transiation
I

of the documents in Marathi. The copies of the

above referred letter are kept in R & P.

i
Special judge.
tj
l
I
~-
Writ is received from the Hon'ble High Court in
1 \

I Criminal Bail Application No.l889/2014 of

I DcVipul Aggarwal V/s. The State of Maharashtra

I along. with order datedlOth October 2014. The

Hon'ble High Court has granted bail to the

I
i
~
accused no.24 and has allowed the applicant to
deposit ~ash amount of Rs.SO,OOO/- in lieu of
I
~
surety. It is made clear that the said option shall
~
f
remain in force for a period of eight weeks and
the applicant shall arrange for surety within that
period. Accordingly, the accused no.24 has
deposited cash surety and is released on bail. A
copy of the. order of Writ is kept in R & P and
necessary entry is taken in the register.
A noting to that effect is taken in today's
roznama. Hence, complied

Special judge.

--~---~----·~- ·-- -,.-~--·

 7/J!:-/F
IN THE COURT OF SPECIAL JUDGE FOR C.B.I. AT BOMBAY

APPLICATION (EXHIBIT. 455)

IN
SESSION CASE NOS. 177, 178 & 577/2013

Amit A.nilchandra Shah Applicant/Accused No.16

V/s.
C.B.I. Complainant/Respondent

Adv. Mr. S.V. Raju with Mr. M.R. Amin for Applicant/Accused No.l6.
Adv. Mr. B.P. Raju, Spl. P.P. for C.B.I.
Adv. Mr. Vijay Hiremath for Original Complainant.
CORAM: H.H. the Special Judge
Shri B.H. LOYA.
DATE: 10rh November, 2014

Order below Ex.455

1. This is an application on behalf of Applicant/Accused No.16

for permanent exemption from attending the Court under sec.317 of the
Cr. P.C., 1973.
2. The contention of the Applicant/Accused No.l6 in brief is
"
that his Discharge Application (Ex.232) is pending for hearing and
disposal. Not only that some of the applications under sec.197 of the Cr.
P.C. are also pending for hearing and disposal. Further, the complainant
has asked for staying the hearing of the discharge application till
\_
furnishing translated record and proceeding into English. Then~ is no
j

-·---·---·--·"·-·-••·-·-.~·~o~·--~-·-•· -•·--•-· "·•• --· .,.-• ,.,

!~'

-, 7/§( 1-

possibility of the commencement of the trial in near future. There is no

necessity of the presence of the applicant in the Court at this stage. He
is the President of a prominent political party. He is involved in the
political matters at National and State level. He is represented by a
I

lawyer in the court at all stages. There will be no prejudice if he is

exempted from appearing in the court till further orders.
3. The C.B.I. has filed reply at Ex. 466 and thereby submitted
that it has no objection to grant permanent exemption to the Applicant/
Accused No.16 at this stage and has prayed for appropriate decision.
4. Heard Ld. Advocate for Accused No.16, Ld. S.P.P. for the
C.B.I. and Ld. Advocate representing the complainant.
5. It is the submission on behalf of Accused No.l6 that some
of the interim applications are pending in the Court ·for hearing and
disposal. It will take much time. The applicant is represented by a
lawyer throughout. There is no possibility of abscondance of the
accused to avoid trial. There i~ no need for presence of the Accused at
this stage in the Court. According to
·,,
the Ld. Advocate for the Accusedi
·.,

ther.e exists suffi~ient_reasons to gnmt permanent exemption to Acc4sed

No.16 fr~m appearing in: the Court. ' (
·~-

6. The Ld. Advocate· for the Complainant has objected for the
permanent exemption of Accused No.16maillly on the ground that since
long the accused has not attended tl}e Court wh,ereas the Complainant is
attending the ,coui1: reguiar;ly~- -Itis a- ·fact that Accused No.l6 is not
attending the 'court ~in_se 1~ng ahd his personal. attendance from the
Court was exempted by theiCoun from time to time. It is also a fact that
the complainant .is attending the ,court regularly. It is required to be
mentioned here that t~¢ c(')mplain~t is attending the court on his own.
He was not asked by the Court to attend the Court for inquiry or trial;
It is with a View to keep wa~ch on the proceeding he is a~ending the
'~

3 -,(Jr/J
Court regularly. It is choice of the complainant to attend the court
regularly or not till his presence is required by the Court.
7. It is general rule that the accused has to attend the court
regularly on the given dates. However, there are some ~xceptions to the
I

said rule and those are given in sec.317 of the Cr. P.C. Under the said
provision, the Court is empowered to dispense with the attendance of
the accused and to proceed with the inquiry or trial in his absence on
satisfactory reasons. The discretion is left with the court under sec.317
of the Cr. P.C. to accord exemption to the accused from attending the
Court for reasons to be recorded.
Q
Vo It is submitted on behalf of the Accused by his Ld, Advocate
that the court must be liberal while exercising its power to grant
exemption for the accused from personal appearance in the court. For
the said purpose, he put in his reliance on the case Mrs. Maneka Sanjay
Gandhi & Anr. vs. Miss. Rani Jethmalani ((1979) 4 SCC 167). The
Hon'ble Apex Court in para 8 of the said judgment has held that "the
trial court should readily consider the liberal exercise of its power to
grant for the accused exemption from personal appearance save on
crucial occasions." It is, therefore, clear that the court must be liberal
while dealing with the matter relating to the exemption of the accused
from appearing in the court. However, at the same time, the court is
required to consider whether there exists sufficient reasons for granting
the exemption.
9. The Ld. Advocate for the accused has objected to the
objection taken on behalf of the complainant for exemption of Accused
No.l6 on the ground that the complainant cannot interfere in the
judicial and administrative work of the court. For the said yurpose, he
put in. his reliance on the case Sundeep Kumar Bafna vs. State of
1
Maharashtra" (AIR 2014 S.C. 1745). The Hon'ble Apex Court has held
('~
'
4 7 j E/~
.
that there are no vested right in favour of the complainant or informant
or aggrieved party to directly conduct a prosecution. It is further held
that so far as Sessions Court is concerned, it is Public Prosecutor who
must at all times remains in control of the prosecution: and a counsel of
. I .
a private party can only assist the P.P. in discharge of his responsibility.
It is further held that the complainant, informant or aggrieved party
may, however; be heard at a crucial and critical juncture of the trial so
that his interests in the prosecution are not prejudiced or jeopardized.
Therefore, scope to the complainant to entertain the matter relating to
the exemption from attending the court is very limited or it can be said
that the court has to take the relevant factors into consideration while
dealing with such matter.
10. What is required to be taken into consideration by the court ·
is that there should be sufficient reasons for granting exemption to the
accused from appeanince in the Court and for that submissions of the
Ld. Advocate for the Acctised as well as Ld. S.P.P. for the C.BJ. is
required tobe taken irito consideration. The Ld. S.P.P. has relied ort:the
-,_ ., ... _

S(lY ofthe C.~.I. and submitted that presence of the Accused No.l6 at
this -stage is not required. The objection taken by the complairiant is ..
'
I

only because of the anxiety that Accused No~16 is not attending th~
court sirice long and it is the complainant who. is attending the court
regularly. As discusseq her,einabove, the presence of the complainant
was never; required by this ·court at any point oftime and it is the
complainant who is attehdin~ the tourt on his own r~gularly. It is one
of the objections of the·compfuinant that Accused No.16 has time to visit
various places ·includmg Mumqa.l, however, has. no time to attend. th~
.court. Th~ court i~--·not much 'concernec with the aspect ;tha(/what
Accused No.l6 is doing ·and where he is traveJ4ng. The court is oqly
concerned whether ptesence
' .
of Accused No.16 is necessary at this stage·
.' .

~-'-'""'"-,.,,.,_~~ ..,..,- .. _,.. -· ·'='-""',..,...,..,......... ~---~----------------· -------.......--,--,-..----:-..... ------·------~-,.. -------~-~~--

 5 7(nfs
and whether he is intentionally avoiding to attend the court.
11. As discussed hereinabove, interim applications of Accused
Nos.20, 21, and Accused No.4 besides Accused No.l6 for discharge are
pending for hearing and disposal. It is the complainant \;'ho has asked
for stay of the hearing of Discharge Applications on the ground that he
was not supplied with the translated copies of the record and
proceedings. Various other applications including applications under
sec.197 of the Cr. P.C. about cognizance to be taken by the Court
without prior sanction, are pending for hearing and disposal. There is
no possibility of abscondance of the Accused No.16 to avoid trial. Only
.,_\...,;....,._. ....,,.,.. .... .;_....,...-1 +-r.. h,.-, +-.,l.:rn..,.., ;...,t-.,....._ nf\.·ru,;,=,a..,..."lt-1ru·"'l 1C' t-h"::t- "lATh-:at- 1c t-ho C't"":l.f'Tt:l ~t
llllllC, lC:'-!LlllCU LV UC:. LCl.l\..ClJ. J.liLV '-VJ.l.:JI.lU\...J.U.L.lVJ.L J.V LJ.U..LL VV.J..U...r..L .l....J \...1..1.'-' oJU. .A.b'- \....I.L

which the Accused No.l6 is required to attend the court. Considering

the stage in the matter at present, the reasons given for permanent
exemption from attending the court, the reply given by the· C.B.I. and
the law laid down in the above cited authorities by the Hon'ble Apex
Court, I am of the view that instead of granting a blanket order for
permanent exemption, attendance of Accused No.16 is required to be
dispensed with till the matter reaches at the stage of framing of the
charge and/or as and when directed by the court, whichever is earlier.
With this understanding and on the undertaking that he will attend the
court at the stage of framing of the charge and/or as and when directed
by the court whichever is earlier, the Accused No.16 is hereby exempted
from attending the court and, accordingly, I proceed to pass the
following order:-
ORDER
Application is allowed as follows :-
The Applicant/Accused No.16 is hereby exempted from
appearing in the court till the matter reaches at the stage of
 6
7/ ~;6
I

framing of the Charge and/ or the court specifically

direct the Accused No.16 to attend the court, whichever is
earlier.

(B.H. LOYA)
Special Judge for CBI
Date:l0/11/2014 Greater Mumbai.

Dictated on : 10/11/2014
Transcribed on : 11/11/2014
Signed on : 11/11/2014

~
c
1
r
~
*··

~
~
It
~;

I
 7/Y{t
IN THE COURT OF SPECIAL JUDGE FOR C.B.I. AT BOMBAY

APPLICATION (EXHIBIT. 315)

IN
SESSION CASE NOS. 177, 178 & 577/2013

Gulabchand Katariya Applicant/Accused No.21

V/s.
C.B.I. Complainant/Respondent

------------------Aclv;---Mr-:--Madhusudan Pareek for Applicant/Accused No.21.

Adv. Mr. B.P. Raju, Spl. P.P. for C.B.I.
Adv. Mr. Vijay Hiremath for Original Complainant.
CORAM: The SpeCial Judge
B.H. LOYA.
DATE: 10ril November, 2014

Order below Ex.315

1. This is an application on behalf of Applicant/Accused No.21
for permanent exemption from attending the Court on the dates fixed.
2. It is the contention of the Applicant/Accused No.21 that he-
is duly represented by the Advocate on record and has attended the
court regularly. In the matter, his Discharge Application is pending for
hearing and disposal. Charge is yet to be framed. He i~ not only a
Member of Legislative Assembly but is Minister for Panchayati Raj in the
State of Rajastan (at present Home Minister). He is senior citizen and
recently underwent Knee Replacement Surgery. His presence for
adjudication of Discharge Application is not necessary. Therefore, it is
 2 7 ,/Jr/ L-
prayed that he be exempted from attending the court on the dares fixed.
•:(
'-'· The C.B.l. has opposed the Application by filing reply at
Ex.385. It is contention of the C.B.I. that Accused No.21 was granted
bail on the condition that he would make himself available for
I
interrrogation by the police as and when required and shall not leave
India without prior permission of the court. Therefore, his presence
before the court ~s necessary. There is no provision in the law providing
permanent exemption of the accused. The work of translation is
completed and presence of the accused is required for framing of the
Charge.
4. Heard the Ld. Advocate for the Applicant/Accused No.21
and the Ld. S.P.P. for the C.B.l.
5. It iS general rule that the accused has to attend the court
regularly on the dates fixed. However, there are some exceptions to the
said rule and those are given in sec.317 of the Cr. P.C. Under the said
provision, the Court is empowered to dispense with the attendance of
the accused and to proceed with the inquiry or trial in his absence on
satisfactory reasons. The discretion is left with the court under sec.317
of the Cr. P.C. to accord exemption to the' accused from attending the !
(

Court for reasons to be recorded .

6. .It is submitted ori behalf of the Accused by his W. Advocate;
that the court must be liberal while exercising its power to grant
,...
j

t exemption fo;r the accused' from. personal appearance in the court. For
I ·the said purpose, he put in_h:ls reliance on the case Mrs. Maneka Sanjay
I Gandhi & Anr. vs. Miss. Rani Jetlunalani ((1979) 4 SCC 167). The

I '

'
,Honble Apex Court in para 8 ofthe said judgment has held that "the
trial court should readily consider the liberal exercise 0f its pow~r to
grant for the accused exemption from personal appearance save on
crucial occasions." It is, $-erefore, clear that the court must be liberal
l

-~--~;,_.;
 3 7/:u.-{3
while dealing with the matter relating to the exemption of the accused
from appearing in the court. However, at the same time, the court is
required to consider whether there exists sufficient reasons for granting
the exemption.
7. The Ld. Advocate for the accused has objected to the
objection taken on behalf of the complainant for exemption of Accused
No.21 on the ground that the complainant cannot interfere in the
judicial and administrative work of the court. For the said purpose, he
put in his reliance on the case Sundeep Kumar Bafna vs. State of
Maharashtra (AIR 2014 S.C. 1745). The Hon'ble Apex Court has held
t-h<>t- t-l..ora <>ra nr. ""'"t-<>rl
L.lJ.UL L.I..L'-'.1.'- U.l ...... Y""r..J'L-'to.A
.1~'-"'
rio-ht- .L.&..I.
~.l.l:J.I..I.L
f~un11r nf t-hP
in ..I."""Y'-'\,.L.I. ._A..L- f'nmnbin!'lnt- Clr
'to.J.I.
infCirm~nt
--.a.~.a.y..L<ro.A..L..L.o.......,.a.,..._
......,..., .......... - . - ............ _ ...... _

or aggrieved party to directly conduct a prosecution. It is further held

that so far as Sessions Court is concerned, it is Public Prosecutor who
must at all times remains in control of the prosecution and a counsel of
a private party can only assist the P.P. in discharge of his responsibility.
It is further held that the comphiinant, informant or aggrieved party
may, however, be heard at a crucial and critical juncture of the trial so
that his interests in the prosecution are not prejudiced or jeopardized.
Therefore, scope to the complainant to entertain the matter relating to
the exemption from attending the court is very limited or it can be said
that the court has to take the relevant factors into consideration while
dealing with such matter.
8. What is required to be taken into consideration is that there
should be sufficient reasons for granting exemption to the accused from
appearance in the Court and for that submissions of the Ld. Advocate for
the Accused as well as Ld. S.P.P. for the C.B.I. is required to be taken
into consideration.
9. It is a fact that Applicant is sitting Home Minister in the
State of Rajastan. Not only that he has attended the court as and when
 ___ . ...!l!..·~:.: •.• ,.~,:u~·.i!...!~ .. :-........ ____ . ._,_ , 4 _ _. .~ ,~;;_;_;~~::, ;.: ----:~ -·~---- :~~1!..;_:.L.~
....

:)
4 7)JL/4
:-:: the matter was on board, except for some occasions wherein the court
has granted exemption from attending the court on giving sufficient
reasons. He has attained the age of 69 years. His Discharge Application
is yet to be heard. Considering the said aspect and .theI provisions of .

sec.317 of the Cr. P.C. and the law laid down by the Hon'ble Apex Court

.
in the abovecited authorities, I am of the view that presence of the
Applicant/Accused No.21 is not required at this stage. At the same time,
it is required to be seen that he shall attend the court as and when
required. Therefore, instead of .granting a blanket order for permanent
·.· exemption, attendance of Accused No.21 is required to be dispensed
with till the matter reaches at the stage of framing of the charge and/or
as and when directed by the court, whichever is earlier. With this
understanding and on the undertaking that he will attend the court at
the stage of framing of the charge and/or as and when directed by the
court whichever is earlier, the Accused No.21 is hereby exempted from
attending the court and, accordingly, I proceed to pass the following
order:-
ORDER
, ...
Application is allowed as follo\Vs :- '
' ..

The Applicant/Accused No.21 is hereby exempted from

appearing in the court till the matter reaches at the stage of
framing of the Charge artd/o:r the court specifically
dir~ct the Accused N9~21 to attend the court, whichever is

earlier.

(B.H. LOYA)
Special Judge for CBI /_,.·

Date:l0/11/2014 Greater Mumbai.

Dictated on : 10/11/2014
Transcribed on : 11/11/2014
Signed on : 11/11/2014
:.
::
:-
:::
~·
;:
!:•
!,,~
1:1

;1
;~
~i
 7{Er /I

IN THE COURT OF SESSIONS FOR GREATER BOMBAY

DISCHARGE APPLICATION (EXHIBIT-232)

IN
SESSION CASE N0.177 /2013 @ 178/2013
@577/2013@312/2014

Amit Anilchandra Shah 1

Residing at 10, Shiv-Kunj Society, 1
Near Sanghvi High School, Opp. ]
Hasmukh Colony, Naranpura~ 1
Ahmadabad-380013, Gujarat 1 ..... Applicant.
(Accused No.16)
V/s.

C.B.I., Mumbai . •... Complainant.

Respondent
Adv. Mr. S.V. Raju, Senior Counsel, with Mr. M.R. Amin for
Applicant/Accused No.16.
Mr. B.P., Raju, Spl.P.P. for the C.B.I.
Adv. Mr. Mihir Desai with Mr. Vijay Hiremath for original
complainant.
CORAM: The Special Judge
M.B. GOSAVI

DATE: 30tb December, 2014.

 2 ;jE(L
Order below Ex.232

1. This is an application for discharge u/s 227 of the Code of

I

Criminal Procedure filed by the Applicant/accused Amit Anilchandra

Shah from the offences punishable u/s 120B, 364, 365, 368, 341, 342,

384, 302 r/w 201 of the. Indian Penal Code, 1860. The CBI has filed- four

separate Charge sheets bearing no. 177/13, 178/13, 577/13 and 312/14

for t..h.e above offences.

a. Prosecution case in concise and chronology of

proceedings.

The allegations against the Applicant/accused in short are

that during the period between 2004 to 2006, when 9-e was the Minister

of State (Home), State of Gujarat, the police officers/policemen of Gujarcit

and Rajasthan entered ipto a criminal ~_on~piracy wfth his knowl~dge to

l.
.I ' ·,. '

nab and kill Soharabpddin - a dreaded qiminal involved· in cases of

extortion and killings in both States;

.In pursuance :tbereto;

. •, . they were .in . search of him. On
..

22/11/2005 said Sohrabrtddin along_ with his wife Kausarbi were

travelling in a luxmy bus of M/s Sangeela Travels bearing No. KA-05- F-

/

5051 from Hyderabad to Sangli (Maharashtra). The said-bus reached at

M.S. Dhaba near Zaheerabad and halted there at 11.30 p.m. for

'·
 3 7/7lf/J
refreshment. When the said bus was 15 kms away from Zaheerabad,

proceeding towards Belgaum, it was intercepted by. two TATA Sumos and
I

one Qualis Jeep. The bus -driver was made to stop the bus. Two persons

who were in plain clothes entered the bus, while one waited at the door.

They asked the driver to switch-on the internal lights and told him that

they were policemen and so wanted to take a search of the Bus. They

asked one of the passengers to get down, and took him towards the jeep.

The C.B.I. claims that this person was Tulsiram Prajapati, an accomplice

of Sohrabuddin. Mter some time, those policemen came back and asked

Sohrabuddin, who had occupied seat No. 29, to get down. His wife

Kausarbi also got down from the bus upon which she was asked to go

back in the bus, but she refused saying that she will not leave her

husband alone.

It is further alleged that Sohrabuddin, Kausarbi and Tulsiram

Prajapa~i were taken to Valsad. All of them had lunch in a hotel at

Valsad. Thereafter, Tulsiram Prajapati was shifted to another jeep and

was taken to Udaipur by Rajasthan Police. From there, Soharabuddin and

Kausarbi were taken to Bharuch by the Gujarat Police. They were kept in

Disha Farm-House near Ahmedabad tiH 25/ll/2005. On 25/11/2005,

Sohrabuddin alone was taken to Arham Farm-House and, thereafter,

 -------....,

4 7/~ ~~

lastly, he was taken towards GSB pole situated between Narol and Vishala

Circle. He was shot dead by the Gujarat Police, which the pr~secution

ailege that it was a stage-managed encounter. Some days thereafter, his

wife Kausarbi was also killed by the Police. Her body was burnt and

disposed of in a r~ver near village Illol.

. Thereafter, on 27/12/2006, Tulsiram Prajapati was killed in a

fake encounter by Rajasthan Police near Himmat-Nagar Railway Station.

Both Kausarbi and Tulsiram Prajapati were killed as they were eye-

wimesses to the. abduction of Sohrabuddin. It is specifically alleged that

this Applicant/Accused instructed the police to kill Sohrabuddin in a fake

encounter as he was a person who 'would have exposed an extortion

racket run by some senior Police-officers in the State of Gujarat, who

·,,
were said to·;be very dose to him.

Initially, the Anti-terrorism Squad of the Gujarat Police

registered a crime vide No. 5 of 2005 against Soharabuddin u/s 120B,

121, 121A, 122, 123, ~07, 186~ 254 ofth~ IPC r/w section 25(1) of the

Anns Act. After the investigation, a brief summary report was filed in the

Ld. Metropolitan Magistrate Court at Ahmadabad. On 1/2/2007; abated

' summary was granted.

i
-~
J/:."
~'.

f:
~
~
-·-~·-....,~-·-•• -·---~-·--·~-------·-----..,--. - - - - - -.. . --.·u--.- ------·
-~•·•·-
.-.'\.,

5 7/xr /s
In the meantime, Sohrabuddin's brother Rubabuddin had sent

a letter to the Chief Justice of India requesting therein to direct an inquiry

in the matter of his brother's death and disappearance of his sister-in-law.

On ·14/01/2006, Hon'ble Supreme Court directed the Gujarat Police to

investigate the matter. Accordingly, Gujarat Police registered a

preliminary enquiry bearing no. 66/2006 on 27/06/2006.

On the basis of the finding in the preliminary enquiry

conducted by the Gujarat State CID (Crime and Railways), a crime came

to be registered. They filed a charge sheet against Accused Nos. 1 to 13

i.e. D. G. Vanzara, then Dy. Director General of police, ATS Gujarat,

S.Rajkumar Pandian, Superintendent of Police,(ATS), Ahmadabad,

M.N. Dinesh, Superintendent of Police, Udaipur, Rajasthan and other

police officers, in the Court of Additional Chief Metropolitan Magistrate,

Ahmedabad.

When the aforementioned preliminary enquiry was going on,

Shri Rubabuddin filed a Writ Petition bearing No. 6 of 2007 in the

Hon'ble Supreme Court of India, which the Hon'ble Apex court disposed

of by its order dated 12/01/2010. In para 66 of its judgment, the Hon'ble

Apex Court while directing the C. B. I. to investigate the matter, observed

that:
,/-:--:·\

6 ?/F-/6
"Accordingly~ in the facts and circumstances, even at this
stage the police authorities of the State are directed to
handover the record of the present case to the. CBI ,
Authorities within a fort-night from this date and thereafter
the CBI Authorities shall take up the investigation and
complete the same within six months from the date of
handing over the investigation from the State police
authorities. The CBI authorities shall investigate all aspects
of the case related to killing of Soharabuddin and his wife
Kausarbi including the alleged possibility of larger
conspiracy. n

In pursuance to the above directions, the CBI, Special Branch,

Mumbai~ took up the investigation and registered a Crime vide C.R. No. 5

of 2010.

During the course of investigation, CBI recorded statements of

as many as 709 witnesses. They collected. number of articles and ,.

i.

documents, call data record (CDR) of the accused persons. After

completion of the investigation, they filed a Charge-$heet and ~

Supplementary . Charge:sheet in the · Additional Chief . Metropolitan

Magistrate Court, Room No. 2, Mirzapur, Ahmedabad. In the said charge-

sheet, the present Applicant/accused was shown by the CBI as Accused

No. 16 and was shown as "not arrested". ·

·~,

7 7/11:(7
The CBI thereafter issued to the Applicant/accused a

summons dated 25m July, 2010. In pursuance thereto, he appeared before

I

them and he was shown to be arrested and produced before the Ld.

Magistrate. The Ld. Magistrate remanded him to Judicial Custody. At that

point of time, the CBI did not seek his custody for interrogation, which

fact is not disputed by CBI throughout.

In the meantime, the Applicant/accused Amit Shah was

granted bail by the Hon'ble High Court of Gujarat in Criminal

Miscellaneous Application No. 12240/2010 by order dated 29/07/2010.

The CBI challenged the order of granting bail vide Criminal Appeal No.

1503 of 2012 and also filed a Transfer Petition (Criminal) No. 44 of 2011.

The Hon'ble Supreme Court dismissed the Criminal Appeal filed against

the bail order. However, the Hon'ble Court allowed the transfer

application. The order is reproduced below:-

" The Soharabuddin Case stands transferred to Mumbac~

Consequently, this Court is seized with the matter.

It is seen from the record that the CBI had registered a fresh

FIR in respect of the encounter of Tulsiram Prajapati. The

Applicant/accused Amit Shah challenged this action of the CBI by filing a

Writ Petition (Criminal) bearing No. 149 of 2012 in the Supreme Court of
'
 8
7/J:r: /8

India, contending therein that the CBI's assertion throughout that the

fake-encounter of Sohrabuddin, killing of Kausarbi and encounter of

Tulsiram Prajapati are closely connected with each other and are

incidents of a larger conspiracy and, hence, the CBI may be directed to

carry further investigation u/s 178(8) of the Cr.P.C., instead of registering

a new crime against him. His Vvrit Petition was allowed by the Hon'ble

Apex Court by Judgment and order dated 08/04/2013.

The Hon'ble Supreme Court while disposing of the Criminal

Appeal 1503 of 2012 and the Transfer Application bearing No. 44 of

2011, directed this Court and Registrar General of the Bombay High Court

to get the work of translation of th~ documents from Gujarati to English

and Marathi at the earliest and decide. the case on merit ·as early as

possible.

Accordingly, the translation work is completed, all the parties

are provided with the copies of translated documents.

2. I have already noted the allegations against the

Applicant/accused. It is the say of CBI that during the investigation

carried on by them as per tbe direction of the Hon'ble Supreme Court, if

was revealed that the plot to kill Sohrabuddin was planned by the Senior
/~:'\

9
7/E (9
Police Officers of the State of Gujarat and Rajasthan as per the

instructions of th.e Applicant/Accused. According to them, he is the main

conspirator. To sustain their aforesaid allegations, CBI relies upon the

following witnesses and material:

(1) Statement of Rubabuddin Shaikh PWl

(2) Statement of Naimuddin Shaikh PW2

(3) Statement of Ramanbhai Patel PW60

(4) Statement of Dashrathbhai Patel PW67

(5) Statement of Zahid Kadri PW 193

(6) Statement of Murtuza Khan PW-194

(7) Statement of P.B. Soman PW46

(8) Statement of Fatehsinh Rathod PW47

(9) Statement of V.L. Solanki PW163

(10) Further Statement of V.L. Solanki PW 163

(11) Allegations regarding one alleged letter

of Shri V.L.Solanki

(12) Statement of R.V. Acharya \ PW 3

(13) Sting Operation purported to be carried out by

Ramanbhai-Patel & Dashrathbhai Patel.

/~

iO
7/E{ ;o
'2
'-'· The CBI also relies upon the video recorded conversation

dated 22/1/2010, 1/2/2010 and 3/3/2010 in between Patel Brothers,

I

Ajay Patel, Abhay Singh Chudasama, Yashpal Chudasama. It also relies

on call data record of Mr. S. Rajkmnar Pandian, D. G. Vanzara and

Applicant/Accused in between 26/11/2005 to 31/12/2006. They further

relied on the noting of Smt. Geeta Johari dated 22/05/2007 wherein she

had striked out some words from her note, which are discussed in further

course of this ·order. Lastly, the CBI relies upon the statement of Rajneesh

Rai, I.G., who was supervising the investigation carried by CID (Crime)

Gujarat and was replaced by Smt. Geeta Johari.

b. Grounds raised by-the Applicant claiming discharge:

1. The applicant contends that he has been falsely in1plicated by

'-
the CBI for politkal reasons.
'

2. That the manner. in which the CBI proceeded t_o arrest and

seek his remand clearly shows their unfair, biased and

politically ll}Otivate.d,condtid~

3. There is no evidence on record to show his involvement in

the so called criminal conspiracy.

4. Statements of various witnesses recorded by the CBI during

further investigation are hearsay in nature and. such evidence

,r~

11
7/IZ2/IJ
is inadmissible.

5 Therp
• .A "'- ~·~
U no prim~-fart'e
.a..&..&..&. ,._.._ ..L '- .&.&-- tn'-' shour that thP Uhird
evirlenrP
,...,.,... .&& VY 1L '- ..L.I...L

person travelling in the bus along with Soharabuddin and

Kausarbi was none else but Tulsiram Prajapati.

6. Patel brothers, who the CBI names as their prime witnesses,

have given three different versions on three different dates

and if one considers them, they do not implicate the

Applicant/accused in the case.

7. The statements given by V. L. Solanki, G. C. Raiger and

Rajneesh Rai, do not implicate the Applicant/accused in any

manner even if they are accepted on face value, as they are

general in nature.

8. The CBI states that it is unusual and unnatural that the Home

Minister for the State is directly speaking with the police

officers during the period of both encounters shows his

involvement as one of the conspirators along with the

accused police officers. But the CBI, selectively collected Call

Data Record of that particular period only, ignoring the fact

that it was the practice of the Applicant/accused behg Home

Minister of the State to have a direct dialogue with the

 12 7jvr(n__
ground level officers more particularly when the law and

order situation in the State of Gujarat after the Godhra riots

was too delicate to handle. Moreover, only call records

without the details of actual conversation in between the

Applicant/accused and police officers, who are co-accused, -

cannot be said to be legal evidence to connect him with the

crime.

9. Statements of G. C. Raiger and Rajneesh Rai show that they

were removed from key posts, posts which required them to

supervise the investigation of the fake-encounter, only

because they did not follow the illegal instructions of the

Applicant/accused. So the applicant/accused contends that

\
such statements are very general in._nature, the witnesses do

not specify any instance or instruction and there is absolutely

no evidence to show that such instructions have actually been

given.

10. The cBI first decided to implicate this applicant in this case

for political reasons as' he was the then Home Minister of

State and the political party in power at the Centre wanted to

topple his government;

 13 7/~/13

11. The case is based on circumstantial evidence. The chains of

events and circumstances have not been established prima-

'
facie and there is absolutely no material on record to show

what could be the motive of the Applicant/accused to be a

part of the so-called conspiracy.

For all this reasons the Applicant/accused claims discharge from the

proseett tion.

c. Reply of the CBI.

i. The CBI filed a detailed say at Exhibit 232-A and resisted the /

application. It is contended that there is a strong prima facie evidence on

record to show the complicity and involvement of this Applicant/accused

in this case. At this stage, creditability and veracity of the statement of

witnesses cannot be considered as such stage would occur after the

evidence is recorded at the, trial. Statement of some of the witnesses ate

recorded by the Magistrate u/s 164 (5) of the Cr. P.C.

ii. The accused challenged the admissibility of the video

recorded conversation, but the same ·is not the stage to decide the

admissibility.

j:i. Smt. Geeta Johari's act of striking out a part of the note i.e.

'There is a systematic effort on the part of the State Government' indicates the
,0:\

14 7 /Fr /H
complicity of the Applicant/accused to destroy the evidence. Sudden

transfers of senior police officers Mr. Raiger and Rai from key posts~ when

they were supervising the investigation of the case, points dut that, this

accused was involved in conspiracy to tamper the evidence.

iv. It is observed by the Hon'ble Supreme Court while deciding

the SLP no. 9003/2010 that "we are not inclined to cancel the bail

granted to Amitbhai Shah 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." It indicates that even the Apex Court was of the view

that there exists prima facie case against the accused.

v. The evidence and matepial on record clearly establishes prima

facie the case of the applicant's involvement, hence his application for

discharge 'may be rejected.

4. I have gone through the charge sheeVsupplementary charge 1

sheet. I have ~lso p:tinutely gone through the statements of all the

witnesses, the documents / and · the material on record. I heard the

submissions of the Ld. Co~l Shri S. V. Raju and Ld. Adv. lVf. N. Amin on

behalf of the Accused/applical)t,

/·, .·
I also heard Ld. Spl. Prosecutor for-the

CBI B. P. Raju at length and submissions of Ld. Adyocate Mr. Mihir Desa~
 15
7f_M_Jrs
appearing on behalf of the original complainant.

a. Submissions on behalf of the Applicant/accused:

The Ld. Counsel rested his submissions mainly on two

aspects, first he emphasized on the manner of the Applicant/accused's

arrest, his production before the Ld. Magistrate and his remand as

according ~o him, he was implicated in this case falsely and only for

political reasons, and, secondly, on facts and evidence appearing against

the Applicant/accused.

The counsel for the, Applicant/accused placed the following

facts, which, according to him, forms part of the pleadings in the

Applicant's bail proceedings before the High Court and the Supreme Court

and also in the proceedings of Writ Petition (Cri.) No. 6!2007 before the

Hon'ble Supreme Court and are never controverted by the CBI since these

fact's are matter of record.

24.07.2010
~ The CBI issues summons 2 days before filing of
the Charge Sheet giving him 24 hours.

~ The applicant-accused, on receipt of summons

from the CBI, appears before CBl through his
lawyer and requests for list of questions since
issue involved was more than five years old then.
 l6 7 frc /~t

>- The request is refused by the CBI.

25.07.2014
}> The Applicant-accused cooperates with the
investigation and appears before CBI at 2.00 PM
on 25.07.2010 for being 'questioned' as indicated
in aforesaid summonses.

>- Since the CBI had filed a Charge Sheet on

23.07.2010 and found m~thing in investigation
against the applicant-accused on which
applicant-accused can be 'questioned' and since
CBI wanted merely to arrest the applicant-
accused, the CBI arrested the applicant-accused
at the staircase of ·'.the"'-.CBI offic~ even before he ·(·
.
i.
enters the office of CBI and· took him directly to
the residence of the Magistrate.

>-- ·CBI prO<luces · the Applicant/a.ccused before the

Ld. . Magistrate · and requested that the
Applicaht/a~cused .be remanded to judicial
custody.

i
~

''
i
l

I
.( .
~')..
' . \

7 /_M_ /17
17

>- CBI mentions in the said production

· memo/pursis that investigation is complete.

>- CBI does not utilize even statutory period of 24

hours either to interrogate the applicant-accused
or to question him on any issue.

>- CBI does not seek police remand of the

applicant-accused dearly suggesting that there is
no material against the applicant -accused upon
which his interrogation in police custody was
found to be necessary even by the CBI which
could have justified arrest.

>- The applicant-accused co-operated with the

investigation and appeared before CBI at 2.00
PM on 25.07.2010 for being 'questioned' as
indicated in aforesaid summonses.

>- ·CBI applied to the Magistrate for interrogation of

the Applicant-accused while in judicial custody.

26.07.2014
>- Even though the CBI did not utilize the statutory
right of interrogating the applicant-accused for
24 hours after his arrest, the CBI filed the
application for interrogation only in view of the

. i
~~.

20
·7/ ~ {t-o
Further, the Ld. Counsel submitted that the said bail order

was challenged by the CBI in the Apex Court; however, the Hon'ble Apex
I
Court did not interfere with the aforesaid order, which order of the Apex

Court dated 27/09/2012 is produced on record.

Thereafter, Ld. Counsel Mr. Raju appearing along with Ld.

Advocate Mitesh Amin for the Applicant/accused made submissions on

the facts and evidence on record. It is the case of the Applicant/accused

that the CBI has concocted the evidence by fabricating the statements of

witnesses to somehow implicate the Applicant/accused for extraneous

reasons and 'purely on political considerations without there being any

prosecutable material even remotely connecting the applicant/accused to

the offences in question. He further submitted that the CBI has either -.
·-~----,

pressurized or lured the witnesses to implkat~. the Applicant/accused for

political reasons.

Accordingly, Ld. Counsel .took me through the relevant

record. He submitted t4at it is riot in dispute that the firing in the Patel

brothers' office took place on16/12/2004. It is the CBI's case that late

Sohrabuddin had directed his henchmen.Sylvester and Tulsiram Prajapati

to cause this firing~ without ,~ausin,g injury to any ,person in the office. The

receptionist lodged· a -complaint of this firing in Navrangpura Police

.'~\

19
7(JJ-/t7
case of the Applicant/accused that all arguments and contentions· which

are raised in the present application below Ex."'Jibit 232 were raised before

the Hon'ble Gujarat High Court and, relying upon all the documents

which are relied upon in the present proceedings and the Hon'ble High

Court, after hearing the parties including the CBI, was pleased to release

the Applicant/accused on regular bail. The Hon'ble High Court of Gujarat,

in its detailed speaking judgment, categorically held that the CBI is

unable to show any prima facie case against the Applicant/accused.

I was taken through the said judgment and order of the Hon'ble High

Court of Gujarat by the Ld. Counsel for the applicant which is placed on

record vide list of documents as Document No. 4 in Exh. 233 filed along

with the present application(Exh.232). The Ld. Counsel for the

Applicant/accused read the said detailed speaking judgment and order of

the Hon'ble High Court of Gujarat in which the Hon'ble High Court of

Gujarat was pleased to analyze the evidence of the CBI. It is submitted

that the findings recorded by the Hon'ble High Court of Gujarat are after

considering the entire investigation material placed by the CBI. He

specifically pointed out paras 94 and 95 of the Judgment of the Hon'ble

. '
Gujarat High Court.
-~>..

;_I
Jf-11-/ 1 ~
I,,
.0

political pressure in view of the electronic/print

media reports questioning the CBI and the
intentions of the Central Government ,as to why
the applicant-accused was initially summoned
and subsequently arrested if his interrogation
was not necessary.

> In spite of ti"'le fact that three days being granted

for interrogation, the CBI interrogated the
applicant-accused only for a total period of three
hours in the aforesaid three days,

> Thereafter, CBI, visibly under the political

influence, sought police custody of the applicant-
accused. l}pon such a remand being granted, the
applicant-accused was fully interrogated for two
days in police custody.
·· .... --

'Accordingly, Ld. Counsel for the Applicant/accused submitted

that the Applicant/accused applied for regular bail first befQre the Special

Court·for CBI at Ahmed~bad, G11jarat, and having failed to get an order of

' ... ·:

regular bail, the applicant approached the Hon1>le High Court of Gujarat

by filing Criminal Misc. Applkation No.l2240 of 2010. The Hon'ble

High Court of Gujarat, vide judgment and order dated 29 1h Octo'Jer 2010,

was pleased to r~lease the Applicant/accused on regular bail. It is the

~----~-------·-·-- -·-
 21 7 /.J?L/7-/
Station at Ahmadabad. It is also the say of CBI that Soharabuddin was a

dreaded criminal &J.d was involved in various cases, including one murder
I

case of another criminal Hamid Lala. Soharabuddin was wanted in all

these cases and so in such a situation, Soharabuddin might have been

killed in a Police encounter or othenvise, then how the Applicant/accused

can be said to be the part of such conspiracy.

Further, he pointed out the statements of Ramanbhai Patel

and Dashrathbhai Patel on record. According to him, the CBI has recorded

three statements on three different dates. In statement dated 16/03/2010

which is the first statement, they stated that when accused no. 1,

Mr. Vanzara was making an enquiry with them, he received a phone-call.

He told them that Mr. Amit Shah was on line. As per their say, Amit Shah

insisted them to give the statement as per instructions of Mr. Vanzara. In

the second statement which is dated 27/03/2010, they stated that they

learnt from some police officers that Mr. Amit Shah would implicate and

d~tain them under the Prevention of Anti-Social Activities Act. To avoid

this detention they had a meeting with the Accused no. 15 Ajay Patel

through one Jayeshbhai Shah. This meeting was held in Rifle Club

Ahmadabad. In the same meefng, Ajay Patel told them that Amit Shah

asked them to pay Rs. 1.5 crore for not passing detention order. They

···--··- -. ···---~-- -------- --~------- -------=---·

 ~
(' ' .. \

22
7/ Jr{ ;;_~,
further stated that on 16/05/2006, he paid Ajay Patel a sum of Rs. 25

Lakh. On 20/05/2006, further amount of Rs. 25 Lakh was paid to Ajay

Patel and on 31/05/2006; amount of Rs. 20 Lakh was paid.

The Ld. Counsel further submitted that, Ramanbhai Patel stated

that in November, 2006, he had a meeting with Applicant/Accused ih

which he said that Sohrabuddin was killed because he had closed his

option to be alive. He died due to some political equations which he

would not understand. According to Ld. Counsel, at any stretch of

imagination these statements are not enough to implicate the Applicant in

Sohrabuddin encounter case, which had admittedly taken place way back

in December, 2005. He submitted that the CBI in order t9 fill up the gaps

and lacuna in their earlier statements u/s 161 of the Cr. P. C., 1973, got
·-..,.
recorded the ·same u/s 164(5) of the~ Cr. P. ,C., 1973 before the Ld.

Metropolitan Magistrate, Mumbai. He pointed out that, these statements

u/s 164(5) Cr. P. C., 1973 were recorded almost one year after their last

statement. As _per Ld. _Counsel for Aj)plicant/accused, a perusal of the

periodically improved statements of these two witnesses would clearly

establish, withoutany trial, that these two witnesses viz. Ramanbhai Patel

and D?shrathbhai Patel are lying. To demonstrate this, Ld. Counsel to_ok

me through the Patel brothers' statement recorded by the CBI u/s 161 Cr.
 ,---.-..,
!. ·1
,·./

7/K( t-J
23

P. C., 1973 in earlier point of time and their statement recorded before

the Ld. Metropolitan Magistrate u/s 164(5) Cr. P. C., 1973 after a year.

They are produced in the application in a tabular form, which are

reproduced hereunder:-

Sr I Earlier Statement Improvement made I Remarks

No I before CBI u/s 161 in statement u/s
r.f tho rr Dr
'-'~ ~.~.~ '-l.l.. • .&. • '--' 164 of t.~e Cr.PC.

1 "On 15.12.2005 I On 15.12.2005 I Both the statements

ATS, Ahmedabad ATS, Ahmedabad u/s 161 and 164 are
called me and called me and my false on the face of it
Dashrathbhai in the younger brother since both Patel
ATS Office. During Dashrath Patel and Brothers have filed
our interrogation we interrogated us and writ petition
had disclosed the recorded our contemporaneously
truth before the statement. We on 12.12.05 before
police and they were disclosed all the Hon. High Court
recorded our the truth before which was amended
statement them but they were I on 16.12.05. In the
accordingly. But they not happy with our said petition filed on
insisted that we give disclosure of truth. affidavit before the
statements as per They insisted us to Hon. High Court at
their wishes. We had give statement the relevant time viz.
refused to dt? so. statements as per contemporaneously
They threatened us their wish but we the following
with arrest if we did had refused to do averments were made
not give statements as I so. They threatened I regarding meeting
-
t'-\
1·, '·,

7/-Er/2~
24

I[ Ithey
I
wanted. After l~1~
I
with arrest i£[I dated1S.l2-.os:- 1
'
some time a phone I they should not
1
call came on the cell give statements as
"The petitioners were
1 Iphone of Shri per their wish.
called upon by the
I I Vanzara. Shri After some time a
respondent nos.2~ 3
I Vanzara was talking phone call came on
· and 4 on 14.12.2005_
Ivery
i
respectfully to cell phone of D.J.
and were made to sit in
someone and was Vanzara. He was
their police station for
repeatedly calling the talking with
3-4 hours. On
caller 'Saheb' and respectfully and
'Sir'. He was talking often and often · 15· 12.2005: the
petitioners are nuain
Sohrabuddin's addressing as --o·

encounter, firing in Saheb, Sir. After caUed by the aforesaid

my office and about some time he was respondents and made
me. After some time talking about to sit in the police
he put his hand on Sohrabuddin station for whole day.
the mouth piece encounter and TiU this time, they are
portion of the . cell firing in my office -made to sit in the
phone· and told me and ·about me. police station and they
that Shri Amit Sh.clhAfter ·some time he are arrested by the
Minister of State, put his -hand on the respondent no.2 to 4
Home was on line - ' m·-0 ·uth· . . u/s 179 o+
ptece 'J
IPC which-
-

and handed over the P~rtion _ of -the cell pertaining- to refusing·

cell phone to me.. - 1 phone
. . and
.. told
.. me to answer the questions
recognized the voice; that Amit Shah, to the public servant
it WaS Amit Minister of State who is authorized to
Shri
' ask the question. "
. .

Shah indeed on the Home was on line

• After this· /

online and he and· ·handed over

contemporaneou
forcefully directed me the cell phone to
s stand before
that I should do and ·me~. I recognized
this Court, the
~->\

25
7(H/7---S
gzve my I
statement his voice. It was Patel brothers
Shri Vanzara Amit Shah on the try to implicate
wanted .... " line and he the, applicant-
forcefully directed accused in their
me that I should do statement before
and give my CBI after 5 years
statement as Shri while referring
I

Vanjara wanted j to the very same

I
otherwise I would · meeting dated!
be in trouble and 15.12.zoo5. 1

you will be also • This ·

encountered like demonstrates a
Sohrabuddin .... " clear intention
to implicate the
applicant-
accused falsely
as per the pre-
decided script
of CBI.

2. I "In this meeting Shri "Yeh Sare paise • On one of the

A jay Patel had Ajaybhai ' Patel three dates
informed that Shri Amltbhai Shah mentioned in
A mit Shah had (MOS) ki taraf se the statement,
demanded Rs.1.5 hamari office se ho viz. 20.5.06 on
crores to settle the gaye. Ek din jab which Rs.25
entire issue. We had Ajaybhai Patel lakhs are
told Shri Ajay Patel paise lene aaye aae alleged to have
again that since . we tab unhone ye been paid to
were innocent, why paise ke bare me Shri Ajaybhai
 r

26
7/J!J:{Lt

I I we should pay such a j meri Amitbhai 1 Patel, who was

I huge amount Shri IShah (MOS ) ki I m Singapore
IAjay Patel had said saath baat karai I and 1there is an
that if you do not gayi. Tab mame immigration
pay this arnount, Aminbhai Shah ki entry in his
then get ready to go awaj pechani. passport .
. to jail for one year Hamse 90 lakh
I
I under PASA, and ntpaiya dene ka tai • Since the
you would get no kiya tha magar statement u/s
relief from any court ham ne 70 lakh 161 pertaining
also. Keeping in view rupiye hi us ko to Ajay •Patel
the marriage of my chukaaye." did not connect
niece, I and my the applicant-
brother decided to accused, one
settle the matter and sentence (in
after negotiatio~ it Hindi) is added,
was decided to pay as a subsequent
Rs. 90 lacs to Shri improvement,
Amit ~'Shah through falsely stating
Shri .Ajay PateL On about the
16.05.2006 we had telephonic
paid Rs.25 lacs, conversation
thereafter Rs.25 lacs with ' the
on 20.5.2006 ·and applicant-
Rs.20 lacs accused.
· on.31.05.2006 to
Shri Ajay PateL
//

These amo:mts were

collected by Shri
Ajay Patel himself·
(>~
.. ·'

27
7 /JL !~1
from our office on
behalf of Shri Amit
Shah. I am so sure
about these · dates
because we are
builders and we have I

to do a lot of cash I
I Itransactions, so I
keep a 'kachu'
account of such
payments. I also state
that we had not paid
the remaining Rs.20
lacs because in spite
of paying total Rs. 70
lacs, the cases
against us are yet not
closed"

"After paying Rs. 70 lacs as above to. Shri

Amit Shah through Shri Ajay Pate4 I and
Dashrathbhai had met Shri Amit Shah six-
seven times in the latter half of 2006. Two
of these meetings were arranged by Shri
Ajay PateL Remaining times~ we had fixed it
ourselves directly by speaking to Shri Amit
Shah. Mostly we used to talk regarding the
issue of releasing_ our properties from bank
mortgage. Once when I and Druhrathbhai
were meeting Shri Amit Shah at his ~ouse in
',.--".,

~~-'
I fB { ],6
,.
28
I
I Ahmedabad, I suddenly felt bad about how
we were harassed at his behest in the past I
So I could not contain my_self. and had asked
I
him why_ we were harassed so. much in the .
case of. firinz on our own office by_
Sohrabuddin's &am!z and that why_ did
Sohrabuddin need to be killed when he was .
workiru?: closely_ with Abhay_ Chudasama.
Shri Amit Shah had smiled and said that
-
"ene rakhvano vika[Q ene [aate bandh kari .
.,
nakhelo. Ane rarKeeya . .sameekamo . ni
[aruriy_ato hox_e1 tame badhu na sam[hoz
Java do"1 meani!Jg, that Sohrabuddin had
himself. closed the oetion ot kee12.i!1E. himself.
alive and that the 72.olitical eguations and
-
needs we would not be able to understand."

'

.3 In . the statement This is patently false.

'·,
.,
. .,
dated 16.3.2010 <
Kindly see page 225
Raman ·Patel makes of the paper book
the folloWing which contains order
averments: !
dated 19-.12.2005. It
clearly shows that
"Shri' Vanjara ·had Patel Brothers wanted
also threatened us Jo to withdraw the
withdraw the petition petition while ·· State
which ·we had filed Authorities including. "
. i
/
before the/ Police Officers who
Honoruable High·. were party to the
Court of Gujarat· ' '
petition had strongly

-;-c••-,c~· -::-- -- o,..-,.,....,.....,.,.,..,..,... ~ .. ~ ...-.._~, ____ ,

,.._,_,,,.,,.,.,..,_.,.,...,.~-~,._-~,-r
0
• , ·- _ __,_.._..,_~•
 :~

30 7/Ir/3 0

Sohrabuddin, Kausarbi and Prajapati cannot. relate back prior to the

alleged incidents.
I

Thereafter, the Ld. Counsel took me through the statements of

Azam Khan, Rubabuddin, Naimuddin and Zahid Khan. They stated

nothing against the Applicant/accused. However, Zahid Khan stated that

the accused S. Rajkumar Pandian threatened him, asking him to

withdraw the petition against the police; otherwise he would be killed in

an encounter like Soharabuddin as directed by Applicant/accused.

However, admittedly, Applicant/accused never met and spoke with this

witness, hence; his statement cannot be considered. Moreover, his petition

in the High Court was not in resp'ect of Soharabuddin encounter case but

in respect of the Godhra Riots, which has no relevance with this case.

Then the Ld. Counsel took me tjrrQugh the statements of three

police officers on which the CBI relies. They are: .Gyanchand Raiger,

Vasant Laljibhai Solanki and Rajendra Ac?arya. As far as statement o!

V. L. Solanki and Raje~dra Acharya is concerned, he submitted that the
\

facts stated by these witnesses were heard by them from Smt. Johari who
~-

told them, that the Applicant/accused held a meeting with Mr. Raiger,

Mr. P. C. Pandey and Smt. J0hari, in which he allegedly asked them as to

~ .
how Mr. Solanki could write a report, which will cause trouble to senior
;~\

31 7/Ir/3 I
Police Officers, Mr. Vanzara and Mr. Pandian in Soharabuddin encounter

case. At1d so, the Applicant/accused instructed Mr. Raiger and Smt. Johari
I

to ask Mr. Solanki to carry certain changes in the report. According to the

Ld. Cmmsel, the statements of Mr. Solanki and Rajendra Acharya are

hearsay in nature as it contains nothing which indicates that they had

attended the said meeting. The report about which the instructions to

carry changes were allegedly given is not on record. The Ld. Counsel for

the applicant/accused, however, contends that even if the statement is not

discarded as mere hearsay version and is examined in detail, then also,

the said statement is false, which can be demonstrated to be false without

any probe or trial on the following grounds:

(i) It is evident on perusal of the judgment of the Hon'ble

Supreme Court dated 12/1/2010 passed in Writ Petition (Cri.) No.6 of

2007 and other proceedings, various interim orders passed by the Hon'ble

Supreme Court prior thereto that the Hon'ble Supreme Court was

monitoring both the preliminary enquiry and subsequent investigation

conducted into Sohrabuddin & Kausarbi murders offence. Shri V.L.

Solanki has filed seven Action Taken Reports (ATR) before the Hon'ble

Supreme Court in the year 2007 and, in none of the aforesaid ATR filed

by him, he even remotely mentioned about any such alleged -meeting ,

,.~
··;.,l

32 7 /J?r: /3 2--

convened by the Applicant/accused in November 2006 or at any given

point of time. Such an allegation comes for the first time in 2010 before

the CBI which, according to Ld. Counsel for the Applicant/acctlsed, acting

with political directions to somehow implicate the Applicant/accused in a

serious criminal charge. Ld. Counsel for the Applicant/accused has

vehemently contended that the entire record of the case, including the

reports filed by Shri V.L.Solanki and others, were officially handed over

by the Gujarat State CID (Crime & Railways) to the CBI after the order

dated 12-01-2010 passed by the Hon'ble Supreme Court. The CBI was,

thus, having these reports of Shri V.L.Solanki in its custody. While filing

charge sheet against the Applicant/accused, the CBI has withheld this fact

from the court that Shri V.L.Solanki never made any such··

complaint/nev~r gave any such information i~

.- ' his reports to the Hon'ble
~- '

Supreme Court.

(ii) The assertion of such an alleged meeting about which Shri VL

Solanki learnt from Smt. Geetha Johri, IPS; comes for the· first time in his

statement before the CBI on 2'lth May 2010 and does not find place in any

of the case diaries maintained by him. Ld. Counsel for the Applicant-

accused submitted that the Applicant/accused·has raised this factual point

right· from the inception \'iz. filing of the bail application and the CBI has
'
r-:,
)

33 7/:Er-/33
neither denied the same nor has produced case diaries of Shri V .L.Solanki

to refute this contention.

(iii) As per the statement of Shri VL Solanki, a meeting was

convened by the Applicant/accused in the last week of November 2006,

in which it is stated that the Applicant/accused was very angry on Shri VL

Solanki on the ground that 'how a Police Inspector level Officer implicates

senior police officers'. The said statement is false according to the

Applicant/accused because, the Preliminary enquiry was at a very initial

stage and none of the officers, much less senior IPS Officers were

emerging as the accused, there could be no question of the

Applicant/accused being angry with Shri V.L. Solanki as alleged by him

belatedly to oblige CBI in its sinister design to falsely implicate the

Applicant/ accused.

(iv) This, according to Ld. Counsel for the Applicant/accused,

establishes beyond doubt that the statem~nt of Shri VL Solanki is false for

some other reason and is pressurized and no trial would be necessary to

arrive at that conclusion.

(v) Even if it is accepted that such instructions were given by

Minister of State (Home), it does not amount to any criminal coTispiracy

of destroying eVidence. The Ld. Sr. Advocate emphasized that even if one
0'\

....t
Y+
.,1 j.Ja-
1-rn-f') lI
.:J

accepts that Applicant/accused said that "how ML Solanki could w-rite a

report, which will cause trouble to Sr. Police Officers, Mr. Vanzara and

Mr. Pandian in Soharabuddin encounter case" it cannot be said that it

shows his part in the conspiracy.

(vi) Further, the Ld. Counsel took me through the part of the

statement of V. L. Solanki, where he states that he sought permission to

go to Udaipur to record the statement of Tulsiram Prajapati. According to

him, it was never granted. He alleged that his requisition seeking such

permission must have been destroyed. He had asked such permission from

G. C. Raiger, ;the then Addl. DIG. In the meantime, Tulsiram Prajapati was

killed in an encounter on 28/12/2006. Thereafter, on 5/01/2007,

permission was granted knowing well that Prajapati was dead. According ·

to Ld. Counsel Mr. Raju, even if one accepts, V. L. Solanki's statement as

it is, it indicates two things clearly, one, that Applicant/accused did not

have a direct dialogue with Mr. Solanki and, two, that the statement is

contrary to an9ther statement on record which is of Mr. Raiger who states

in his statement that on 05/07/2007, Smt. Johari had asked permission to

go to Udaipur along with Mr. Solanki to interrogate Tulsiram Prajapati

·and Sylvester, but since Prajapati was dead, permission was granted fo

record statement of Sylvester only.

 35 7/~(>S
(vii) Mr. Raju further drew my attention to one Rajendra

Acharya's statement and submitted t.hat, Rajendra Acharya does not

I

implicate the Applicant in any manner. He states that in September, 2006,

V. L. Solanki had come to meet Smt Johari. Mr. Solanki took a plain paper

from him and wrote an application seeking permission to go to Udaipur.

He came back from Smt. Johari's cabin and told him that Srnt. Johari

asked him to change the status report which he denied. As per the Ld. Sr.

Advocate, this is hearsay. Further, Mr. Acharya was not present in the

cabin of Smt. Johari.

(viii) Lastly, Ld. Counsel Mr. Rajn took, me through all three

statements of Mr. G. C. Raiger. In the first statement dated 26/07/2010,

Mr. Raiger did not state anything about his meeting in between the

Applicant, P. C. Pandey and Smt. Johari, in which some alleged

instructions were given to change the report. He only stated that he was

then DGP Homeguard, but was holding additional ahatge as Adll. DGP

CID crime till 29/1/2006. He was uncomfortable with his additional

charge and refused to follow the illegal instntctions of the

Applicant/accused about Sohrabuddin Encounter Case. According to the

Ld. Cm·.nsel Mr. Raju, the statement of Mr. Raiger is absolutely vague and

cryptic based upon which no criminal charge can be framed on anyone,

 36
7 /"Er(J6
I
much less a serious charge under Section 302 of the IPC. Even if the said

statement is believed to be true at this juncture, it does not even remotely

connect the Applicant/accused with the alleged conspiracy, since the only

allegation made by Shri G.C. Raiger on the next day of the

Applicant/accused being arrested by the CBI is to the effect that ·'the

respondent was giving illegal instn1ctions.' The Ld. Counsel for the

Applicant/accused has vehemently submitted that such a statement is too

vague to be made th~ basis of fastening a very serious criminal charge

upon anyone. It is contended that the term "illegal instructions,, is not

only vague but is subjective. An officer may consider even a legal

instruction to be illegal based upon his subjective view of the instruction.

Such a vague and cryptic assertion without evidence specifying as to~

which instructions- he considered to be_ legal and/or illegal, a serious.

charge of criminal offence cannot be framed upon the Applicant/accused

more particularly when_ there are inbuilt and intrinsic discrepancies in the

statements ofShri G.C.~·,Raigar and Shri V.L Solanki.

(ix) Mr. Raiger's second statement was recorded on 06/07/2011,

i.e. almost a year after his first statement. In that statement, he stated that

there was a meeting with, the Applicant in the first week of December,

2006 ·and, there was no meeting in September, 2006 as alleged by

 ,--,_
,', ,\

37
7 /.E /37
Mr. Solanki.

(x) The third statement of Mr. Raiger was recorded on

20!07/2012, ie. one year after his second statement. He stated that he

was told by the Minister of State (Home), to protect officers Vanzara,

Pandian etc. to which he denied and so he was transferred from the post

of Addl. D. G. Crime.

(xi) Ld. Counsel Mr. Raju submitted that even if all the statements

of Mr. Raiger are accepted as they are, what we could gather is that, in

one meeting the Applicant/accused instructed Mr. Raiger, P. C. Pandey

and Smt. Johari to see that the police officers Vanzara and Pandian

should not be roped in unnecessarily. The Ld. Counsel submitted that

C.B.I. adopted very novel methods to book the Applicant/accused in this

case for political reasons. The method was to call Sr. police officers and

ask them to give statement against the Applicant and, upon their refusal,

to make them accused instead of witness. P.C.Pande and Srnt. Geeta

Johari refused to give statements to the CBI and, hence, they are made

accused in the case. Whereas, Mr. Raiger and Mr. Rai gave statement as

the CBI directed and, hence, they are made witnesses.

(xii) Then the Ld. Counsel for the Applicant/accused made

submissions regarding the act of Srnt Geeta Johri, who was the then

'-
0

38 7 /Iir {3 r
Inspector G~neral of Police, State of Gujarat. The Ld. Counsel argued that

the reliance on the 'note' of Smt. Johri, dtd. 22/05/2007 is totally

misplaced and does not mention either directly or indirectly

name/reference of the Applicant/accused and mentions about some

interference being made by some agencies in her investigation. He further

submitted that the CBI has ·misconstrued the note alleging a.n imaginary

and presumed pressure of the Applicant/accused though it does not

mention even his name.

(xiii) According to him, the said note has only reference to the

question whether one constable Nathuba Jadeja should be made a witness

ot. an accused. CBI maliciously has twisted the said note with a view to

implicate the Applicant/accused.

(xiv) ·Thereafter, as to the audio r~cording of a conversation

alleged to have happened in between two co-accused Dr. N. K. Amin and

'·

N. V. Chauhan, Ld. Counsel submitted that it is stated to have been

recorded while both tJ?,e above ·accused·persons were in jail. He pointed

out specifically that in the entire audio recording, there is no reference of

the Applicant/accused at all. ·

(xv) Then, the Ld. Counsel submitted in dP.tail on the Call'"Data

Record (CDR) which the· CBI relies upon to implicate the

-0.
)

39
7/:rr: 3?r
. Applicant/accused. His submissions can be summarized as under:-

• The Applicant-accused was t.he Home Minister of the State

and it is his case that he was always in touch with field level police

officers directly, which was his style of functioning. The CBI is unable to

dispute this statement and no material is produced to show that the

applicant was found to be communicating with only some of the police

officers of the State who are involved in an offence.

• CBI has, very conveniently, taken the CDRs of the limited

period during which L'ite offence took place. If the CBI would have taken

CDRs of two years prior and two years after the offence, it would have

come on record that the Applicant/accused, as the Home Minister of

State, used to remain in touch with all field level officers and not only

with the accused police officers ..

• The CBI admittedly do not rely upon fu1Y recorded

conversation of the Applicant/accused with other police officers, but

merely relies upon the call details showing the incoming and outgoing

calls between the Applicant/accused and the police officers who are

allegedly involved in the commission of offence. The CBI has chosen to

rely upon the call rl.etails of one month which is proximate to the date of

commission of the offence. It has been the specific case of the

(
(~

40
7/xr/ yo
Applicant/accused all throughout before all forums including the Hon'ble

High Court of Gujarat and the Hon'ble Supreme Court that if the CBI
I
examines his call detail records two years prior to the incident in question

and till he worked as Home Minister, the CBI would find the same pattern

of telephone conversation bet<..veen the Applicant/accused being the Home

Mir.ister of State and all field level police officers including the three

officers who are alleged to have been involved in the offence. The CBI is

unable to deny this very fact though repeatedly asserted by the

Applicant/accused before all forums including this Hon'ble Court.

• So far as instances of call exchanges which are mentioned in

the charge-sheet is concerned, the Applicant-accused has given the

specific reasons. of telephonic calls ·which are not disputed by the CBl ·
· ... __

though they contained very legal facts. . .,

• While countering the Audio-Video records of conversation

between the Patel brothers and the Applicant/accused, so also other

accused, Ajay Chudas~, Yashpal Chuc:lasama and Ajay Patel etc., the

Ld_- Counsel submitted that despite the fad the conversation was recorded

clandestinely by the Patel brothers, no evidence implicating the

Applicant/accused in whatsoever manner could be brought on record on

this basis.
 (~.

41 7/Z(~t

Legal Submissions

Thereafter, the Ld. Counsel made submissions on legal issues.

I

He submitted that there is no direct evidence showing involvement of the

Applicant/accused as one of the conspirators. The CBI relies on the

statement of co-accused and the statement of the witnesses which are

hearsay in nature. There is nothing on record to show that there was

meeting of minds in between the Applicant/accused and the other

accused who, are allegedly involved in the fake encounter of

Sohrabuddin, Kausarbi and Tulsiram Prajapati. It is true that there can be

hardly any direct evidence of a conspiracy; hence, the provisions of

section 10 of the Indian Evidence Act, 1861 allows the Court to consider

the statement of the co-accused about the conspiracy. But for that, it has

to be shown from some evidence on record that the accused entered into

a criminal conspiracy with other accused and then the statement of co-

accused can be used in corroboration.

To substantiate his argument, Ld. Counsel relied on ruling in

the ca_se of State of Gujarat v/s Mohammad Atiq and Ors. ((1998) 4

SCC 351), Bhagwan Swaruplal Bishanlal v/s State of Maharashtra

( (1964) 2 SCR 378), Saju v/s State of Kerala ((2001) 1 SCC 378).

He submitted that the other evidence relied on by the CBI like the

'•r •--,,.-·,·~--~- ',_,__,_~,--r--

 42 7(Kf ~.,I-
statements of P. B. Seman, Mahendra Singh Zala and Murtaza Khan, are

statements of witnesses based on their hearsay knowledge and, hence, is

not legal evidence and cannot be relied upon. A bare reading of the

statement of Murtaza Khan shows that it merely reproduces the script

prepared by the CBI. In support of this contention he relied upon the

ruling in the matter of Shaikh Alimunddin Ahmed v/s State of West

Bengal (AIR 1971 SC 1371)~ Jent~la Vijayvardhan Rao v/s State of

Andhra Pradesh ((1996) SCR (J) (SC) 273).

Ld. Sr. Advocate Mr. R'aju further submitted that now, it is

well settled that what factors are to be considered while deciding an

application for discharge u/s 227 of the Cr. P. C. According to him, if the

material on record only points out that there is merely a suspicion to '
~

. show the involvement of the accused,·. then, h~ cannot be charged and put

for trial. If there is a strong suspicion about the commission of the

offence, the charge can be framed but if the accused gives a plausible

explanation about the .. evidence appearing against him, he has to be

discharged. Considering the material. on reCord, two views are reasonably

possible; even then a Charge cannot be framed. According to him, in this

' case, there is no admissi~~e evidence on record to frame thP. charge

against the Applicant and, hence,. he may be discharged. He relied on

(-~-..,,

43
7(:K/~3

various rulings in the matter of Babubhai Bokhiria v /s State of Gujarat

((2014) 5 SCC 568), Dilawar Babu Kurne v/s State of Maharashtra

I

((2002) 2 SCC 135), Century Spinning and Manufacturing Company

vIs State of Maharashtra ((1972) 3 SCC 282), State of Karnataka v /s

L. Muniswami ((1977) 2 SCC 699), Union of India v /s Prafulla kumar

Samal ((1979) 3 SCC 4), Yogesh Joshi v/s State of Maharashtra

( (2008) 10 SCC 394) and R. K. Narayanan v/s State of Kerala

( (1995) 1 sec 142).

The Ld. Sr. Counsel Mr. Raju also submitted that it is not in

dispute that the Applicant/accused was then Minister of State, Home.

Whatever instructions he gave to the Police-Officers, wen~ given in

discharge of his official duty as a Minister and public servant. Court of the

first instance ought not to have taken cognizance of any offence against

him for want ofsanction for the prosecution u/s 197 Cr. P. C. Moreover,

if at all the CBI was to prosecute him, they ought to have filed a charge -

sheet against him within one year from the date of the incident as per

section 161 of the Bombay Police Act. He further submitted that though

the Applicant was not a Police officer within meaning of the Act, but he

falls in the category of other person working under the Act and hence can

claim protection of section 161 of the Bombay Police Act. He relied on the
 ~.

44
7/B( ~~
n1lings in the matter of: Suresh Jain v/s Ajay Bhushan Pandey ((1998)

1 SCC 205), Dilawar Balu Kurane v /s State of Maharashtra ( (2002) 2

SCC 135), Verupaxappa Kadampur v /s State of Mysore (AIR 1963 SC

849) and A. K. Patel v/s State of Gujarat ( (2000) 6 SCC 195).

This sums up the submissions of the Ld. Cmmsel Mr. Rajuand

Advocate Mitesh Amin for the Applicant/accused.

b) Submissions of the Ld. Spl. Prosecutor for CBI.

I heard the Ld. Spl. Prosecutor Mr. B. P. Raju for the CBI.

He submitted that CBI was directed to carry out investigation about the

encounter of Sohrabuddin and killing of his wife Kausarbi in the year

2010 i.e almost 5 years after the incident. Initially, investigation was

carried out by the Gujarat State Police who had filed a closure report,

stating that the dreaded criminal Sohrabuddin was coming from Surat and

was absconding accused in the Hamid Lala murder case and further case

of firing in the Patel Brof:P.ers' Office; Police Party asked him to surrender,

. but he fired at the Policemen. In defence, the police fired at him in which

he died. Later on, it had surfaced that this story of encounter was

I palpably false.
f
;
~
~
r
ii

i..
.g:
~­
~
~

~:
&
~
~---·--·- ~ ... _, ___ ____
.,..... ,__ ______ ----~---···--~--
,,.,_
/.. .

45 7)-crf 'tS
He further submitted that it was revealed during investigation

that when Sohrabuddin was coming from Hyderabad and going to Sangli,

he was abducted by the Police party consisting of Rajasthan and Gujarat

Police. Sr. Police Officers from both States had entered into a conspiracy

to eliminate him. While Sohrabuddin was abducted from the Luxury bus,

his wife Kausarbi and Tulsiram Parajapati were also along with him.

Later, Sohrabuddin was killed in a fake encounter, his wife Kausarbi was

also killed and, a year thereafter, another eye witness Tulsirarn Prjapati

was also killed in a stage managed encounter as part of a larger

conspiracy. He requested this Court to consider the statement of PW 65 to

67 and PW 100 to 102.

He submitted that Ramanbhai Patel and Dashrathbhai Patel

were the victims of the firing in their office at Ahn1edabad for which a

crime was registered at Navrangpura Police Station. However, Accused

No. 1 Mr. D. G. Vanzara threatened them to give a statement against

Soharabuddin or else they will be booked under Prevention of Anti- Social

Activities Act. During their interrogation by Mr. Vanzara, Mr. Vanzara

received a phone-call from the Applicant, who asked the Patel brothers to

give statement as Vanzara suggests or else they shall land in trouble.

According to the Ld. Prosecutor, it shows tha~ the Applicant was closely
~-:

46 7/5/~.tf
connected with the encounter of Sohrabuddin.

The Ld. Prosecutor further submitted that the Patel brothers

I

were given threats for ransom of Rs.1.5 crore. They paid an amount of

Rs. 70 Lakh to accused no. 17 Ajay Patel in three installments. There is

evidence on record that said Ajay Patel is closely connected with the

Applicant/accused. He also pointed out the statement of C. G. Raiger,

V. L. Solanki, Rajendra Acharya and Rajneesh Rai to show that the

Applicant/accused was interfering with the investigation of Sohrabuddin

encounter case to save himself.

He further argued that while considering a case for discharge

\

u/s 227 of the Cr. P. C., this Court has to accept the statements of

witnesses as they stand to see whether prima facie case is made out

against the Applicant/accused. Evidence .of crj.minal conspiracy has to be

looked in view of section 6 and section 10 of the Indian Evidence Act.

According to him, call-data records in between this accused and other

accused can be r~lied_on. at· this stage without the:re being details of

conversation. He relied on rulings in the matter of:, State of Bihar v /s

Ramesh Singh (1977 Cri. L.J 1606 (SC)), State of Kamataka v/s

Munni Swami (1977 Cri. L.J. 1125 (SC)), Union of India v/s Prafu:l

Kumar Samal (1979 Cri. L.J. 154 (SC)), State of Maharashtra v/s
' • I •
 47 7/3(tr7
Somnath Thapa (1996 Cri. L.J. 2448 (SC)), State of Orissa v/s

Devendranath Padhi (.A.JR 2005 SC 359) and Vijayan v /s State of

I

Kerala (2010 Cri. L.J. 1427 (SC)).

c. Intervener/Complainant's submissions

On behalf of the first informant, Mr. Rubabuddin Shaikh,

Ld. Adv. Mr. Mihir Desai requested this Court to allow him to make

submissions. When he was asked about his locus with reference to the bar

u/s 301 and 24 (8) of Cr. P. C., he relied on rJlings of the Apex Court in

the matter of Sandeep Kumar Bafna v/s State of Maharashtra (2014

ALL MR (CRI) 4113), Suresh alias Pappu Kalani v/s State of

Maharashtra ((2001) 3 SCC 703), Zakia Naseem Ahsan v/S State of

Gujarat ( (2000) 12 SCC 302).

Ld. Counsel Mr. S. V. Raju objected his request of oral

submission and submitted that Hon'ble Supreme Court did not observe in

any of its ruling in respect of this case that Rubabuddin has a right to

have audience. Even the Hon'ble Gujarat High Court refused him

permission to be a party in Bail Application filed by the Applicant.

However, lastly he submitted that if this Ccurt allows Mr. Desai to make

submissions then he has no objections for the same.

t"'~.

48 7/1?'£/ 'rY
I allowed the Ld. Advocate ML Mihir Desai to make oral

submissions and to file written submissions only with a view that the

informant who has lost his brother and sister-in-law in this offence should

not feel that he has not been heard in the matter due to niceties of the

criminal justice system. Ld. Adv. Desai, therefore, made oral submissions

and also filed on record written notes of argument at Exhibit 232-B.

He submitted that since the case is based on circumstantial

evidence, direct link of this Applicant/accused may not be searched for

the, purpose of framing charge. The Applicant/accused was the then

Minister of State, Home. All other accused, who are police officers and

policemen, were directly under his 'control. His contention was that if the

sequence of the events is considered in view of Patel brothers' statements,

this Courr-will come to know that the firing ,which took place in the Patel ·-
1
I

brothers; office by Sohrabuddin's henchmen was the part of a criminal

conspiracy to first involve Sohrabuddin in a crime and then to kill him in

encounter. It was not a mere.co-irtddent that Mr. Vanzara received a call

from the Applicant/accused while he was recording Patel brothers'

statements. PW 66 and 67, Ramanbahi and Dashrathbhai Patel have

··directly implicat~d the .Applicant

. .
in this case.
'
~:

49 ?/ K /~7
He further argued that there is record of phone-calls made by

and received by other police officers who are the co-accused in t._his case.

Calls were made on or about the same dates on which Sohrabuddin and

Tulsiram Prajapati were killed. These two sets of evidence are enough to

hold that a prima facie case exists to frame charge against the

Applicant/accused.

He submitted that Tulsiram Prajapati was taken to Udaipur,

State of Rajasthan. He was an eyewitness for the abduction of

Sohrabuddin. He felt that he also would be killed· in a fake encmmter,

hence he started making applications to various Courts and even to

National Human Rights Commission requesting to provide adequate

protection. However, he was killed in a stage managed encmmter so that

he should not open his mouth and expose the conspiracy of killing

Sohrabuddin.

The Ld. Advocate also submitted that there are statements of

Mr. Raiger, Mr. Solanki stating that there was pressure from the Minister

of State to carry out investigation in a particular manner. As they refused

to carry out illegal order, they were removed from key posts. Smt Geeta

Johri, then IG State of Gujarat changed the note striking out the words

suggesting interference from the State Government in fair investigation.

~.
 ..•',
... ~I

50 7/vr-{so
All t.~e above evidence is enough to frame the Charge against the

Applicant/accused atleast under some penal sections of law.

He further argued that while considering the evidence on

record for the purpose of framing a charge, a rowing enquiry a bout

statements of witnesses is not expected, though the Court can sift ·and

weigh the evidence on record. He relied on n1ling in the matter of

Rarndas Wadkar v/s State ofMaharashtra ((2006) 1 Mh. L J 240) and

all other rulings relied upon by the Ld. Spl. Prosecutor, and also pointed

out observations of the Hon'ble Supreme Court while considering CBI's

appeal against granting bail to this Applicant(accused.

d. Findings and reasons

• Scope of section 227 as explained in various rulings •

l have given earnest thought to the evidence and the material

' .
.on record, submissions -of all Ld. Advocates appearing for the parties to

the proceeding, various provisions of law apd the rulings of the Hon'ble

High Courts and Hon'ble Supreme Court.

It would be proper to take a note of section 227 of the

Criminal Procedure Code, 1973 and also to discuss how the evidence on

record is ·to be appreciated while deciding such application. Section 2?-7

ofthe Code states that-

·~:

~
,~

51 7/E(st
"If, upon the consideration of the record of the case~ and
documents submitted therewith, after hearing submissions of the
accused and the prosecution in that behalt th.e jpdge C()nsiders
that, there is not sufficient ground for proceeding against the
accused, he shall discharge the accused and record his reasons for
doing so."

The scope of this provision has been explained by the Hon'ble

Supreme Court and various High Courts in number of cases. Even before

this Court, the Ld. Advocates appearing for the parties relied upon so

many rulings on this point. The first of such ruling is in the matter of:

Century Spinning and Manufacturing Company v/s State of

Maharashtra ((1972) 3 SCC 282). Hon'ble Supreme Court considered the

scope of section 251 (A) Cr. P. C 1898 (old code), now section 239 of the

Cr. P. C. It is observed in para. 17 that:

"the order of framing charge does substantially affects the person's liberty and
it is not possible to countenance the view that the Couri: must automatically
(rame the charge. merely because the prosecuting authorities. by relying on
docziments referred to in section 173, considers it proper to institute the case.
The responsibility of framing charges is that of the Court and it has to
.i,y.dicially consider the question of doing so. Without fully adverting ,tlle_
material on record, it must not blindly adopt the decision of the
prosecution. "

The scope of sec.227, Cr. P.,C. was cons,idered by Hon'ble

(~'\

52 7/Fr/_s 2-
Supreme Court in the ruling Union of India v/s Prafulla Kumar Samal

( (1979) 3 sec 4). It was held that,

uthe words 'not sufficient grounds (or proceeding against ihe accused 7

clearly shows that the judge is not a mere post office to frame the charge at the
behest of the prosecution, but, he has to exercise his judicial mind to the (acts
of the case in order to determine whether a case for trial has been made o-ut by
the prosecution. In assessing this fact it is not necessary {or the Cow-t to enter
into pros and cons of the matter or into weighing and balancing the evidence
and probabilities which is really his function after the trial starts. At the stage
or section 227. the judge has merely to sift th.e evidence in order to find out
whether or not, there is sufficient ground for proceeding against the accused
The sufficiency o(the ground would take within its fold the nature of evidence
recorded by the police or the documents produced before the Court-which Ex-
Facie disclose that there are suspicious circumstances against the accused to
frame the charge.
It has further been held by the Apex Court that,

". ·The scope of section 227 of the co@ _was cons,idered by a recent
decision of this Court In the case' of State of Bihar v/s Ramesh Singh, the
Court observed as foUows: St:i"!Jyg syspicion against the accused , if the :matter.
remains in the region of suspicion, cannot take pale of proof of his guilt. at the
conclusion of triaL But, if at initial stgge there is a strong suspicion, which
. . .. .

leads the Court. to .thir.k :that there is groun~ (or preswnim! that the .accused
has committed ·an offence, .then it is not open to the Cow"t to Say· that there. is
no sufficient ground of proceeding against the· accused The preswnption of the·
guilt of the accused which is to be drawn at.· an initial stage is not in the sense
. ; ' . .

of the law governing trial ofcriminal cases in France, where the accused is
presumed to be guilty unless the contrary is proved But It is only for the
pumose of decjding erima-{qcie Whether the Coyrt should proceed with the
("),

53 7{-:EI/s 3
trial or not. If the evidence which the prosecutor proposes to adduce to prove
the guilt of the accused, even if fully accepted before it is challenged in cross-
examination or rebutted by the defence evidence, if any, cannot show that the
accused committed the offence, then there is no sufficient ground for
proceeding with the trial. This Court has thus held that. whereas strong
suspicion may not take place of proof at the trial stage, yet it may be sufficient.
(or the satisfaction of the Sessions Judge to frame the charge against the _
accused."

Tn th~ l'!lC~ llf p Vii~v~n v' P/f;:. c;:.-~tp nf TlPl"~l~ (?.01 n r ...L L_T_
.1..1..._ '-1.L'-' "-"'-._U_ '-.1'.1. • ...... -J -.-..&
.a. I- .._..,.__~-
-.-. - - - . - - - - ' \ , . - - - - ---• -·- •

1427 {SC)), the Hon'ble Apex Court while considering the scope of

section 227 of the Cr. P. C. observed that,

"If two views are possible and one of them gives rise to suspicion only as
distinguished from grave suspicion, the trial judge is empowered to discharge
the accused and at this stage he is not to see whether trial will end in
conviction or acquittal"

The Hon'ble Apex Court reiterated the above principle in all the

rulings. It is not necessary to note each and every decision cited before

me. Suffice to note the principles which outline the scope of section 227

of the Cr. P.C., which are as follows:-

1. If considering the material on record the judge feels that

there is a mere suspicion that the accused has committed an

offence, he may not frame a charge

'~,

54 7/Ir (.s ~
ii. If considering the material on record the judge feels that,

there is a strong suspicion and during hearing of his

I

submissions, the accused did not give a plausible explanation

about the material appearing against him, then the judge

shall frame charge against him.

m. While coming to the conclusion whether material on record

shows suspicion/grave suspicion against the accused, the

judge may sift and weigh the evidence on record against him

but, shall not do rowing enquiry about the evidence.

iv. The statements of witnesses have to be accepted as they are

on record without adding or subtracting any word, fact

therefrom.

v. The judge shall not decide probative value of the statement at

that stage.

vi. Evidence produced by the prosecution must be relevant and

admissible.

Now I proceed to consider the facts of the instant case and

/
evidence, in the light of the aforesaid guiding principles.

There are two main charge-sheets and two supplementary

{·

~·

t
.r
~
§:
~:

i
,r>,

55 7/X I s.s
charge sheets filed by the CBI against 38 accused in all. They are now

numbered as Sessions Case no. 177/13, 178/13, 577/13 and 312/14.

After perusal of all the charge-sheets, I, gather the following facts which

the CBI relies in order to substantiate the allegations against the

Applicant/ accused.

He allegedly threatened the Patel brothers, asking them to

give statement against Sohrabuddin, as per the suggestion of Mr. Vanzara,

the then Dy. Inspector General of Police, Gujarat.

• Accused No. 15, Abhay Singh Chudasama threatened the

Patel brothers in the name of the Applicant/accused asking them to pay

Rs. 1.5 crore to avoid their detention under Prevention of Anti-Social

Activities Act.

• Patel brothers paid a total sum of Rs. 70 Lakh in, three

installment dated 16/05/2006, 20/05/2006 and 31/05/2006 to accused

no. 17 Ajay Patel.

• Meeting between Patel brothers and Ajay Patel (Accused

No.1?) and Abhay Singh Chudasama (Accused No.15), which was

videographed by them, in which they insist them not to give any

statement to the CBI without their approval in the Sohrabuddin case.

• G. C. Raiget, ADGP Homeguard, Gujarat, who was holding an

 r~~

56 1 ;~rs-&

additional charge· of ADGP CID Crime and was supervising investigation

of Sohrabuddin encounter case, refused to follow the illegal insn-uctions

I

of Minister of State, Home, (the Applicant) and his consequent transfer

from the said post on 20/01/2007.

• V. L. Solanki, the Police Inspector, was conducting the

preliminary enquiry in that case. Srnt. Geeta Johari conveyed him

instructions of the Applicant/accused to change the status report.

~ On 5/01/2007, Smt. Geeta Johari prepared a note seeking

permission to go to Udaipur to interrogate the accused by name Sylvester

and Tulsiram Prajapati, though she was aware that Tulsiram Prajapati

was killed in an alleged encounter dated 28/12/2006.

• Smt. Geeta Johari's act of striking out the words "There is ·a. ·
·· .....
systematic effort on the part of. the State Government supporting the

Police to tamper with the witness and evidence."

• Witness Azam Khan. was taken in illegal custody by some

I(
~-

r.t
policemen from qujar~t
i
and he was forced .to prepare a false affidavit

( requesting him to tell Rubabuddin to withdraw the Writ Petition filed in

~
~
f
l the Supreme Court.
~
f
• In between 26/11/2005, to 31/12/2006, during a span of orte
f
-~
I
year, the Applicant-accused made/received total 38 calls from Accused
I
f"
I
l~

I
r,

57 7/J!Lis 7
No. 1, D. G. Vanzara and, 343 calls from the Accused No. 2 S. Rajkumar

Pandian. According to the CBI it is unnatural.

The CBI in short proposes that the aforesaid facts when

considered in totality, give rise to a chain of incriminating circumstances

enough to implicate the Applicant/accused in the instant case.

However, after scrutinizing the entire materia1 against the

Accused-applicant and considering the rival-submissions and principles

governing Section 227 of the Cr. P. C , 1973, I am of the opinion that the

inference which the CBI draws from the aforesaid facts, is not acceptable

as the entire record when considered in totality is not sufficient to

proceed against the Applicant/accused, for reasons which are elaborated

in the proceeding paras.

(i) As a matter of convenience, if one analyses the CBI's

allegations, they can be broadly divided into two parts. The first part is

regarding the allegations as to Sohrabuddin, Kausarbi and/or Tulsiram

Prajapati's abduction jointly by the Gujarat and the Rajasthan. P9lice and

the stage-managed encounter of Sohrabuddin and the murder of his wife

Kausarbi allegedly acting under the instructions of the Applicant/accused.

For the first part of their allegation, the CBI mainly builds its case on the

statements of Patel Brothers and the CDRs in corroboration ..

 0~
( .. :~

5S 7/:Ef i 5 f
(ii) The Patel Brothers gave three different statements at three

different times. The first two statements, dated 16/03/2010 Rnd

27!03!2010 respectively, were given u/s 161 of the Cr. P. C.,) 973 and

the third statement dated 12/04/2010 is recorded a month thereafter,

u/s 164(5) of the Cr. P. C., 1973. When, one peruses all the statements

and places them side by side, it is crystal clear that the statement u/s

164(5) is virtually in ad-verbatim version of the statement u/s 161 of Cr.

P. C. recorded by the CBI, a month ago and not a year ago, as submitted

by Ld. Defence Cotmsel. I find substance in the submissions of the Ld.

Counsel for the Applicant-accused that it is absolutely unnatural and

unbelievable that the witness states all the facts almost in ad-verbatim

even without much grammatical variations, same as per his earlier

statement. This is somewhat opposed to common-sense. The contention

of the Ld. Counsel for the CBI and the complainant is that this Court

cannot decide the truthfulness of the witnesses and commence a rowing

inquiry. I agree with Ute submission of the Ld. Counsel, however, while

accepting these statements the Court cannot ignore the above strange

circumstances i.e. their statements recorded by Gujarat police; their

earlier statements u/s 161 recorded by CBI and their statements u/s 164

(5) recorded by the Ld. Magistrate in Mumbai in which they made some
/"--..... .

59
Jj:rtr/Si
improvement periodically. The manner in which the said statements are

recorded, they certainly cast doubt on their acceptability.

(iii) Even if their statements are accepted as they stand, what I

could gather is that the Applicant/accused asked them to give a statement

against Sohrabuddin as per the instructions of Mr. Vanzara. According to

the CBI, this connects the Accused/applicant to the conspjracy and

Soharabuddin. However, undisputedly, the CBI did not get the actual

conversation or the Phone-call record or for that matter the Accused-

applicant's voice sample or anything which supports the Patei brothers'

version. So, this part of statement is of no .consequence as far as

\

connecting the Applicant/accused to the alleged conspiracy.

(iv) In the second statement, Patel brothers state that Accused no.

17, Ajay Patel asked them to pay an amount of Rs. 1.5 crore out of which

they paid Rs. 70 Lakhs on three different dates i..e on 16/05/2006,

20/05/2006 and 31/06/2006 so that they shall not be implicated under

the Prevention of Anti-Social Activities Act. However,. there is no

evidence to show that the Applicant/accused directly asked and received

any amount from them. There is no evidence brought by the CBI that the

proposal of detention of Patel brothers was prepared and was pending for

the Home Minister's consideration.

 r"',..
(-:

()() 7/:tr /
{o

(v) In this connection, Ld. Counsel Mr. Raju submitted that the

CBI has taken charge of Ajay Patel's passport. Entries therein show that,
I

the two dates on which Patel brothers alleged to have paid the two

installments, on the same dates this accused No.17 was out of India.

However, it is difficult for me to consider at this stage the aforesaid

submissions of the Ld. Counsel, as it would amount to give findings to the

defence of alibi which the Accused No. 17 might take.

(vi) Be that as it may, the evidence of the Patel brothers is

hearsay in nature and is inadmissible, as they state what they have heard

from the Accused no.lS & 17 against this Applicant-accused. So, even this

can't be -relied upon to implicate the Applicant-accused.

(vii) According to the CBI, accused no. 15, Abhay Singh

'-..,"'
Chudasama was a close and trusted ,, police officer of the . (
,(

Accused/applicant. Patel brothers in their third statement, state that

Sohrabuddin's henchman caused firing in their office to create terror

amongst other bus:inessp:1an. S<>hrabuddin did this under the instructions

of Mr. Abhay Singh Chudasaina~ who ran an extortion racket tht:ough

Sohrabuddin, at the instance· of the Applicant-accused. According to the

1
Patcl brothers, they learnt .··this. from .the other police officers. The CID

asserts that, this fact connects the Applicant-accused to Sohrabuddin an4 .·

----· ------- --,----~---.--~----

("':

61 '7/li!r) l:- I
Abhay Singh Chudasama, as well as outlines his motive to finish

Sohra buddin.d

(viii) There are some glaring loopholes in the aforesaid theory with

regard to the motive ascribed to this Applicant-accused. One, that there is

absolutely nothing to show that Accused no. 15 Abhay Singh Chudasama

was so close and trusted aid of the Applicant-accused, who carried the

alleged illegal activities for him. Apart from the Patel brothers' version,

there is no statement of any other witness to show the existence of the

above fact. And, secondly, it was an opinion of the Patel brothers that

Abhay Singh Chudasama and the Applicant-accused had a close and

trusted relationship and that Mr. Abhay Chudasama was acting at his

instance appears to be based on their hearsay information and so it does

not qualify as legal evidence. Consequently, in my opinion, it can't be

relied upon even at this stage to proceed against the Applicant-accused.

(ix) Moreover, the motive which the CBI ascribes to the

Applicant-accused cannot be sustained as Sohrabuddin was already

involved in many cases and was an absconding accused, which is not in

dispute, and there was a reason for the Gujarat and the Rajasthan Police

to nab him. Further, ;f the motive is to be believed as suggested by the

CBI, then one can understand· the involvement of the Gujarat Police on
(~.

62 7 j-rr /6~--:
whom the applicant -accused. might have control, but then there was no

reason for the Rajasthan Police to get involved.

I
(x) To corroborate the Patel brothers' statement, the CBI

collected Call-Data Records in between the Applicant-accused~ D. G.

Vanzara and Rajkumar Pandian, both accused no.l and 2 respectively.

According to the CBI, it was tmusual and unnatural that the Minister of

State, Home, was dir~ctly in touch with the ground-level officer of the

rank of a Superintendent of Police. It is undisputed that S. Rajkumar

· Pandian was then Superintendent of Police, ATS, Ahmedabad. One cannot

forget the fact that the Anti-terrorist Squad is a specially trained squad of

the Police-force. to prevent the activities of terrorist groups. The judicial

notice of the fact well can be taken that terrorist activities have increased'
·~-.,~

and are rampant all over the world. Ip &.,uch a situation, if a Home-

Minister of a particular State enters in a direct dialogue with officers like

the Superintendent ofPolice working at the ground level is not a matter

of surprise, unusual or.unnatural as the CBI proposes.

(xi) The fact that the Applicant/accused was in touch with such

ground level officers of a special squad is not a sufficient circumstance

~··
which raises suspicion against the Applicant/accused, especially in
~
t:_

~
~·
~.
K

~­
t
II:
(~' ;
·· ...

63 7 tsr (63
absence of any legal evidence for corroboration, which is already

discussed. Moreover, the explanation of the Applicant/accused that it was

his style of functioning as a MOS, is plausible and can be considered

while deciding an application u/s 227 of the Cr. P. C., 1973.

(xii) If t.l-te above explanation is not accepted at this stage, still

I hold that only because there is record showing that the

Applicant/accused made certain phone-calls to Mr. D. G. Vanzara and

Mr. S. Rajkumar Pandian on particular dates, proximate to the alleged

encounter is by itself not sufficient to infer that he entered in criminal

conspiracy to abduct and kill Sohrabuddin and others, especially without

there being details of actual conversation.

(xiii) This aspect of absence of particulars of conversation is dealt

by the Hon'ble Supreme Court of India", in the case of Babubhai

Bhimabhai Bokhiria v/s State of Gujarat ((2014~ (5) SCC, 568). In this,
case, the appellant Bokhiriya was sought to be added as an accused

invoking the provisions of section 319 Cr. P. C. on the basis of the fact

that the Appellant was in touch with the main accused by phone calls

immediately after the day of occurrence. The Hon'ble Supreme Court

refused to recognize such evidence to call the appellant to face trial. It

was held:
,--,
,. ' ~\

64
7/tr/6 y
"The other evidence sought to be relied on for summoning
the appellant is the alleged conversation between the
appellant and the accused on and immediately between the
day of occurrence. But, nothing has come during the course
of trial. Regarding the content of conversation, and call
record alone, the appellant's complicity in the crime does not
'
surface at all"

(xiv) The Ld. Spl. Prosecutor Mr. B. P. Raju for the CBI submitted

that the ruling of the Apex Court has been delivered in the year 2014 and

so cannot be made applicable retrospectively to the facts of this case as it

pertains to the year 2005-06. However, it is difficult for me to accept such

submission. The Hon'ble Court in the. instant authority explains the s-cope
;

of admissibility and applicability of the evidence in the form of CDRs in

absence of actual conversation. The apex Court was also dealing with the

evidence relating to the incident had taken ptace in the year 2005. As rule 'i
\

of the admissibility of evidence is explained, there is no question of

retrospective or prospective application of the case, law.

· (xv) The L<L Counsel . · S. V. Raju submitted that the CBI

T ' • • /

conveniently did not collect all the . call record details between the
' '
Applicant/accused and the other police officers in· the state during the

particular period proximat-e to the alleged offence. The CBI reftricted

their investigati<:>ti about phon~ calls which were exchanged in between

/ . ,.. .T.,.._\

65 7/.Jr/6S
the Applicant/accused and the other accused police officers, unfairly.

I find substance in this contention.

(xvi) Be that as it may, as discussed above, the legal position is that

only on the basis of CDRs, without the content of actual conversations, no

sufficient ground can be considered to proceed against the

Accused/ applicant to link him with the alleged conspiracy.

(xvii) Now, coming to the second part of the CBI's allegations, the

CBI alleges the Applicant/accused's involvement as one of the

conspirators in the Tulsiram Prajapati's fake encounter. It is undisputed

that Tulsiram Prajapati was allegedly encountered one year after the

death of Sohrabuddin. To show the Applicant/accused's complicity in this

crime, the (:BI relied on the statements of PW -1 Rubabuddin Shaikh,

PW-2 Naimuddin Shaikh, PW-4 Azam Khan, PW-80 Mahendra Singh

Zala, PW-193 Zahid Kadri, PW-163, Vasant L. Solanki, PW-216

Gyanchand Raiger, PW-219 Rajendra Acharya and the 'note' prepared by

Smt Geeta Johari (Accused No.36) dated 22/05/2007 and call records.

(xviii) Out of them, PW-1 Rubabuddin, PW-2 Naimuddin,

PW-80 Mahendra Singh Zala do not implicate the Accused/applicant in

any manner.

'
r--::>

66
7/E(b£
(xix) P\'V-4 Azam khan stated in his statement u/s 164(5) Cr. P.

C. , 1973 that, Mr. Abhay Singh Chudasama offered him Rs. 50 Lakh to

manage Rubabuddin. His so called statement dated 22/02/2010

recorded by the CBI u/s 161 Cr. P. C., 1973 is also on record. Perusal of it

shows that, he does not implicate the Applicant/accused in any manner.

He only states that, Abhay Chudasarna told him that there was political

pressure of Gujarat Police to apprehend Sohrabuddin as he had caused

trouble to influential people. Such statement being hearsay in nature, has

no evidentiary value. at all and can't be relied upon.

(xx) PW-193 Zahid Kadri stated that Accused no. 2 S. Rajkumar Pandian

asked him to withdraw his petition .against Gujarat Poli_ce and to give a

statement against Sohrabuddin, or else he would be killed as per

,
· ..
......
directions o:f .. this Applicant/accused; However, the admitted, fact on
'[
record is that, Zahir J<adri had no.t filed any petition about So4rabuddin

encounter,. His statement

.
has hardly any relevance as far as
' . .
the case at

hand is concerned. , ~ertinently, as S. Rajkum«u Pandian is a co-accused in

this case, what he stated to Zahid · Kadri about the Applicant-accused

cannot be relied upon to connect him to the alleged conspiracy.

/~
'' ':0.,

67 7(-lr/t7
(xxi) This now lastly takes me to the CBI's allegation that the

Applicant/accused interfered and influenced the investigation carried by

the CID(Crime) Gujarat in the Sohrabuddin and Tulsiram Prajapati

encounter case by taking disadvantage of his position as a Minister Of

State. The CBI contends that the Applicant/accused would not have

interfered or influenced the investigation of the Sohrabuddin and

Prajapati encounter, had he not been involved as a chief conspirator of

their deaths.

(xxii) To sustain their allegations, the CBI mainly relies upon t..l-te

statement of Gyanchand C. Raiger, the then ADGP (Home guards) as well

as holding additional charge as the ADGP CID (Crimes). Mr. Raiger stated

that, in the last week of the month of December, 2006, a meeting was

called for by the Minister of State, Home, which was attended by him,

P. C. Pandey and Smt. Geeta Johari. In that meeting, the

Applicant/accused scolded him for not instructing Mr. V L. Solanki who

was then the 1.0. making -inquiry in the Sohrabuddin Encounter Case

under the directions of the Apex Court, not to involve senior Police

officers like Vanzara and Pandian and how does a police Officer of a level

of a Police Inspector, did so. Mr. Raiger states that he refused to follow

the Applicant/accused's illegal instructions and requested the

I
/~.
.. '

'·

68 7jJ?r/6t
Applicant/accused to relieve him as the ADGP, Crime~ On the basis of

this, the CBI submits that the Applicant-accused was a party to the
. I
conspiracy to kill Sohrabuddin and, hence, he gave such instructions and

pressurized Mr. Raiger to follow them.

(xxiii) It is required to be noted at this stage, that the other

co-3ccused Mr. P. C. Pandey and Mrs. Geeta Johri denied that such a

meeting has ever taken place. The Ld. Counsel for the Applicant/accused

vehemently submitted that such a statement is too vague to be made the

basis of fastening · a very serious criminal charge upon anyone. ' I find

substance in his submission as the term "illegal instructions" in absence of

any specific instance of illegality is· too vague and ~mbjective. And,

assuming for the sake of argument that the Applicant/accused had given

such instntctions, it is too far-fetched to cop.cl:u~e that he did so because

he was a conspirator in Sohrabuddin's encounter. This itself is not

sufficient to try the Applicant/accused for the alleged serious offences.

(xxiv) The CBI

i
. further relied upon the statement. of Mr. V. L.
.

Solanki- to corroborate Mr~ Raiget's st~.tement. He states that in

November, 2006 he met Smt. Johari in :her Chamber, and she told him

that she had a m~tlng with/the Minister of State, Home alongwith P. C:

Pandey and Mr. Raiger, in whi~h the MOS, Home, was in a very bad
I
\
·\
 ,.....,. ......._,
I .

69 7(:k/£ct
mood and asked them how he (Mr. Solanki), an officer of the level of a

Police Inspector could make a preliminary report against Sr. police

Officers. She asked him to change the report. He further states that he

sought permission to go to Udaipur to interrogate Tulsirarn Prajapati

which was never granted.

(:xxv) His very statement apparently reveals its hearsay nature as he

did not attend the so called meeting. The report which he was allegedly

asked to change is admittedly not on record. His other 'Action Taken

Reports' which are not disputed and which he had filed before the

Hon'ble Apex Court, do not implicate any of the senior Police officers. It

is a fact on record that the permission to go to Udaipur was granted to

him and Smt. Johari to record the statement of the accused Sylvester,

henchmen of Sohrabuddin, observing that Tulsiram Prajapati was dead by

the time. Therefore, I do not find any reason to accept his statement in

order to implicate the Applicant/accused.

(xxvi) Mr. Rajendra Acharya, who was then a P.A. cum typist

attached to Smt. Johari, states that Mr. V. L. Solanki had come to see

Smt. Johari somewhere in September, 2006. V. L. Solanki told him that

Srnt. Johari, informed Solanki about the mePting with the MOS, Home,

Raiger, and P. C. Pandey, in which the MOS, Home, gave certain

r:.-..,·

70 7/~ /70
I

instructions about the investigation. Even this statement would not help

the CBI, it being a purely hearsay piece of information and so needless to

state that it cannot be considered.

(xxvii) One more fact the CBI relies to connect the Applicant/

accused to this crime is that on 22/05/2007, Smt Geeta Johri prepared· a

note stating:

"There is systematic efforts on the part of (State Government

Supporting) certain agencies including the police to tamper
with the witness and evidence. The 10 seems to be facilitating
above .... "

(xxviii) According to the CBI, the act of Smt. Johrl striking out

the words "Government Supporting Agencies" show that the

Applicant/accused was the only person influencing the investigation.

. . . ... ·, .
If one has to accept thatSmt. Geeta Johristriked out or omitted the said

words, that by itself does not suggest that the ApplicanVaccused was the

only _person tampering with the witnesses. In fact, if o!le peruses the

entire note which iis m1 record,,it would show that Smt. Geeta Johri was

not happy with the investigation being carried by the then 10

Mr. Panderiya and notbing more can be construed out of it. So, therefore,

it can be reasonJ.bly inferred that it no-way shows that the

Applicant/accused was influ~ncilig Smt. Johri to manipulate the

!~>
.. •

71 7/ rr/'1
investigation.

(xxix) To sum up, it is seen from the entire record of the case

that there is no sufficient evidence on facts to indicate that there was

meeting of minds in between the Applicant/accused and the other

co-accused to abduct and then to kill Sohrabuddin, Kausarbi and/or

Tulsiram Prajapati. The CBI mostly relies chiefly on the statements of

witnesses which are hearsay in nature, which witnesses just state facts

which they have learnt from the other co-accused and some-where else.

Even the statements of co-accused do not in any way directly implicate

the Applicant/accused to the fake encounters.

(xxx) Section 10 of the Indian Evidence Act, 1861 allows the Court

to consider co-accused's statements about conspiracy only as a

corroborative piece of evidence, provided that by way of legal evidence it

is shown that there was an agreement in between them to carry an illegal

act or a legal act by illegal means. It would be proper to reproduce

Section 10 of the Indian Evidence Act, 1861, which reads as under:

"1 0. Things said or done by conspirator in reference to

common design --

Where there is reasonable grotmd to believe that two or more

persons have conspired together to commit an offence or an
actionable wrong, anything said, done or written by any one
p,

7/trll~
7'1
,.f..

of such persons in reference to their common intention, after

the time when such intention was first entertained by any one
of them, is a relevant fact as against each of he persons
I

believed to be so conspiring, as well for the purpose of

proving the existence of the conspiracy as for the purpose of
showing that any such person was a party to it."

(xxxi) The scope and applicability of this section is considered

by the Hon'ble Apex Court in the case of State of Gujarat v/s

Mohammed Atik ((1998) 4 SCC 351), where the Hon'ble Apex Court

states in para 13:.

"vVe have to see the amplitude of the expression "in reference

to their common intention~' as used in section 10 of the
Evidence Act. It was once considered that the expression is as
good as saying t(in furtheran~e of the common intention". .'

Almost seven decades ago a Full Bench of the Patna High ·-.................

Court had held. it like. thatinlndr(i'Chandra.Narangv. Emperor

.

t(The object of thi~ section is iner.elyto ensure that one

· person ,shall trot be made resp{)nsible for the acts or
deeds· of another until some bond iri the nature of
agency. has be®. established between them and the act,
~ords, or wtitlng of another which it is proposed to
... !, '

attribute viCariously to the person charged must be in

I "• ,.·

furtherance· of the common design and after such

d~sign was entertained." _../"',.'

It is further observed in par~)4Jhat:

"But a three-Judge heiJch of this Court in Bhagwan Swarup Lal

t~';\

73 7/--rr:{l;>
Bishan Lal v. State of Maharashtra said that the expression
("in reference to their common intention") is wider than the
words "in furtherance of their common intention" and is very
comprehensive and it appears to have been designedly used
to give it a wider scope than the words "in furtherance of' in
the English law. Even if it is wider, would its width go
beyond the period of conspiracy? It is well-nigh settled that
Section 10 of the Evidence Act is founded on the principle of
law of agency by rendering the statement or act of one
conspirator binding on the other if it was said during
subsistence of the common intention as between the
conspirators. If so, once the common intention ceased to exist
any statement made by a former ·conspirator thereafter
cannot be regarded as one made "in reference to their
common intention". In other words, a post-arrest statement
made to a police officer, whether it is a confession or
otherwise, touching his involvementin the conspiracy, would
not fall within the ambit of section 10 of the Evidence Act."

(xxxii) In Yogesh alias Sachin Jagdish Joshi v/s State of

Maharashtra ((2008) 10 SCC 394), it has also been held that:

"By and large, however, if two views are equally possible and
the Judge is satisfied that the evidence produced before him
gives rise to suspicion only as distinguished from grave
suspicion, he will be fully within his right to discharge the
accused. At this stage, he is not to see as to whether the trial
will end in conviction or not."

It has further been held that:

(..,.,

74 7/K/77
"The well-known rule governing circumstantial evidence is
that each and every iJ?.criminating circumstance must be
clearly established by reliable evidence and 'the
circumstances so proved must form a chain of events' from
which ~e only irresistible conclusion about the guilt of the
accused can be safely drawn and no other hypothesis against
the guilt is possible."

(xxxiii) Ip Saju v/s State of Kerala ((2001) 1 SCC 378), while

considering the scope of section 10 of the Act, it has been held that:

"This section mainly could be divided into two: the first part
talks c)f where there is reasonable ground to believe that two
or more persons-have conspired to commit an offe:r~ce or an
actionable wrong, and it is only when this condition
i

precedent is satisfied that the subsequent part uf the section

comes into operation and it i~ material to note that this part .,

of the section talks of reasonable grounds to believe that two .,

'
or more persons have conspired together and this eVidently
has reference to section 120-A of the IPC, where it is provided
'when two or more persons agree to do, or cause to be done'."

(xxxiv). In: view of th~ above principle of la"Y as stated by the

Apex Court in the rulings cited supra, if th~ facts of this case and evidence /

on record are to be considered which ate elaborately discussed in the

foregoing paragraphs and,. also t fter considering the rival submissions

and the written submissions filed by the Ld. Adv. Mihir Desai, the
0

75 7(3C/?s
background facts under which the CBI has collected the eviden·ce, which

are undisputed, I conclude, that there is no sufficient ground to proceed

I

against the Applicant/accused by framing charges against him u/s 120B,

364, 365, 368, 341, 342, 384, 302 r/w 201 of the Indian Penal Code.

· Further, I also find merit in the contention of the Applicant/accused that

the Applicant/accused is apparently shown to be involved in Lhis case by

the CBI for some political reasons. Hence, I proceed to pass the following

order:-

ORDER

Accused No.16 Amit Anilchandra Shah stands discharged

of the offences punishable u/s u/s 120(B), 364, 365, 368,

341, 342, 384, 302, 218 r/w 201 of the Indian Penal Code

in S.C. No.177/2013@ 178/2013@ 577/2013@ 312/2014

pending before this Court.

His bail bond to continue for further period of six months as

per section 437-A of Cr. P.C., 1973.

(M.B. GOSAVI)
Spl. Judge for CBI,
Gr. Mumbai.

IJictated in open court on : 30-12-2014

Transc~ption completed on : 01-01-2015
Signed on : 02-01-2015.
'~
1.
7/:rrr(r
: 1 26-02-2015

IN THE COURT OF SPECIAL JUDGE FOR CBI AT

GREATER BOMBAY

APPLICATION (EXHIBIT-120)
IN
SESSION CASE NOS.177/2013@ 178/2013
@ 577/2013 and@ 312j2014

Mr. Gulabchand Hukhumchand Katariya, ]

Aged 69 years, Adult of Rajasthan, Indian ]
Inhabitant, residing at 101/1, Patel Marg, ]
Mansarovar, Jaipur, Rajasthan. ] .....Appli~ant/
(Original Accused No.21)
Vjs.
CBL, S.C.B. Mumbai. ] ..... Respondent.

Sr. Adv. A.K. Sharma, (with Mr. Girish Kulkarni and Madhusoodan
Pareek, Advocates) for Accused No.21.
Mr. B.P Raju, Spl.P.P. for the CBL
CORAM: The Special Judge
M.B.GOSAVI
DATE : 26th February, 2015.
Order below Ex.120

1. This application under sec.227, Cr. P.C. filed by Accused

No.21 Gulabchand H. Katariya claiming discharge from the prosecution
of offences punishable under sections 120-B, r/w 365, 368, 302, and 201
of the Indian Penal Code on the basis of the supplementary charge-sheet
filed against him by the CBI. The allegations in general are as follows:-
i) One criminal by name Sohrabuddin Sheikh was wanted by
Hathipole police station, Udaipur, State of Rajasthan, in connection with
the murder case of extortionist Hami9 Lala. There were allegations that
 1 i
.~. 7(JZ[['{L_
: 2 : 26-02-2:015

said Sohrabuddin had kiHed Hamid La1a on 16-12-2004 through his

henchmen Azam I<han and Tulsiram Prajapati for which crime vi.de CR
No.214-2004 was regist~red. Prior to that, on 08-12-2004 said
Sohrabuddin had caused firing in the office of Patel Brothers in
Ahmedabad to create terror amongst businessmen for the purpose of
establishing racket of extortion. Crime vide CR No.1124-2004 was
registered for the said offence at Navrangpura police station, Ahmedabad,
against Sohrabuddin and others. Sohrabuddin was wanted in that case
also.
ii) It is alleged that police officers/policemen from the State of
' .

Gujarat and Rajasthan entered into criminal conspiracy to nab

•
Sohrabuddm anu_] to e111umate
1' • ' l..' •
ulm 1n encounter huecause hue '"-T.-::1'-"
VVCA..O
t-'ho
L.l..l.'-'

person to expose senior police officers' racket of extortion going on in the

State <;>f Gujarat. _.· To achieve this object, they sought help of political
leaders in both the States.
iii) On 23-11-2005 Sohrabuddi:ri was travelling in a luxury
bus from Hyderabad to Sangli with ; his wife Kauserbi and Tulsiram
Prajapati. At about 5 a.m., he ·was abd~cted from the said bus along with
. . ~ '· . '•,

his wife. ::111d Tulsiram Prajapati by Gujarat and Rajasthan policemen. All
of them were taken to Vadodara. ·Thereafter,Tuh:;iram Prajapati was taken
to Ud~ipur by futjasthan police, where~, Sohrabuddin and Kauserbi were
' .

taken to Ahmedabad by Gujarat poli~. On 25-11-2005 said Sohrabuddin

was killed in fake encounter carried by some policemen from Gujarat. His .
wife Kauserbi was killed_ two days thereafter. One year thereafter, on
26-12-2006 Tulsiram Prajapati )vas a~ killed by policemen near Ambaji.
KauserlJi and Tulsiram Prajapati were killed with a view to eliminate eye
witnesses of. the abduction ofSohrabuddinL
iv) After Sohrabttddjn was killed in fake encounter, ATS,"
Ahmedabad,- had filed -FiR/against him alleging that he attempted to
commit murder of policemen who were to apprehend him at Surat-
~
' .
7{EI(3
: 3 : 26-02-2015

Ahmedabad Highway. Investigation of that crime was carried and abate

summary report was sent to the court of the Magistrate concerned.
v) Meantime, Rubabuddin Sheikh, brother of Sohrabuddin, had
sent a letter to the Hon'ble Supreme Court raising, suspicion about
1
encounter of his brother Sohrabuddin and disappearan ce of Kauserbi.
Hon'ble Supreme Court fmwarded the letter to the Director General of
Police, Gujarat, with a direction to make enquiry. In pursuance thereto,
Preliminary Enquiry was held by CID, Crime, Gujarat. On the basis of
Preliminary Enquiry Report, crime was registered and charge-sheet was
filed against total 13 accused, i.e. some senior police officers and other
policemen from the State of Gujarat and Rajasthan, who had allegedly
taken part in the abduction of Sohrabuddin and Kauserbi and killing them
later on.
vi) Meantime, Rubabuddin Sheikh had filed Writ Petition
bearing No.6-2007 in the Hon'ble Supreme Court requesting therein to
hand over the investigation of encounter of Sohrabuddin to CBI. By
order dated i2-o1-2010 Hon'ble Supreme Court directed CBI to take up
further investigation and to investigate about the angle of larger
conspiracy about abduction and killing of Sohrabuddin, his wife Kauserbi
and Tulsiram Prajapati. CBI thoroughly investigated the crime and filed
supplementary charge-sheet against total 38 accused (including earlier 13
accused arrested by CID, Crime, Gujarat). The cases are transferred to
this court for trial from the State of Gujarat by the orders of Hon 'ble
Supreme Court in Transfer Petition No-44-2011.

2. The allegations in particular against Accused No.21

Gulabchand Katariya are as follows:-
i) Accused No.2o Vimal Patni, one of the Directors of Mjs R.K.
Marbles, was close friend of this accused. This accused was then Home
Minister of Rajasthan. Accused No.20 Vimal Patni had received threats
0 7/JJc/ tr
: 4 : 26-02-2015

of killing him and his family members from Sohrabuddin and his
henchmen if he did not pay ransom of Rs.25 crore. Hence, Vimal Patni
approached this accused vvith request to look into the matter.
Accordingly, this accused used his political contact with Mr. Amit Shah
(now discharged) who was then Minister of State (Home), Gujar~t, to nab
Sohrabuddin. In pursuance thereto, Accused No.1 D.G. Vanzara, then
DIG, ATS, Gujarat, S. Rajkumar Pandian, S.P., ATS, Ahmedabad, Dinesh
M.N., S.P., Udaipur, formed a team of policemen from both the States.
Thereafter, Sohrabuddin was traced. He was abducted along ·with his v.rife
Kauserbi and Tulsiram Prajapati. All of them were killed by policem2n.

3. .nccording
A -·
to c...,.,. f h •
·til, tms accuseu. v;as one o~ ·t._e conspirators o
1 • ;} f

the abduction and killing of Sohrabuddin, Kauserbi and Tulsiram

Prajapati, along with Accused No.20 Vimal Patni.

4· To substantiate this allegation, CBI relied on the facts that

there was a meeting between this accused, Accused No.1D.G. Vanzara and
one Om Mathur that took place on 28-12-2006 at Jag Mandir, Udaipur..
CBI relied on the statements of: PW-4 Azam Khan, PW-5 Rafique@
Bu~ti Sh. Mohd. Hafiz~ PW-33 MustaqueAhmed~ PW-4(? P.G. Soman,
PW-47 Fateh Singh Rathore, PW-48 Sobhagya Singh, PW-10 Rajeev
Dasot, PW-11 Suresh Mehta, PW-12 Phool Chand, PW-13 Brij Gupta, PW-
~

14 ~hok Gupta, PW-15 PhoolSingh M~ena, PW-5 Dinesh Guijar, PW-:6

Raju Das, and statem~nts of Ranvijay ·Singh and Sudhir Joshi .recorded
under sec ..164(5)~ Cr.. P.C. and statement of Mr. Ra]nish Rai, then DIG,
· CID, .Crime, .Gujarat.'

5. . The accused claimed that there is no evidence worth to fraroe

/ : .,., ·
charge against him. He has ·be~n falsely implicated with some ulterior
motive. Entire prosecution case is based on two aspects: (i) the
(~·~')
7/m!s
.• r:: .•
;) 2b-02-2015

inadmissible material and statements of jail inmates of Tulsiram

Prajapati, and (ii) alleged meeting held in Jag Mandir, Udaipur, on
28-12-2006. There is no evidence to show that Accused No.2o Vimal
Patni was close friend of this accused and had approached him because he
had received threats for ransom. There is no evidence o~ record to show
that at any point of time this accused met any other accused before
abduction and killing of Sohrabuddin. It is further stated that the CBI's
allegation that there was meeting in between this accused, Accused No.1
D.G. Vanzara, and Om Mathur etc. is absolutely false because during the
said period, he was in the State of Maharashtra to attend a party meeting.
He is no way concerned with the alleged crime. He has been roped in this
case unnecessarily and, hence, he may be discharged.

6. CBI filed its say at Ex.120-A and resisted the application. In

paras 7 and 8, it is stated that Tulsiram Prajapati stated in his statement
that Sohrabuddin had given threats to the owners of M/ s R.K. Marbles.
He was picked up by Gujarat police. He was given assurance that if he
disclosed whereabouts of Sohrabuddin, they will not cause him any harm.
Sohrabuddin would be detained in some crime for 3 to 4 months. On the
basis of information given by him about location of Sohrabuddin and his
wife, they were picked up from the bus. CBI stated that at that time, this
accused was Home Minister of Rajasthan and Mr. Amit Shah was Minister
of State (Home), Gujarat. They were close friends. Out of that, this
accused at the instance of Vimal Patni requested Amit Shah to look into
the matter. In pursuance thereto, Sohrabuddin, his wife Kauserbi and
Tulsiram Prajapati were abducted and killed.

7- CBI relied on the statement of PW-s Dinesh Gmjar and

statements of other witnesses to rest their claim that Accused No.2o Vimal
Patni had received threats from Sohrabuddin for ransom. As a part of
,r---o.....,_, ,_ /6
7 /-vrr
: 6 : 26-02-2.015

conspiracy, the meeting was held in between this accused, Mr. Vanzara,
and Om Mathur at ,Jag Mandir. This piece of evidence along with
statements of number of ·witnesses establish link of this accused ¥lith the
crime. There is sufficient evidence to frame charge against him~ Hence,
his application for discharge may be rejected.

8. I heard arguments of Ld. Sr. Counsel Mr. A.K. Sharma,

assisted by Mr. Girish Kulkarni and Ld. Sr. Prosecutor Mr. B.P. Raju at
length. I have gone through the material and evidence on record. The
accused had also produced certified copies of some documents to show
that at the material time, he was out of Rajasthan for some party meeting.

9. Ld. Sr. Counsel Mr. Sharma submitted that the meeting in

between this accused, Mr. Vanzara and Om l\1athur at Jag Mandir, on
which CBI mai;nly relies as a piece of evidence, was allegedly held after the
encounter of Sohrabuddin. In view of this, no inference of criminal
conspiracy can be drawn on the basis of such piece of evidence. He
submitted that the name of this .a.ccu,sed appears only in the fourth
supplement~ry charge-sheet. It sho~s that the CBI first decided to expand
· the scope of investigation and started picking . up some
. senior police
officers and political leaders as p;nt of investigation . relating to larger
conspiracy.

10. L<l Sr. Counsel :further submitted that there are some
inquisitive questi~ns ofwhich CBI has no answer. Sohrabuddin had
given. threats to M/ s Mariyarn Marbles and other marble traders but,
others were spared and only one of the 'Directors of M/ s R.K. Marbles is
targeted. He pointed out fro~ t!Ie charge~sheet that the allegations ru:e
that the owners of M/ s R.Jt .Marbles had received threats for ransom but,
only one of the Directors is roped ·in as accused because he had sought
(~
7)£IT/7
: 7 : 26-02-2015

police protection. Ld. Counsel submitted that to seek police protection

because there was threat from dreaded criminals was not an offence. How
such an act could be said to be part of criminal conspiracy of abduction
and killing of that criminal by some policemen?

11. Ld. Sr. Counsel further submitted that CBI relied on the loose
talks of jail inmates who were in a state of intoxication. That cannot be
good evidence to infer that the accused was part of criminal conspiracy.
Moreover, statements of witnesses are hearsay in nature. Tulsiram
Prajapati had written letters to so many authorities including National
Human Rights Commission but in none of such letters, he indicated
involvement of this accused in the crime of abduction and killing of
Sohrabuddin. Ld. Counsel pointed out statements of various witnesses,
i.e. PW-46 P.G. Soman, PW-n Suresh Mehta, and PW-13 Brij Gupta and
submitted that those statements are not admissible in evidence being
hearsay. There is no evidence to show that Accused No.20 Vimal Patni,
who had received threats from Sohrabuddin, was close friend of this
accused. There is no evidence to indicate that this accused had really met
Mr. Amit Shah at any point of time to discuss the plan to abduct and
eliminate Sohrabuddin. There is no evidence to connect him with the
alleged offence. He may be discharged.

12. As against this, Ld. Sr. Prosecutor Mr. B.P. Raju for the CBI
submitted that .it is not in dispute that this accused was then Home
Minister in the State of Rajasthan. He has been charged with the aid of
sec.120-A of the I.P.C. The evidence on record is required to be
considered in view of the offence alleged against him. PW-225 Rajnish
Rai clearly stated in his rejoinder filed before the Central Administrative
Tribunal, Ahmedabad, that this accused was bringing pressure on him
through Mr. Amit Shah to carry investigation in a particular manner.

.,·
/~
:~. ':.:-:: 7/mfg-
: 8 : 26-02-2015

Statement of -vvitness Ranvijay Singh is recorded under sec.164(5), Cr.

P.C. He stated that Mr. Vanzara, Mr. Katariya (this accused) and Mr. Om
Mathur held a meeting at Jag Mandir. \Vhat \Vas L~e reason for this
accused to hold meeting with Mr. Vanzara, a prime accused in the case of
abduction and killing of Sohrabuddin? When this mee.ting 'Was held,
Tulsiram Prajapati was alive. Hence, evidence about this meeting is
significan~ for consideration.. There are statements of jail inmates
showing participation of this accused in the crime. Their statements
cannot be discarded only because they were criminals. PW-46 P .G.
Soman stated that mvners of M/s R.K Marbles were well connected with
this accused. · There is enough evidence to frame charge against this
accused. Hence, his application may be rejected.

13. -Before I proceed to consider the evidence and material on

record so as to .form opinion whether there exists stro~g prima facie case
to frame charge against the accused, it will be proper to take note of some
of the rulings of Hon'ble Apex court e~laining the scope of the enquiry to
be undertaken by the Judge while deciding
.
an application
. under sec.227,
Cr.P.C.
"
14. Although both Ld. Sr~ Counsel for the accused and Ld. Sr.
Prosecutor relied on ni:unber of rulings, it is not necessary to mention all
of th~m~ Suffice it_ is to note soine of the latest rulings relied on by both
the Ld. Counsels. It is:.in the case of "Shoraj Singh Ahlawat & Ors.
vfs State ofU.P~ & OrS.'~ (?013 CrL L.J. 331) Hon'ble Apex court has
been pleased to succinctly lay dqwn the fqllowing principles:
"(1) That the Judge .while considering the question offraming the
charge_s under sec.227 ofthe Code has the undoubted power
. tO sift and Weig,r the !JVidence for the limited purpose of
. finding out wllether or not a priniafacie ca.se against the
accused has been made out: .
 ~
(,_ .:;!
7frrr/7
: 9 : 26-02-2015

(2) Where the materials placed before the Court disclose grave
suspicion against the accused which has not been properly
explained the Court will be fully justified inframing a charge
and proceeding with the trial.
(3) The test to determine a prima facie case would naturally .
depend upon the facts of each case and it is difficult to lay
down a rule of universal application. By and l~rge,.
however, if two views are equally possible and the Judge is
satisfied that the evidence produced before him while giving
rise to some suspicion but not grave suspicion against the
accused, he will be fully within his right to discharge the
accused.
(4) That in exercising his jurisdiction Hnder sec.227 of the Code,
the Judge which under the present Code is a senior and
experienced Judge cannot act merely as a Post Office or a
mouth-piece of the prosecution, but has to consider the
broad probabilities of the case, the total effect of the
evidence and the documents produced before the Court, any
basic infirmities appearing in the case and so on. This
however does not mean that the .Judge should make a roving
enquiry into the pros and cons of the matter and weigh the
evidence as if he was conducting a trial"

15. In the light of the above principles, I now proceed to consider

the facts of the case and evidence on record. In order to show the
complicity of this accused in the criminal conspiracy to abduct and kill
Sohrabuddin, his wife Kauserbi and Tulsiram Prajapati, prosecution relied
on the fact that a meeting took place in between this accused and Accused
No.1 D.G. Vanzara and Om Mathur. The prosecution also relied on the
statements of 17 witnesses, list of which is attached with the say of the
CBI, filed on record. I will first deal with the statements of witnesses and
thereafter evidence relating to the alleged meeting.

16. PW-4 Azam Khan stated that he was arrested alongwith

Tulsiram Prajapati in the murder case of Hamid Lala and was kept in
Central Jail, Udaipur. Tulsiram Prajapati told him that on 27-11-2005
he was arrested by In-charge of Hathipol police station Mr. Bhavar Singh

--~ ---~ ---'---~

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<
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<: Hada and DSP Sudhir Joshi. He v./as very much disturbed and was not
able to sleep because of information of encounter of Sohrabuddin. Hence,
.·,

Mr. Bhawar Singh Hada had given him charas to consume so that he can
get into sleep but he could not sleep. He overheard conversation between
Hada and DSP Mr. Joshi. DSP Mr. Joshi was telling to Mr. ·Ha'da that the
amount which was received from M/s RK. Marbles and M/s Sangam
Textiles (for this operation) was swallowed by l\1r. Gulabchand Katariya
and police got very little therefrom. I hold that the nature of the state!llent-
itself shows that it is hearsay and not admissible.

17. PW-4 Azam Khan refers two names .in his statement: (i)
Bhawar Singh Hada and (ii) DSP Mr. Sudhir Joshi. No doubt, he had also
referred to the name of Tulsiram Prajapati. Tulsiram Prajapati's
statement was recorded while he was under arrest in Hamid -Lala murder
case. That being statement of an accused before the police officer, cannot
be considered and, even otherwise also, he being dead cannot be
examined as a witness.

18; Quickglance at the statements ofMr. Hada and Mr. Sudhir

Joshi would, show that they did not state· that they had any dialogue
amongst them, as stated by Tulsiram Prajapati. in short, this piece of
evidence is not helpful.

19. The pr~secution relied on :fue statement ofPW-5 Rafique@

Bunti Sh. Mohd. Hafiz and PW;..6 Dinesh Gmjar. Both of them stated
.,
that they came to know from 'fulsitam Prajapati that monies received
from M/s R.K. Mar~les and M/s Sangam Textiles were taken by this
accused. The statements a;re,. again hearsay in nature
; .; r
and are not-' .•

corroborated by other witne~s~s~

('1 rjRC/It
: 11 : 26-02-2015

20. Witness P.G. Soman and PW-47 Fateh Singh Rathore stated
that they knew that R.K. Marbles were having close contacts with this
accused and other leaders of B.J .P ., Rajasthan. They came to know from
newspaper articles that owners of R.K. Marbles had contacted this
I
accused. In turn, this accused approached Mr. Amit Shah, Home Minister
of Gujarat. Thereafter, Sohrabuddin was abducted and killed in
encounter. Again, such evidence being hearsay is not admissible and not
useful to connect this accused with this crime.

21. Besides this, prosecution relied on the incident of alleged

meeting in between this accused, Accused No.1 D.G. Vanzara and Mr. Om
Mathur in Jag Mandir, Udaipur. According to the prosecution, this
meeting was held on 28-12-2006 i.e. one year after encounter of
Sohrabuddin and a day after the encounter of Tulsriam Prajapati. It is
not in dispute that Tulsiram Prajapati was killed on 27-12-2006 at 3 a.m.
It is necessary to see the evidence regarding this meeting and its
signific.ance relating to abduction and killing of Sohrabuddin, which had
taken place one year prior to the alleged meeting, and so also encounter of
Tulsiram Prajapati which had taken place 12 hrs. prior to this meeting;

22. To establish the. fact that such meeting was really held, the
prosecution .relied upon the statements of PW-11 Suresh Mehta, PW-12
Phool Chand, PW-13 Brij Gupta, PW-14 Ashok Gupta, PW-15 Phool Singh
Meena and Mr. Ranvijay Singh. Out of them, PW-11 Mehta stated that in
between 27-11-2005 and 30-11-2005, Mr. D.G. Vanzara stayed in
Government Circuit House at Udaipur. Prior to that, on 26-11-2005, P.A.
to then Home Minister, Rajasthan, had come and stayed there. I do not
find any nexus of above facts with the alleged crime. PW-12 Phool Chand,
PW-13 Brij Gupta and PW-14 Ashok Gupta also stated same facts.
[:'\
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23. It is say of the prosecution that Sohrabuddin -\vas killed in

fake encounter on 26-11-2005. It appears from the statements of above
-..vitnesses that on 27-11-2005 D.G. Vanzara had gone to Udaipur for some
official tour. It is in the statement of PW-12 Phool Chand that Room No.
21 in Circuit House \.Vas reserved by M.N. Dinesh, then S.P., 'Udaipur, on
telephone message. Prior to that on 26-11-2005 P.A. of this accused and
one of his guest Ashok Gupta had stayed there. None of the above
witnesses stated that in between 27-11-2005 and 30-11-2005 there was a
meeting in between D.G. Vanzara, M.N. Dinesh and this accused held in
the Circuit House, Udaipur. What is gathered from their statements is
that on 26-11-2005 P.A. of this accused and Mr. Ashok Gupta had stayed
in the Circuit House, whereas between 27-11-2005 and 30-11-2005, 1v1r.
D.G. Vanzara had stayed there. On the basis of such statements, no
inference can he drawn that the above persons had stayed in the Circuit
House at Ud;;tipur, as a part of criminal conspiracy to abduct and kill
Sohrabuddin.

24. As far as the meeting dated28-12-;;wo6 between this accused,. ·

Accused No.1 D.G. Vaniara and Mr. Om Mathur held at Jag Mandir is
concerned, the prosecution relied on the state~ent of Mr. Ranvijay Singh.
He stated that some days after encounter of Sohrabuddin, Mr. D.G.
Vanzara had come to Udaipur.· S.P. Dinesh M.N. deputed him to
aCCOJ?pany Mr. Vanzara for sight seeing. Mr. Vanzara visited Jag Mandir
- a well-known historical place and having restricted entzy only to VVIPs.
When he received Mr. Vanzara thett!, he found two leaders in white colour
kurta and pyjama. One of them was this accused. According to the
prosecution, other person was Mr. Om Mathur. Mr. Ranvijay Singh
further stated that this ac~sed, Mr. Vanzara and Mr. Mathur occupi~d

one table in a corner of th~. restaurant at Jag Mandir and were talking
something secretly. He state~ that he left the place with Mr.Vanzara's
~~
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7 /T?Jr/13
: 13 : 26-02-2015

wife to show her the lake around Jag Mandir.

25. If at all the above statement of Mr. Ranvijay Singh is accepted

as it is, I hold that it is not enough to infer that the accused may be one of
the conspirators of abduction of Sohrabuddin, his wife Kauserbi and
Tulsiram Prajapati. From the statement of Mr. Ranvijay Singh only fact
that can be gathered is that on 28-12-2006, Mr. D.G. Vanzara:. Accused
No.1 in this case, had visited Jag Mandir, Udaipur, alongwith his wife. On
the same day, he met this accused and Om Mathur and there were talks in
between them. It is significant to note that CBI did not record the
statement of Mr. Om Mathur. He is not made the accused in this case.
There is no evidence on record to show what were the talks that had taken
place in between them. Moreover, only because this accused met
Mr. D.G. Vanzara is not enough to connect this accused with the alleged
crime. Here, in this case, I find that most of the evidence appearing
against this accused in the statements of witnesses is of hearsay nature.
They cannot be relied upon. The alleged meeting in between this accused,
Mr. D.G. Vanzara and Mr. Om Mathur at Jag Mandir is not enough
circumstance to draw inference that this accused is party to the criminal
conspiracy. There is no evidence on record to show that this accused was
in close contact with the owners of R.K. Marbles because, it is say of the
prosecution that at the instance of owners of R.K. Marbles, this accused
-._
requested Mr. Amit Shah to look into the matter of apprehending
Sohrabuddin etc. There is no evidence on record to show that there was
meeting in between Mr. Amit Shah and this accused at any point of time to
discuss the plan of abduction of Sohrabuddin. This court had already
discharged Mr. Amit Shah finding no legal evidence against him. In view/
of the record of the case and the evidence on record, I have come to the
conclusion that there is no material to proceed against this accused to
frame charge against.him. Hence, I pass the following order:-
 !-·~---/-~

(n.
7 { JJ.L-/1 4-
._ .<I i '

14 26-02-2015

ORDER
Accused No.21 Gulabchand Katariya stands discharged of the
offences punishable under sections 120-B, 364, 365,
368, 341, 342, 302 and 201 of I.P.C. in Sessions Case
Nos.177-2013@ 178-2013@ 577-2013 @ 312-2014
pending in this court.
He is, however, directed to execute fresh bond in the
sum of Rs.so,oooj- under sec-437-A, Cr. P.C.

,. .... _. -~ .,......~ ......... ATTT"'\

tlVl~tl. \.iU;:)AV 1)
Special Judge for CBI,
Date:- 26-02-2015 Gr. Mumbai.

Dictated on 26-02-2015
Transcription
completed on 04-03-2015
Signed on 04-03-2015

' '
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IN THE COURT OF SPECIAL JUDGE FOR CBI AT

GREATER BOMBAY

APPLICATION (EXHIBIT N0-394)

IN
SESSION CASE NOS.177 j2013 @ 178/2013
@ 577/2013 and@ 312j2014

Smt. Geetha .A.nil Johri,

Addl. DGP & MD, GSHPC,
Gandhi nagar,
Residing at: B/31, 32 Tulsi Row House,
Satellite Road, Ahmadabad. ..Applicant/
(Original Accused No.36)
Vjs.

CBI., S.C.B. Mumbai. ..Respondent.

Sr. Adv. S.V. Raju for accused No.36.

Mr. B.P Raju, Spl.P.P. for the CBI.
CORAM: The Special Judge
M.B. GOSAVI.
DATE: 02nrl March, 2015.

Order below Ex.394

1. Accused No.36 Smt Geetha Anil Johri has filed this
application under sec.197, Code of Criminal Procedure, 1973 rjw s.161 of
Bombay Police Act, for dropping the prosecution initiated against her by
the CBI under sec.l20~B, rjw 302, 34 of I.P.C. for want of sanction to
prosecute her by the State Government.
0 .'
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2 7/JK!r'{ L
2. She stated that at the material time, she ·was posted as
Inspector General of Police, CID, Crime. As she was holding the post of
Inspector General, she was not removable from her office save and except
by or with the sanction of the Government. According to the Applicant,
whatever acts, omissions she did and whatever instructions she gave to the
Investigating Officer P.I. Vasant Laljibhai Solanki in Sohrabuddin
encounter case, were given by her while' discharging her official duty and,
hence, sanction to prosecute her from the State Government was required,
which is not obtained.

3· The facts in brief to know the allegations against the

Applicant are. as fo11ows :-
i) On 26-11-2005 one Sohrabuddin was killed in alleged
encounter by the ATS, Gujarat, and RSTF, Rajasthan. His wife Kauserbi
went missing. For that irtcident, crime was registered and investigation
was carried by ATS, Gujarat. After investigation, abate summary was sent
to the Court of Ld. Magistrate stating that the encounter was genuine. No
reference was made about missing ofKauserbi.

4· Sohrabuddin's brother Rubabuddin Sheikh felt some foul-

play about killing of his brother Sohrabuddin and disappearance of his
wife I<auserbi. He filed complaint/application to the Hori'ble Supreme
Court with a request to'look into the encounter. Hon'ble Supreme Court
'
forwarded the said complaint application to the Director General of Police,
. i . .' ' ~ ·: , I

Gujarat. DGP instructed CI:Q, Crime, to' hold enquiry into the matter.
The Applicant being Inspectqr General .of Police, CID, Crime, was
supervising the enquiry. Mea:Iltime, Tulsiram Prajapati was also killed in
. .

fake encounter by the police. Tulsirain. Prajapati was the eye-witness t.o/
the abduction of Sohrabuddin and 'Kauserbi. Mr. Rubabuddin Sheikh had
filed a Writ Petition because there was no progre~s in pace about. the

·----~-----~------------ . --··-·~--~ ---

:~

3
7/WE(J
enqmry. Ultimately, Hon'ble Supreme Court directed the CBI to carry
further investigation about the killing of Sohrabuddin and Kauserbi and
encounter ofTulsiram Prajapati.

5. During investigation by the CBI, it was ~evealed that

Applicant did not send first enquiry report prepared by PI, V.L. Solanki,
Investigating Officer, to the Supreme Court in time. At the instance of
Minister of State (Home), Gujarat, the Applicant asked IO, Mr. V.L.
Solanki to change the enquiry report. Mr. V.L. Solanki had sought
permission to go to Udaipur in order to record the statement of Tulsiram -
Prajapati as he was then alive but the Applicant being supervising officer,
, did not accord such permission in time. According to the prosecution, the
Applicant did not give permission to Mr. V.L. Solanki to go to Udaipur
only with a view to cause disappearance of material evidence against
senior police officers involved in the fake encounter. It is also alleged
against the Applicant that when the investigation was being under her
supervision, she projected that the third person abducted alongwith
Sohrabuddin and Kauserbi was oiie Kalimuddin and not Tulsiram
Prajapati. It was intentionally done by her. Lastly, it is alleged that at the
instance of the Minister of State (Home), Gujarat, she gave illegal
instructions to the I.O. who was investigating the crime.

6. The Applicant vehemently denied all the allegations

appearing against her in the charge-sheet. She produced on record some
documents to show falsity of the allegations. She pointed out that even
otherwise, whatever acts and omissions alleged on her part, were in
respect of discharge of her official duty as Inspector General of Police.
Hence, sanction to prosecute her under sec.197, Cr. P.C. was imperative.
For want of such sanction, prosecution against her may be dropped
without taking cognizance.
I~
\ >,I

4 7fv11T' /4
.., She also contended that the incident of fake encounter of
I'

Sohrabuddin and even Tu1siram Prajapati took place in the year 2005 and
2006 respectively. It is not t..~e say of the prosecution itself that she was
any way connected with those incidents and her participation thereto.
. I

Applicant further contended that charge-sheet ought to have been filed

within one year from the date of alleged incidents, because her so-called
actions relating to the offence were connected with the discharge of her
official duty. Hence also, prosecution against her is bad in law under
sec.161 of Bombay Police Act, 1961.

8. CBI filed say at Ex.396 to resist the application. It is stated

that the Appiicant caused delay in sending the report to the Supreme
Court; carried corrections in the station diary; she brought pressure on the
I.O. to change the AT.R.; she noted that the third person travelling¥.-ith
Sohrabuddin ~nd Kauserbi was not Tulsiram Prajapati but may be one
Kalimuddin, only to derail proper course of investigation. Such acts did
not fall within the discharge of official duty. The Applicant cannot claim
protection under ·sec.197, Cr. P.C. Hence, her application may be ·
dismissed; It is also contended that CBl received investigation by order
of Hon'ble Supreme Court in 2010 itself~ ' H~nce, provisions of sec.I61,
Bombay Police Act has no application. .

g. I heard arguments ofLd. Sr. Counsel Mr. S.V. Raju appearing

on behalf of the APPlicant, Ld. Sr. Pfo~ecutor Mr. B.P. Raju for the CBI.
On behalf of the nrlonnant Mr. Rubabuddin Sheikh, his Counsel Mr. Vijay
Hiremeth filed wntten argwne~ts at Ex.546. I haye perused the same.

10. Ld. Sr. Counsel Mr. S.V..Raju submitted that what acts,
' . . j • '
omissions do fall within the ,ambit of discharge of official duty are now
well settled by the Hon'ble Supreme Court. ·If the alleged acts or
. \, I .J . .
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omissiOns on the part of the public servant has some reasonable
connection with his official duty as public servant, then such public
servant is entitled to get protection under sec.197, Cr. P.C. He relied on
the rulings of :
I

i) State ofMaharashtra vs. Dr. Budhikota Subbarao

((1993) 3 sec 339),
ii) Rakesh Kumar Mishra vs. State of Bihar ((2006) 1 SCC
557),
iii) Surendra Pande vs. State ofBihar ((2ooo) 9 SCC 149)
iv) Omprakash vs. State of Jharkhand ((2012) 12 SCC 72)

11. Ld. Counsel further submitted that the provisions of sec.197,

Cr. P.C. are mandatory in nature. In the absence of sanction to prosecute
the public servant, the court cannot take cognizance thereof. He relied on
the rulings of:-
i) C.B.I. vs. B.L. Varma ((1997) 10 SCC 772),
ii) State of Himachal Pradesh vs. M.P. Gupta ( (2004) 2
sec 349)
iii) State ofMaharashtra vs. Dr. Budhikota Subbarao
((1993) 3 sec 339).

12. Alongwith her application, the Applicant produced certain

documents to sustain her contention that she was acting in discharge of
her official duties and to show falsity of the allegations against her. Ld.
Sr. Counsel submitted that this court can look into those documents,
though they are not part of the charge-sheet. He relied on the ruling of
''Suresh Kumar Bhikamchand Jain vfs Pandey Ajay Bhushan &
Ors." ((1998) 1 sec 205)

13. On facts, Ld. Sr. Counsel submitted that the Applicant cannot
 _ .•-··· -.-.--.-~c~til>.•.u;.....U..:•"IIlt..ln~ .... '·'· ;, 'l..••··~·-•,·,,·, •.. •·•'•-''•'•'•'·'•"><'•'

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6
1(mr: f b
be held responsible to send the rep01i to the Hon'ble Supreme Court lately
because, she was not supposed to send such report directly to the Supreme
Court. She was to send the same to the Office of DIG, which she did in
time. , There is no evidence to show that Minister of State (Horne) had
held any meeting With the DIG, Addl. DIG and the Applicant in respect of
the on-going enquiry. The Applicant did not bring pressure on the
Investigating Officer Mr. V.L. Solanki at any point of time. In fact, Mr.
V.L. Solanki was not the main I.O. but one Dy.S.P. Munia was the LO.
There was no question of the Applicant giving instructions to Mr. V.L.
Solanki. Ld. Counsel brought to my notice the statement of Mr. V.L.
Solanki in which he had stated that the Applicant had given her consent to
him to go to Udaipur to record the statement of Tulsiram Prajapati when
he was alive.' n shows the Applicant's b<?na-fides about the On'-gomg
investigation ..

14. Ld. Counsel further submitted that the Applicant is not the
only superVisl~g officer to note her opinion that Tulsiram Prajapati may
not be an eye;..witness to the abduction
.
of Sohrabuddin and his wife--
. Kauserbi but third person may be ;Kalimuddin. She noted her opinion on
the basis of· evidence collected by the I:O.-'·-. Other supervising officer
Mr. Rajneesh Rai, AddL, DIG, had .expressed the s:;une opinion when he
was replaced as supervising officer in place of the Applicant. Even
otherwise, noting opinion as above is an act which would fall Within the
discharge of officiru du:ty and; ~ence, the Court would not be in a position
to take cognizahc~ of the offen,~ alleged against her.

15. Ld. Sr. Counsel for the Applicant further submitted that the
·'

charge-sheet against the Applicant was not filed Within one year from the
date of offence as per sec.:L61 of ~ombay Police Act; 1961. Charge-sheet
in respect of rulegations
'
agai~st
;
a police officer is required to be filed
0-~
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7 7/Bir/7
within one year from the date of offence and, if not filed, the court cannot
take cognizance. He relied on the ruling in "Verupaxappa Kadampur
vjs State of Mysore" (AIR 1963 SC 849) and "K. K. Patel vjs State
ofGujarat" ( (2ooo) 6 SCC 195).

16. Ld. Sr. Prosecutor Mr. B.P. Raju submitted that in this case
the Hon'ble Supreme Court directed the CBi to _carry further investigation
after five years from the date of alleged incident. In such situation,
provisions of sec.161, Bombay Police Act and the rulings relied on by the
Ld. Defence Counsel are not applicable as far as facts of this case. There
is .clinching evidence on record against the Applicant to show that she
acted beyond the scope of her official duty only with a view to save some
offenders being implicated and, also to cause disappearance of material
evidence. He pointed out statement of witnesses N.K. Barot and Mr.
V.L. Solanki directly implicating this Applicant as one of the conspirators
and, hence, the Applicant cannot seek protection under sec.197, Cr. P.C.
He further submitted that in the case of "Omprakash vs. State of
Jharkhand" ((2012) 12 SCC 72) (supra) the Hon'ble Supreme Court
made it clear that when there are allegations of encounter against police
officers, they cannot claim protection under sec.197, Cr. P.C. He prayed
for dismissal of the application.

17. In written submissions filed at Ex.546, Ld. Advocate for

informant Mr. Vijay Hiremath almost accepted the submissions of Ld.
Prosecutor. He relied on the·same rulings on which Ld. Prosecutor relied ·
to submit that the application is not maintainable.

18. I have gone through the relevant evidence on record on which

the prosecution relied against the Applicant. I have considered the
submissions made at the bar by Ld. Sr. Counsel for the Applicant and
0
() 7fvrrrJq
"'
Ld. Sr. Prosecutor and so also vvritten submissions filed on behalf of the
informant. I have gone through the relevant provisions of law and the
various rulings relied on by the Ld. Counsels for both sides.

19. It would be appropriate to reproduce the proVisions of

sec.197, Cr. P.C. in verbatim to know its applicability. Sec.197, Cr. P.C.
reads as under :-
"197· Prqsecution ofJudges and public servants--
(1) When any person who is or was a Judge or Magistrate or a
public servant not removable from his office save by or with
the sanctionfthe Government is accused of any offence
alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty, no
Court shall take cognizance of such offence except with the
previous sanction -;-
(a) in the case of a·person who is employed or, as the case may
be, was at the time of commission ofthe aUeged offence
employed, in connection with the affairs ofth~ Union, of
the Central Government; '
(b) in the case of a person who is employed or, as the case may
be, was at the time of commission of the alleged offence
a
employed, in connection with the affairs of State, of the
State Government: ·

. provided that where the alleged offence was committed ~ ...............

by a person referred to in clause. '(b) during the period

while a ProClamation issued under clause (1) ofArticle
356 ofthe Constitution was in force in a State, clause. (b)
will apply as iffor the expression "State Government"
·occurring therein, the expression "Central Government"
were substituted. · · ·

(2) · No c6urt shall ta~e' cognizan,ee of any offence alleged to

have been committed by any'member of the Armed Forces
of the Union while,actirig orpilrporting to act in the
discharge of his 'official duty, except with the previous
sanction of the Central Government.

(3) The State Govtiniment may, by notification, direct that

the provisionsofsub-section (2) shall apply· to such class
or category ofthe members of the Forces charged with
the maintenance ofpublic orde~ as may be specified
l
{'"'1-
1... :1

9
7/P!Il-/7
therein, wherever they may be serving, and thereupon
the provisions of that sub-section will apply as iffor the
expression "Central Government" occurring therein~
the expression "State Government" were substituted.

(3-A) Notwithstanding anything contained in sub-section (3),

no Court shall take cognizance of any offence, alleged
to have been committed by any member of the Forces
charged with the maintenance of public order in a
State while acting or purporting to act in the discharge
qf his official duf:l:J during the period while a Proclamation
issued under clause (1) ofArticle 356 of the Constitution
was in force therein, except with the previous sanction
of the Central Government.

(3-B) Notwithstanding anything to the contrary contained in

this Code or any other law, it is hereby declared that any
sanction accorded by the State Government or any
cognizance taken by a Court upon such sanction, during
the period commencing on the 2dh day ofAugust, 1991
and ending with the date immediately preceding the date
on which the Code of Criminal Procedure (Amendment)
Act, 1991 receives the assent of the President, with respect
to an offence alleged to have been committed during the
period while a Proclamation issued under clause (1) of
Article 356 of the Constitution was in force in the State,
shall be invalid and it shall be competent for the Central
Government in such matter to accord sanction and for
the Court to take cognizance thereon.

(4) The Central Government or the State Government, as the

case may be, may determine the person by whom, the
manner in which, and the offence pr offences for which,
the prosecution of such Judge, Magistrate or public
servant is to be conducted, and may specify the Court
. before which the trial is to be held."

20. The scope of the term "any offence alleged to have been
committed by him while acting or purporting to act in the discharge of
his official duty" appearing in sec.197 has been explained by the Hon'ble
Apex Court in various rulings. It is not necessary to quote each of them.
 , •• ~-········· •• ·"'-~'"-•'L......_.. .. . . o""'' c.o.• ·~·-• •••· , •••• o.

c
!0 /IJZJK
,I .,',(II

Suffice to take note of one of the latest ruling on which Ld. Defence
Counsel and Ld. Prosecutor and Ld. Advocate for the informant relied. It
is in the case of "Omprakash vs. State of Jharkhand" ((2o12) 12 SCC
72) (supra). In para 29 of said ruling, Hon'bie Apex Court observed
that:-
"The true test as to whether a public servant was acting or
purporting to act in discharge of his duties would be
whether the act complained of was directly connected with
his official duties or it was done in the discharge of his
official duties or it was so integrally connected with or
attached to his office as to be inseparable from it. The
protection given under section 197 of the Code has certain
limits and is available only when the alleged act done by the
public servant is reasonably connected with the discharge of
his official duty and is not merely a cloakfor doing the
objectionable act. If in doing his official duty, he acted in
excess of his duty, but there is a reasonable connection
between the act and the performance of the official duty, the
excess will not be a sufficient ground to deprive the public
servant of the protection. " ...... .

It has been further held by the Hon'ble :Apex Court in this ruling that:-
"Unless unimpeachable evidence is on record to establish
that their action is indefensible, mala-fide and vin_dictive,
they cannot be subjected to prosecution. Sanction must be a
precondition to their prosecution. , It affords necessary
.Protection to such police personnel. Plea regarding sanction
.·can be raised at the inception."

It is also now well-settled that the quality of the act or omission of the
public· servant is- required to he considered in order . to make the
provisions of sec.197, er~· P.C. applieable to a particular case.

21. The Applicant ,had produced on record some documents along

with her application. Those docpmen_ts are not part of the charge-sheet.
Ld. Sr. Counsel for. the Applicant .submitted that the Applicant is within
. . .

her right to produce those documents to afford protection of law. To

substantiate his argument, he .·relied on the ruling "Suresh Kumar
.\ j
(-

11 7(J1IL/u
Bhikamchand Jain vfs Pandey Ajay Bhushan & Ors." ((1998) 1
SCC 205) (supra). Hon'ble Apex Court observed therein :-
"The legislative mandate engrafted in sub-section (1) of
section 197 debarring a Court from taking cognizance of an
o...ffence except with a previous sanction of th~ Government
concerned in a case where the acts complained of are alleged
to have been committed by a public servant in discharge of
his official duty or purporting to be in the discharge of his
official duty and such public servant is not removable from
office save by or with the sanction of the Government
touches the jurisdiction of the Court itself It is a prohibition
imposed by the statute from taking cognizance, the accused
after appearing before the Court on process being issued, by
an application indicating that section 197 (1) is attracted
merely assists the Court to rectify its error where
1-. • 1-. • ..1 T
]Urzsazcnon
• • 1• • •
1
nas oeen
1 • ..:1
exerczseu WulCIL 1t uoes not possess .... n
such a case there should not be any bar for the accused
producing the relevant documents and materials which will
be ipso facto admissible, for adjudication of the question as
to whether in fact section 197 has any application in the case
in hand. It is no longer in dispute and has been indicated by
this Court in several cases that the question of sanction can
be considered at any stage of the proceedings."

22. It is also now well-settled that the accused public servant can
raise the point of non-taking sanction to prosecute him at any stage of the
proceeding. In this case, in fact, the Applicant has filed this application at
the initial stage i.e. immediately after filing of the charge-sheet against
>

her.

23. Now I proceed with the facts of the case and the allegations
appearing ·against the Applicant.

24. At the outset, it is to be noted that the Applicant is not

concerned with the alleged abduction and killing of Sohrabuddin or
causing disappearance of his wife Kauserbi by ATS, Gujarat and RSTF,
('~

12 71I r/111 I
/11.-

Rajasthan. She has been arrayed as an accused primarily on the

allegations that:
(i) she brought pressure on the I.O. Mr. V.L. Solanki to carry
investigation in a particular manner only to shield some senior police
officers,
(ii) she intentionally noted her opinion that the third person
abducted from the luxury bus may not be Tulsiram Prajapati but he may
be one Kalimuddin. According to the prosecution, this opinion was noted
only to avoid recording statement ofTulsiram Prajapati in time by the I.O.
as he was then alive.
(iii) The Applicant asked Mr. N.K. Barot- a police writer - to make
entry dated 03-01-2007 in File Movement Register stating that
Investigation Progress Report file was sent to the office of DIG on
20-12-2006 and it was received back by her office on 03...:01-2007 only,

though in fact,the
.
file was in her office
'.
only. It .was done to delay the
investigation and to come out of the blame that Tulsiram Prajapati's
statement could not be recorded as file was in the office of DIG. Tulsiram
Prajapati was killed in fake encounter during that period.
. (iv) In order to sav~ high profile senior police officers and Minister '-,

of State (Ho~e), she strQck down some words·fr~m the official notip.g ..

25. The prosecution relied on the statements of four witnesses

again~t her. These witnesses are: V;L. Solanki, G.C. Raiger, Rajendra V.
Acharya and N.K. Barot. I have gone through their statements. Out of
·them, G.C. Raigerand R.V. Acb,~a d.id not implicate the Applicant in any
manner. G.C. Raiger statedJ~his ~tatement that the Minister of State
(Home) was giving some illeg~l instruc;tipns. He did not directly implicate
the Applicant. Mr; R.V. Aqharya st~ted that in his presence Mr. V.L;
Solanki met the Applicant -in. her chamber and when Mr. V.L. Solanki
came out, he found him (V.L. .. Solanki)
·' . '
disturbed. Mr. Solanki had written
'~
r-.
\

13
7(£IIL/t3
some application in his presence on some paper. In short, his statement
also did not implicate the Applicant. Hence, it is necessary to go through
the statements of PW-163 V.L. Solanki and witness N.K. Barot.

26. CBI recorded five statements of Mr. V.L. Solanki in between

27-05-2010 and 11-08-2012. In the first statement dated 27-05-201_0,
Mr. V.L. Solanki stated that in the first week of November, 2006
Smt. Geetha J ohri called him to her chamber and asked him to change the
Investigation Progress Report (IPR) to which he refused. l\.1r. Solanki
was then referring to the IPR of December, 2006. According to him, that
report was not changed. That report is on record being No.l00/2006
dated 7-12-2006. The allegation of CBI against the Applicant is that she
asked Mr. Solanki to change this report to shield some senior police
officers and to conceal identity of third person abducted from the luxury
bus. Perusal of this report shows that Mr. Solanki had then recorded
statements of some passengers in the luxury bus by name: Sharad Apte,
Anjali Apte etc. but none of them stated that they identified the third
person travelling with Sohrabuddirt and Kauserbi. It appears from their
statements that they identified Sohrabuddin and Kauserbi by looking to
their photographs shown by Mr. Solanki, as persons travelling in the
luxury bus but photograph of Tulsiram Prajapati was not shown to them.

27. If the above statement of Mr. V.L. Solanki is accepted as it is,

it does not support the prosecution charge against the Applicant that she
tried to conceal the 'identity of Tulsiram Prajapati - an eye-witness to the
abduction of Sohrabuddin- only to save some police officers. Moreover,
Mr. V.L. Solanki did not state what was suggestion of the Applicant about
this report. Applicant was admittedly supervising the on-going enquiry.
It was within discharge of her official duty to give some instructions to the
I.O. about the contents of the IPR which was to be submitted to the DIG, if
/':
. .>

14
7fm1t't
at all she had given any such instructions.

28. Second allegation against the Applicant is that she did not
permit Mr. V.L. Solanki to go to Udaipur in order to record the statement
I

of Tulsiram Prajapati when he was. alive. This allegation, again, appears

to be factually incorrect because Mr. Solanki in his statement dated
27-05-2010 had clearly stated that: "I had thoroughly discussed the need
for examination of these persons (Tulsiram Prajapati, Sylvester etc.) with
Smt. Geetha Johri. She was fully convinced and had given her consent to
examine them by going to Udaipur." Moreover, to have a discussion
about the progress of the investigation certainly falls in the realm of her
official duty as she was then IGP.

29. It is further alleged against the Applicant that she

intentim:mlly expressed opinion stating that "the person who ~as picked
up alongwith the- victims · Sohrabuddin and Kauserbi was ;not Tulsiram
Prajapati is· established by eye-witnesses and he was most probably be
one Kalimuddin." This noting appears in ATR dated 02-08-2007 sent to
the Hon'ble Supreme C,ourt. In fact, it was an opiniol). of the senior police
officer of IGP level in respect of the evidence collected by the I.O. It was
certainly in discharge of her official duty. · Moreover, not only the
. Applicant, but another supervising officer Mr. Rajneesh Rai, Addl. DGP, in
his report dated 12-04~2007 had clearly·noted that "no evidenc~ so far has
come on record to suggest that Tulsiram Prajapati @ Prafulla was witness
to the conspiracy of abduction of Sohrabuddin and Kauserbi. Efforts are
being made to collect the evidence." No further comments are required
on this aspect. Even accepting that the Applicant made incorrect
statement about the identity of the third person travelling with
Sohrabuddin arid Kauserbi,it was within discharge of her official duty.

...
b.
'

15 7(.JJJL/ts
30. Statement of witness by name N.K. Barot is recorded by
Judicial Magistrate, FC, Navi Mumbai. Mr.Barot stated that the Applicant
was on leave from 23-12-2006 to 01-01-2007. On 03-01-2007, the
Applicant asked him to take entry of the file of Sohrabuddin encounter
I

case investigation in between entry No.362 and 363, mentioning that said
file was pending in the office of DIG from 20-06-2006 to 03-01-2007,
though the file was in the office of the Applicant only. Mr. Barot further
stated that the Applicant asked him to make such false entry to show that
the file was not in her office, only 1.vith a view to avoid blame of keeping
such an important file pending. It is not in dispute that in between
23-12-2006 and 01-01-2007 the Applicant was on leave. Hence, if at all
the file was pending in her office, it was only for four days. i.e. from
19-12-2006 to 22-12-2006 when the Applicant was on duty. Thereafter
she proceeded on leave. During the period of her leave, one Mr.Krishna
Kumar was kept in charge of her post. In fact, omissl.on to send the file in
time to the office of DIG certainly falls in discharge of her official duty.
Asking Mr. Barot to make a new entry between Entry Nos.362 and 363
may be an irregularity, but it was certainly relating to the discharge of
official duty. On the basis of such act, no inference can be drawn that as
the Applicant was part of criminal conspiracy, she directed Mr. Barot to
make such entry.

31. Lastly, the Applicant carried some changes in the noting,

striking out the words "Government Supporting Agencies". In fact, if at
all she struck out such words, it shows her bonafides that she was very
keen in carrying out investigation in proper manner but there was some
obstruction. In fact, that note was in the form of displeasure about the on-
going investigation which was being carried by the then I.O. Such
evidence cannot be said to be evidence on fact to show that she acted
beyond discharge of her official duty.
?\

16
-, frru-~II b

32. Main allegation of the prosecution against the Applicant is

that she tried to conceal the fact that the third person travelling in the
luxury bus alongwith Sohrabuddin and Kauserbi was none else but
I

Tulsiram Prajapati. She did so only to avoid to record the statement of

Tulsiram Prajapati. Thereafter, Tulsiram Prajapati was killed in stage-
managed encounter. As far as this aspect is concerned, crucial period is
in between 03-05-2006, i.e. the date on which DGP, Gujarat, directed the
CID, Crime, to make enquiry about the complaint of Mr. Rubabuddin
Sheikh, and 27-12-2006 on which day Tulsiram Prajapati was killed.
I examined the evidence collected by the prosecution about this aspect.

33. On 01-09-2006 detective Police Inspector, CID, Crime,

submitted his first report. Perusal of it shows that he did not get any
eviden~e to come to the conclusion that the third person tntvelling with
Sohrabuddin and Kauserbi was Tulsiram Prajapati. Hence, Applicant has
no reason to withhold th!s report for any purpose.

34. On 16-12-:2006, second interim r.eport of enqmry was

submitted by Mr. V.L. Solanki. In this report, it is mentioned how
Mr. M.L. Parmar (other accused) had booked Disha Farm-House in order
to keep Sohrabuddin and Kauserbi there for some days. This report is
silent on the aspect that Tulsiram Pr~japati was taken into <;ustody from
the luxury bus alongwith Sohrabuddin and Kauserbi. It is a matter of
record that in July, 2007 CID, Grime, filed charge-sheet against 13 police
officers/policemen in the Court · of Chief Metropolitan Magistrate,
Ahmedabad, vide CC No.2405/2007. Till then, no credible evidence has
come to light to know who was the third person abducted from the luxury
bus. In short, it is seen from perusal of the ATR sent in between
03-05-2006 and 27-12-2006 that investigating officers were not in a
..:..·
/'

17
7/:MLt-jt7
position to form any definite opinion that the third person travelling in the
luxury bus alongwith Sohrabuddin and Kauserbi was none else but
Tulsiram Prajapati, on the basis of the evidence that wa,s collected by
them. Hence, the allegation that the Applicant intentionally concealed
I

the fact that the third person was Tulsiram Prajapati has no base. She
expressed such opinion on the basis of the evidence collected by the I.O.
It is well within the discharge of her official duty.

35. The applicant also raised the point that in view of sec.161 of
The Bombay Police Act, 1961 this court cannot take cognizance of the case
against the Applicant because the charge-sheet is not filed against her
within a period of one year from the date of alleged offence. I have gone
through provisions of sec.161 of Bombay Police Act and the rulings relied
on by Ld. Sr. Counsel explaining the scope of that provision. It is not in
dispute that Sohrabuddin was killed in fake encounter in November,
2005. Tulsiram Prajapati was was killed in December, 2006 whereas, the
charge-sheet against the Applicant is filed on 04-09-2012. However, it is
not in dispute that CBI was entrusted with further investigation of this
case by Hon'ble Supreme Court in 2010. During further investigation,
CBI found some infirmities about working style of the Applicant and she
was made the accused. Above facts apparently show that provisions of
sec.161 of Bombay Police Act and the rulings relied on, are not applicable
at all.

36. In short, taking into consideration all the allegations as

appearing against the Applicant as they are and without any explanation
by the Applicant thereto, it is seen that all the acts and omissions alleged
on the part of the Applicant do fall within the discharge of her official duty
as IGP. I hold that in such situation, sanction from the State Government
under sec.197, Cr. P.C. was necessary to obtain before prosecuting her in
("\

18 71 J.1lL_ /if"
this case. For want of such sanction, this court cannot take cognizance of
the alleged offence. Hence, I allow the application and proceed to pass the
following order :-
ORDER
I

The prosecution against Accused No.36 Smt. Geetha Johri

stands dropped for want of sanction under section 197, Cr.
P.C.
However, she is directed to execute PR Bond of
Rs.1s,oooj- as per sec-437-A, Cr. P.C.
Exh.394 stands disposed of accordingly.

(M.B. GOSAVI)
Special Judge for CBI,
Date:- : 02..,03-2015 Gr. Mumbai.

Dictated on : 02-03-2015
Transcription
completed on : 05-03-2015
Signed on : 05-03-2015

:;....
(\

7/§/1
IN THE COURT OF SPECIAL JUDGE FOR CBI AT
GREATER BOMBAY

APPLICATION (Exhibit No.525)

m
SESSION CASE NOS.177/2013@ 178/2013
@ 577/2013 and@ 312j2014

Om Prakash Mathur,
having address at Bungalow
No.18, Officers Colony,
Dufnala, Shahibaug, Ahmedabad. ..Applicant/ ·
(Original Accused No.37)
V/s.

CBI., S.C.B. Mumbai. ..Respondent.

Adv. Mr. V. D. Gajjar for Accused No.37.

Mr. B.P Raju, Spl.P.P. for the CBI.
CORAM: The Special Judge
M.B. GOSAVI.
DATE : 31st March, 2015.

Order below Ex.525

1. Accused No.37 Om Prakash Mathur, then working as Addl.
Director General of Police, Gujarat, (for short ADGP) filed this application
for discharge under sec.227 of the Code of Criminal Procedure, 1973 from
the offences under sec.201, 218, 167, so6 r/w 120-B of I.P.C. He also
requested for dropping of the proceedings against him for want of
sanction under sec.197, Cr. P.C. He pointed out that he had already filed
 2 7/fl- h-
application under sec.197, Cr. P.C. (Ex.14) while the case was pending in
the court of Ld. Magistrate at Ahmedabad. However, the case was
transferred to this court by the order of the Hon'ble Supreme Court and,
hence, Ld. Magistrate could not dispose of the application.

2. The allegations against this accused are found in para 6.71 to

6.76 in the third supplementary charge-sheet filed by CBI bearing S.C.
No.312j2014.' They are as follows·:-

3· Initially, Mr. G.C. Raiger was ADGP (Horneguard) holding

additional charge of DGP (Crime). He did not obey the instructions given
by the Minister of State (Home) while he was supervising investigation of
Sohrabuddin encounter case being carried by the CID, Crime, Gujarat.
Hence, l\.1r. G.C. Raiger was removed from the post of ADGP and the
accused was· directed to take charge of the said post. Mr. ,G.C. Ra.iger
alleged that he was shunted from the said post unceremoniously when he
was taking part in the "Karmayogi Shibir" for IPS Officers at Ahmadabad.
He was not allowed to take his personal papers lying in the official
chamber. The prosecution alleged that after assuming charge of the post
of ADGP, CID (Crime), the accused started cre~ting certain hurdles in the
investigation of Sohrabuddin encounter case at the instance of Minister of
State (Home). He directed .Mr. Rajnish Rai, ADIG, the supervising officer
of that case, to go slow with the investigation. He directed M_r. Rai not to
make note in case diary that the Investigating Officer Mr. V.L. Solanki
had asked for permission to go to Udaipur to record the statement of
Tulsiram Prajapati. However, no permission was granted. Meantime,
Tulsiram Prajapati was killed in fake encounter. Tulsiram Prajapati was
killed in encounter because he was an eye-witness of abduction of
Sohrabuddin and his wife Kausarbi by the Gujarat and Rajasthan police
while they were travelling in luxury bus from Hyderabad to Sangli. It is
"·
 3 7/»f 3
alleged that the accused acted as one of the conspirators to cause
disappearance of material evidence against other police officers. He did
not discharge his duties as public servant.

4· It is also alleged against the accused that he directed

Mr. Rajnish Rai not to make note in the case diary that the other accused
Rajkumar Pandian was trying to influence the members of Apte family
who were passengers travelling in the same luxury bus in which
Sohrabuddin and his wife Kausarbi were travelling. The members of Apte
family could have identified that third person abducted from the bus was
Tulsiram Prajapati and none else. It is alleged that the accused instructed
Mr. Rai not to make note in the case diary because he wanted to save
senior police officers. It is seen that the above allegations are reproduced
in all other paragraphs in the charge-sheet. Lastly, CBI alleged that as a j

token of reward, the accused was appointed as Director General of Raksha

Shakti University after his retirement. On the basis of the above facts, the
prosecution contended that an inference that the accused being one of the
conspirators in fake encounter ofTulsiram Prajapati, can safely be drawn.

s. The accused filed application under sec.227, Cr. P.C. for

discharge contending that the evidence relied on by the prosecution
against him is not sufficient to frame charge against him. There are no
allegations that he took part in the abduction and killing of Sohrabuddin,
Kausarbi or Tulsiram Prajapati. There a,re no allegations that at his
instruction and instigation the other accused abducted and killed above
three persons. The prosecution wanted to rest its case only on the
statement of Mr. Rajnish Rai, the officer against whom adverse r~marks

were made in his ACR by DIG, Gujarat. Moreover, whatever instructions

he gave during investigation were given as part of his official duty. Hence,
no cognizance of the offence can be taken against him save and except by
 . ,\
.~--

4 7 ja::-/4
permission of the State Government. Hence, he may be discharged from
the case.

6. The application is resisted by the prosecution vide its say

I
Ex.525-A. It is contended that on 03-03-2007 G.C. Raiger, the then
ADGP, CID (Crime), Gujarat, refused to become party to the criminal
conspiracy. He was suddenly removed from the post of ADGJ> and was
forced to hand over charge of that post to the accused. Thereafter, the
accused started to stifle in the investigation of Sohrabuddin and Tulsiram
Prajapati encounter case. The accused started giving instn1ctions to
Mr. Rajnish Rai about noting the progress of the investigation in a
particular manner with a view to see that true facts and involvement of top
police officers and politicians should not come on record. The accused
thereby com.mitted offence punishable under sec.120-B r/w 201, 218, 167
and 506 of the IPC. There is evidence on record to show his i11volvement
in the crime. Hence, his application for discharge may be rejected~ It is
further contended that whether sanction to prosecute under sec.197, Cr.
P.C. and also under sec.161 of Bombay Police Act is required or not, is
altogether a different issue and the same requires independent enquiry.

7· To substantiate its allegations and to prove the above facts,

prosecution relied on statements of witnesses PW-216- G.C. Raiger, 217-
V.L. Solanki, and PW-225- Rajnish Rai.

8. I heard arguments of Ld. Advocate Mr. G:ajjar for the accused

and Ld. Sr. Prosecutor Mr. B.P. Raju at length. I have gone through the
record and proceedings of this case.

9· Ld. Advocate for the accused submitted that it is not in

dispute that this accused was cited as a witness of the prosecution in the
,_
i~'

5 7/JI Is
first charge-sheet filed by the CBI bearing S.C. No.177-2013. Thereafter,
CBI recorded statement of G.C. Raiger and prosecuted this accused as one
of the conspirators. He submitted that witness G.C. Raiger did not make
any allegation against this accused. He only stated that all· of a sudden he
I

was removed from the post of ADGP, CID (Crime), asking him to
. handover charge of the post to the accused during evening while he was
attending "Karmayogi Shibir" for IPS Officers at Ahmadabad. He was not
allowed to take his personal papers from the cabin. According to Ld.
Advocate Mr. Gajjar, the above contention is fach1ally incorrect because
there are documents on record to show that in fact Mr. Raiger officially
handed over the charge to this accused on 03-03-2007. Moreover, the
State Government directed him to take charge of the said post relieving
Mr. Raiger. The accused had no choice but to take charge of the said post.
How such act would amount to criminal conspiracy and causing
disappearance of material evidence? He further submitted that this court
while allowing the discharge application of Mr. Amit Shah had observed
that statement of Mr. G.C. Raiger could not be relied upon. Hence, the
same cannot be relied on to consider the case against this accused also.

10. Ld. Advocate Mr. Gajjar ·thereafter took me through the

statement of Rajnjsh Rai. He submitted that Mr.Rai had noted in his
representation made to the State Government for expunging some adverse
remarks in his Annual Confidential Reports, that he carried the
'
investigation of Sohrabuddin case under able guidance of this accused.
Same Mr.Raiger after a period of three years made some allegations
against this accused in his rejoinder filed before the Central
Administrative Tribunal, Ahmedabad Bench, when he could not get the
adverse remarks expunged. Such statement may not be relied on and, if
at all it is relied, still it is not sufficient to frame charge of criminal
conspiracy against this accused. Mr. Rajnish Rai only stated that the
/~
' I

6
7/Jx-/t
accused gave instructions about the noting to be made in respect of the
progress of the investigation. Such allegations are not at all enough to
hold that prima facie case is made out against the accused.

I
11. Ld. Advocate further submitted that if at all it is held that the
accused gave some instructions to Mr. Rajnish :Rai which he ought not to
have given, still those instructions were given during discharge of his
official duty. Hence, on the basis of the alleged instructions, no
cognizance of criminal offence can be taken for want of sanction from the
State Government to prosecute him.

12. The accused filed on record some documents to substantiate

his contention for discharge. Ld. Advocate Mr. Gajjar submitted that
this court can look into those documents filed by the accused. He relied
on the ru}irig reported in ALL MR (Cri.) 2009-0-3256 (No~r Ahmed
vs. State of Maharashtra) and unreported judgment of Hon 'ble
Gujarat High Court in' Cri. Miscellaneous Application No.2081 of 2008 in
the case of "Vallabhbhai Patel vfs Anil Amarsingh".

13. Ld. Sr. Prosecutor Mr. B.P. Raju submitted that witness.
Rajnish Rai stated in his statement in detail as to how this accused created
obstruction in the investigation. There is evidence to show that this
accused was brought in place of G.C. Raiger on the post of ADG;P (Crime).
Upon taking charge of that post, accused started giving instructions to
Mr. Rajnish Rai. Those instructions were creating hurdle in the smooth
investigation. That act of the accused shows his involvement as
conspirator. Hence, hi~ application may be rejected.

14. As far as the application under sec.197, Cr. P.C. filed by the
accused is concerned, Ld. Prosecutor submitted that quality of the act or
:;,
~-,

( 'h

7 7/:m::/7
omtsswns alleged against the public servant is very important aspect
required to be considered by the court in order to hold whether the public
servant is entitled to seek protection under sec.197, Cr. P.C. In this case,
thjs accused cannot claim that protection. Ld. Prosecutor also relied on
I

number of rulings on the point of discharge. They are:

1) State of Bihar v /s Ramesh Singh (1977 Cri. L.J i6o6
(SC)),
2) State ofKarnataka v/s Munni Swami (1977 Cri. L.J.
1125 (SC)),

3) Union of India vjs Praful Kumar Samal (1979 Cri.

L.J. 154 (SC)),
4) State ofMaharashtra vfs Somnath Thapa (1996 Cri.
L.J. 2448 (SC)),
5) State of Orissa vfs Devendranath Padhi (AIR 2005 SC
359)
6) Vijayan vjs State ofKerala (2010 Cri. L.J. 1427 (SC)).
7) 2013 Cri. L.J. 331 (Shoraj Singh Ahlawat & Ors. vs.
State ofU.P. &Anr.) and
8) AIR 2009 SC 1013 (Rukmini Narvekar vs. Vijaya
Satardekar & Ors.)

15. I have gone through the entire evidence and material on

which prosecution relied against the accused. I have considered the
submissions made at the bar and the rulings relied on by both Ld.
Counsel.

16. I propose to take note of the rulings relied by the Ld. Counsels
explaining the scope of enquiry to be undertaken by the court while
considering the application for discharge under sec.227 of Cr. P.C. filed by
the accused. It is not necessary to take note of each and every ruling
 8 7/-IF:(g-
relied. In the latest n11ing in the case of Shoraj Singh Ahlawat & Ors.
vs. State of U.P. & Anr. ( 2013 Cri. L.J. 331) (supra) after taking
note of all its earlier rulings on the point, Hon'ble Supreme Court was
pleased to hold in para 16 that :

"(1) That the Judge while considering the question offraming the
charges under sec.227 of the Code has the undoubted power
to sift and weigh the evidence for the limited purpose of
finding out whether or not a prima facie case against the
accused has been made out:

(2) Where the materials placed before the Court disclose grave.
suspicion against the accused which has not been properly
explained the Court will be .fully justified in framing a charge
and proceeding with the trial. .
(3) The test to determine a prima facie case would naturally
depend upon the facts of each case and it is difficult to lay
down a,fule of universal application. By a'nd large,
however, if two views are equally possible and the Judge is
satisfied that the evidence produced before him while giving
rise to some suspicion but not grave suspicion against the
accused, he will be fully within his right to discharge the
accused.
(4) That in exercising his jurisdiction under sec.227 of the Code,
the Judge which under the present Code is a senior and
experienced Judge cannot act merely as a Post Office or a
mouth-piece of the prosecution, but has to consider the
broad probabilities of the case, the total effect of the
evidence and the documents produced before the Court, any
basic infirmities appearing in the case and so on. This
however does not mean that the Judge should make a roving
enquiry into the pros and cons of the matter and weigh the
evidence as if he was conducting a trial"

17. In the light of the above pronouncement of the law by the

Hon'ble Apex Court, the evidence on record is required to be seen.

18. The accused filed on record some documents in his defence.

Ld. Advocate Mr. Gajjar submitted that this court can look into those
documents. He relied on the ruling in the case~ of Rukmini Narbekar vs.
 9 7 jJK/?
Vijaya Satardekar & Ors. (supra). It has been held by the Honwble Apex
Court that:
"In our opinion, therefore, it cannot be said as an absolute
proposition that under no circumstances can the court look
into the material produced by the defence at the time of
framing of the charges, though this should be done in very
rare cases, i.e. where the defence produces some material
which convincingly demonstrates that the whole prosecution
case is totally absurd or totally concocted. We agree with
Shri Lalit that in some verf rare cases the Court is justified
in looking into the material produced by the defence at the
time of framing of the charges, if such material convincingly
establishes that the whole prosecution version is totally
absurd, preposterous or concocted."

19. To show the complicity of the accused as one of the

conspirators of the offence, the prosecution mainly relied on the follmving
facts:-
1) that accused took charge of the post of ADGP from G.C.
Raiger, the officer who refused to obey the illegal instructions
of the then Minister of State (Home) about the on-going
investigation of Sohrabuddin encounter case and, after taking
charge, the accused started creating hurdles in the smooth
investigation.
2) He told Mr. Rajnish Rai, the supervising officer of the said
investigation to go slow and gave instructions about noting of
progress of investigation in the case diary in a particular
manner.

'
20. To establish existence of the above facts, prosecution relied
on the statements of three witnesses viz. PW-216, G.C. Raiger, 217, V.L.
Solanki, and PW-225 Rajnish Rai. Out of them, PW-216 G.C. Raiger
stated that on 3-2-20.07 he was relieved from the charge of ADGP, CID
(Crime). He gave charge of his post to th~ accused. According to him, he
 JO 7 /j_x_ }t 0

was shunted out because he refused to follow illegal instructions given by

the Minister of State (Home) about the on-going investigation. He
further stated that he himself requested the State Government to relieve
him from the said post. Accordingly, he was relieved. He alleged that he
I
was relieved from the said post unceremoniously and he was not even
allowed to take his personal papers from the cabin.

21. If Mr. G.C. Raiger's statement is accepted uncontroverted, it

only shows that he had requested the State Government to relieve him
from the post of ADGP, CID (Crime), because it was inconvenient for him
to work with the Minister of State (Home). The Government relieved him
and the accused was brought in his place. I do not find any criminality on
the part of the accused. If the State Government directed this accused to
take charge of the said post from Mr. G. C. Raiger, how the accused can be
held responsible for such situation? How an inference that acc:used is
part of criminal conspiracy to cause disappearance of material evidence
can be drawn thereby? In ·short, statement of Mr. G.C. Raiger is not
useful for the prosecution to implicate the accused in this case.

22. The prosecution relied on the statement of PW-217 V.L.

Solanki. There are five statements recorded by the CBI on record. I have
gone through all his statements. He did not utter a single word against
the accused. He did not state that the accused created any obstruction in
the investigation of Sohrabuddin encounter case.

23. The prosecution mainly relied op the statement of .PW-225

\
Rajnish Rai. Mr. Rajnish Rai did not state anything against the accused
in his one page statement dated 09-10-2011. However, alongwith his
statement, he provided to the IO copy of the rejoinder filed by him in his
application No.120-2011 pending before the CAT, Ahmedab~d Bench.
- '
t--"'

11 7/IK:/tl
Question is whether this rejoinder can be treated as statement under
sec.161 of Cr. P.C. because it was not recorded by the IO personally. It is
a written say of the witness filed in a quasi-judicial proceeding. It is not
in disnute that said oroceeding was filed bv Mr .Rai himself for deletion of
.L ... ....... - '

certain adverse remarks in the ACR. The rejoinder was filed after the
DGP, Gujarat, filed say in the said proceeding. Mr. Rai made certain
allegations against the accused. Sum and substance of the his allegations
is that on 12-04-2007 the accused wrote following instructions on the file
of Sohrabuddin encounter case that:
"The note-sheet should not contain work done in respect of
investigation of the case as the same is required to be
reflected in the investiaation vavers. The notinq side should
c;ntain administrativ~ matte-rs -or regarding reports and
matters concerning writ petition in the Supreme Court.

The personal one to one meeting should also not be reflected

in noting side. It is advisable that those who are subjeCt of
the enquiry or investigation are not given audience when not
called for."

24. If at all it is accepted that the accused gave the above

instructions to Mr.Rajnish Rai, I fail to understand how such evidence
would help the prosecution to sustain its case against the accused that he
created hurdles in the investigation and, moreover, because he was part of
the criminal conspiracy to cause disappearance of material evidence?

25. Mr. Rajnish Rai's noting was about recording statement of

Apte family members · who were co-passengers in the luxury bus
wherefrom Sohrabuddin, Kauserbi and third person were abducted. The
statements of Apte family members were relevant to establish the fact that
the third person was Tulsiram Prajapati. The prosecution produced on
record copy of the diary containing note of Mr. Rajnish Rai. Perusal of
the same does not show even remotely that there was some inconvenient
facts about the on-going investigation /
which this accused asked
 ]2 7 Iff-Ill-
Mr. Rajnish Rai to delete, in order to save other accused or to cause
disappearance of evidence. Hence, even if the allegations of Mr. Rai made
against the accused in his rejoinder before the CAT are accepted as it is,
still I hold that no sufficient grounds are made out to proceed against the
accused by drawing an inference that the accused created obstruction in
the on-going investigation with a view to shield senior police officers and
Minister of State (Home) or to cause disappearance of any evidence.

26. The accused filed on record number of documents in his

defence. Except the document of taking over charge of the post of ADGP
from Mr. Raiger, other documents are not relevant for consideration.

27. Be that as it may, in view of the evidence on record, I have

come to the conclrrsion that the prosecution could not make out prima
facie case for framing charge against the accused. Hence, I proceed to
pass the following order :-

ORDER
Application is allowed.
Accused No.37 Om Prakash Mathur stands discharged from
the offences punishable under sections 201, 218, 167,506 r/w
120-B of IPC.
He is directed to execute fresh P.R. Bond in the sum of
Rs.1s,oooj- as per section437-Aof Cr. P.C.
In view of the above order, his application under sec.197,
Cr. P. C. for dropping of the proceeding stands disposed of.

(M.B. GOSAVI)
Special Judge for CBI,
Date:- : 31-03-2015 Gr. Mumbai.
--..
 00
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 .., /x-lt
: 1 oS-04-2015

IN THE COURT OF SPECIAL JUDGE FOR CBI AT

GREATER BOMBAY

APPLICATION CEXHIBIT-558)
IN
SESSION CASE NOS.177/2013@ 178/2013
@ 577/2013 and@ 312j2014

Mr. Gulabchand Hukhumchand Katariya, ]

Aged 69 years, Adult of Rajasthan, Indian ]
Inhabitant, residing at 101/1, Patel Marg, ]
Mansarovar, Jaipur, Rajasthan. ] .... .Applicant/
(Original Accused No.21)
Vjs.
CBI., S.C.B. Mumbai. ] ..... Respondent.
/

Adv. Mr. Darshan Juikar, i/by Mr. Girish Kulkarni, for Accused No.21.
Mr. B.P Raju, Spl.P.P. for the CBI.
CORAM: The Special Judge
M.B. GOSAVI
DATE : o8th April, 2015.
Order below Ex.ss8

1. This is an application under sec.362 of the Code of Criminal

Procedure, filed bY, Applicant Gulabchand H. Katariya, who was Accused
No.21 in S.C. No.177-2013 (alongwith supplementary charge-sheet) as one
of the conspirators of the crime. This court: by order dated 26-02-2015
discharged him on merit by passing order under sec.227, Cr. P.C. The
Applicant received certified copy of the order. He pointed out that some
material dates are wrongly mentioned in the order. They are to be
corrected.
 7/X/L
: 2 : 08-04-2015

2. I have called say from the CBI. Accordingly, Ld. Sr.

Prosecutor gave his 'no objection' submitting that corrections in the dates
are required to be carried.

3. I have· again gone through the charge-sheet artd the

allegations against the accused. I have gone through the original order
passed by this court, dated 26-02-2015. I noticed that the prosecution
alleged that there was meeting in between Accused No.1 D.G. Vanzara, one
Mr.Oin Mathur and the Applicant at Udaipur that had taken place in
between 27-12-2005 and 30-12-2005. However, atvarious places in the
order, the dates are wrongly mentioned that the meeting was held on
28-12-2006, instead of between 27-12-2005 and 30-12-2005.

4· Sec.362. of the Code of Criminal Procedt1re empowers the

court to carry corrections about clerical and arithmetic errors. In this
case, a mistake about the dates had been cropped up inadvertently. Hence,
they are required to be corrected: Accordingly, I allo~ the application and
pass the following order:-
ORDER
By virtue of this order, the dates mentioned in paragraph
Nos-4, 21, 22, 23, 24 and 25 to stand corrected as suggested
by the Applicant·and, consequently, construction of some
sentences are corrected in the certified copy of the order
annexed to the application. Original order be corrected
accordingly.
Ex.558 stands disposed of accordingly.

(M.B. GOSAVI)
Special Judge for CBI,
Date:- 08-04-2015 Gr. Mumbai.

"
 7/X/3
3 08-04-2015

Dictated on 08-04-2015
Transcription
completed on 09-04-2015
Signed on 09-04-2015
 7/Yr/J
IN THE COURT OF SPECIAL JUDGE FOR CBI AT
GREATER BOMBAY

APPLICATION (Exhibit No.528)

m
SESSION CASE NOS.177j2013@ 178j2013
@ 577/2013 and@ 312j2014

Yashpalsinh J. Chudasama,
residing at Ashwameth-5,
Bungalow No.10, Near A-1 School,
Satellite, Ahmedabad. ..Applicant/
(Original Accused No.18)
V/s.

CBI., S.C.B. Mumbai. ..Respondent.

Sr. Adv. Mr. S.V. Raju (with Mr. A.K. Jadeja, and Ms. Supriya Kak,
Advocates) for Accused No.18.
Mr. B.P Raju, Spl.P.P. for the CBI.
CORAM: The Special Judge
M.B. GOSAVI.
DATE : 27th April, 2015.

Order below Ex.528

1. This application under sec.227 of the Code of Criminal
Procedure, 1973 filed by Accused No.18 Yashpalsinh J. Chudasama for
discharge from the case.

2. The allegations in short against him are as follows:-

1
 2
71JI
1
I 2-
i) After encounter of Sohrabuddin on 25-11-2005 and
disappearance of his \vife Kausarbi, CID (Crime), Gujarat, investigated
the matter. Charge-sheet against 13 Sr. Police Officers and policemen
came to be filed. However, Mr. Rubabuddin Sheikh, brother of
I '

Sohrabuddin, raised suspicion about the on-going investigation by CID

(Crime). He filed writ petition in the Hon'ble Supreme Court. In the
meantime, eye-witness of Sohrabuddin abduction, by name Tulsiram
Prajapati was also killed in another encounter. Hon'ble Supreme Court
directed the CBI to carry further investigation taking into consideration
the angle oflarger conspiracy in respect of the above incidents.
ii) The CBI took up further investigation. They filed three more
supplementary charge-sheets. During their further investigation, they
found involvement of 15 more persons in the conspiracy of abduction and
killing. Those persons included some Police Officials and some private
persons. This accused is one amongst them.

3· It is alleged that when the matter was under investigation of

CBI, this accused brought pressure on witnesses by name Dasharathbhai
Patel and Ramanbhai Patel for not disclosing .true and correct facts to the
Investigating Officer. Patel brothers recorded their conversation audio-
visually. On the basis of that evidence, the accused is prosecuted under
sec.201 r/w 120-B ofi.P.C.

4. The accused claimed discharge on the following grounds:-

1. He has been falsely implicated in this case only to build the
case against Mr. Amit Shah, then Minister of State (Home).
2. He never brought pressure on any witness as alleged.
3. The evidence on which prosecution relies against him is not
admissible.

:;,
/

3 7 /xr:ls
4· If transcript of his alleged conversation with Patel brothers
is perused, it would reveal that he did not give any threats or
try to influence any witness in any manner.
s. There is no evidence worth to frame charge against him.
I
Hence he may be discharged.

s. This application is resisted by the prosecution vide its say at

Ex.528-A. It is stated that from perusal of the statements of Patel
brothers, .it is clear that the accused was part of larger conspiracy. The
audio-visual recording of the meeting held in betvveen this accused, other
accused by name Ajay Patel and Patel brothers would reveal that the
accused was actively involved in committing the crime. At this stage,
admissibility of the evidence cannot be considered. Only because
Accused No.16 Amit Shah is discharged, that is no reason to discharge
this accused on the ground of parity. The application may be rejected.

6. I have gone through the evidence on record. I heard

arguments of Ld. Sr. Counsel Mr. S.V. Raju and Ld. Sr. Prosecutor Mr.
B.P. Raju at length.

7· Ld. Sr. Counsel Mr. S.V. Raju submitted that there is no

evidence on record to show that this accused played any role in actual
abduction and killing of Sohrabuddin. He did not play any role in
confinement of Sohrabuddin in Disha Farm House. Only allegation that
appears against him is that he tried to tamper the evidence. It is alleged
that the accused was close confident of Mr. Amit Shah, but there is no
evidence to indicate this fact. The prosecution did not specify as to which
witness was tampered by the accused. Patel brothers are not witnesses of
abduction and killing of Sohrabuddin. They did not name this accused
during their earlier two statements. In their third statement dated

-·~· • ·-•- -- -•- ··~~-- ,_..•. r.~•-- ·--<"

 4 7/xc/'1
16-04-2010, they referred to the name of this accused. It is alleged that
the accused was trying to influence said witnesses to conceal the truth but
what was that tn1th is not made clear. No voice sample of the accused was
taken. Spectrograph test is not carried. There is no evidence on record
I

to frame charge against this accused.

8. Ld. Sr. Counsel Mr. Raju further submitted that the law
relating to the scope of enquiry of application under sec.227 of Cr. P.C. is
now well settled by Hon'ble Supreme Court by its various rulings. Latest
one amongst them is the case of "L. Krishna Reddy vs. State by
Station House Officer & Ors." ((2014) 14 SCC 401) in which it is
held that "it is bounden duty of the Court to weigh and sift the evidence on
record to see whether prima facie case is made out against the accused.
No charge can be 'framed on vague and vindictive allegations. The
person/accused .should ·not be com:pelled to tmdergo the ordeal of a_ trial."
Ld. Sr. Counsel also relied on number of other rulings. They are:
1. Century Spinning and Manufacturing Company v f s
State ofMaharashtra ((1972) 3 SCC 282)
2. State ofKarnataka vjs L~ Muniswami ((1977) 2 SCC
699)
3- Union of India vjs Prafulla Kumar Samal ((1979) 3
SCC4)
4· Dilawar Babu Kurne vjs State ofMaharashtra ,
((2oo2) 2 sec 135)
s~ Yogesh@ Sachin Jagdish Joshi vfs State of
Maharashtra ( (2008) 10 SCC 394)
6. Bhagwan Swamp Lal Bishan Lal & Ors. vs. State of
Maharashtra (AIR 1965 SC 682)
7· State of Gujarat vs. Mohammed Atik & Ors. ((1998) 4
sec 351) :;,
 5 1/XJ j s

9. As against this, Ld. Prosecutor Mr. B.P. Raju submitted that

the accused is a private person who tried to pressurize the material
v..ritnesses. What was his interest in on-going investigation by CB I? There
I

is evidence on record to show his involvement in the crime. His

application may be rejected.

10. I have considered the evidence on record in the light of

submissions made at the bar and the law relating to consider discharge
application. It is not alleged against the accused that he had taken part in
actual abduction, confinement and killing of Sohrabuddin and his vvife
Kausarbi. The prosecution implicated this accused mainly on th.e ground
that he was close aide of Mr. Amit Shah. The allegations against Mr. Amit
Shah were that he instructed senior polireufficers in the State of Gujarat
to abduct and kill Sohrabuddin. The accused being trusted aide, later on
helped Mr. Amit Shah to go scot-free and for that reason tried to
influence Patel brothers. This court had already discharged Mr. Amit
Shah from this case on 30-12-2014 vide order below Ex.232 finding no
link of Mr. Amit Shah with the alleged crime. Obviously, this accused who
allegedly acted at the instance of Mr. Amit Shah cannot be prosecuted.

11. Apart from the above technicalities, it is required to see

whether there is evidence on record to sustain the allegations against this
accused independently.

12. Main allegation against the accused is that he tried to bring

pressure on witnesses by name Ramanbhai Patel and Dashrathbhai Patel.
To substantiate their allegation, prosecution relied on the statements of
said two witnesses and transcription of audio-visual recorded
conversation in between them. There are three statements of Patel
 6 7/:tr/6
brothers recorded by the CBI. They are dated 16-03-2010, 27-03-2010,
and 06-04-2010 .. Later on, their fourth statement was recorded by Ld.
Magistrate, l\1umbai, under sec.164(5), Cr. P.C. on 12-04-2010. It is seen
from their earlier statements and statement recorded under sec.164(5) Cr.
P.C. that the statement recorded by the Ld. Magistrate is v1rtually in
verbatim with the earlier statements recorded byCBI a month ago.

13. In their earlier two statements dated 16-03-2010 and 27-03-

2010, Patel brothers did not refer name of this witness anywhere
ascribing any role to him. In their statement dated 06-04-2010, they for
the first time stated that on 29-03-2010 they had a meeting with this
accused and other accused Mr. Ajay Patel. They secretly recorded this
meeting by audio-visual device. They handed over that pen-drive to CBI.
This itself shows that prior to 29-03-2010 this accused had not
approached Patel brothers. He had not met them. Hence, there was no
question of this accused bringing pressure on them when their statements
dated 16-03-2010 and .27-03-2010 were recorded by CBI. In short, when
their earlier two statements were recorded by CBI, Patel brothers have
disclosed true and correct facts to the I.O. Same statement they
reproduced before the Ld. Magistrate. In such situation, the prosecution
clajm that this accused tried to pressurize the witnesses to desist from
disclosing true facts of the q1se to CBI becomes vague and baseless.

14. I now consider the contents of the dialogue that allegedly

took place between the accused and Patel brothers. The di~logues are in
Gujarati. They are translated in English by Official Translator. I have
minutely gone through the transcription of talks in between Patel
brothers and the accused. The talks appear to be friendly talks without
there being any word of threat or promise. In fact, the accused appeared
to be explaining to the witnesses about the on-going investigation by the
...
 7
7/&(7
CBI and how CBI was akin to involve Mr. Amit Shah. He never told Patel
brothers not to give such statement which may amount to land Mr . .fu-nit
Shah in trouble.

I
15. It is not in dispute that after the above sting operation, Patel
brothers statements were recorded by the Ld. Magistrate on 12-04-2010.

They could have stated in their statements that the accused had brought
pressure on them and, hence they could not disclose some important facts
relating to the crime. They could have stated those facts before Ld.
Magistrate but they did not do anything of that sort. In short, it appears
from the evidence on record which prosecution intends to rely against the
accused that the allegations against this accused are vague and cryptic.

16. Ld. Sr. Cousel Mr. Raju brought to my notice a latest ruling of
the Hon'ble Apex court in the case of "L. Krishna Reddy vs. State by
Station House Officer & Ors." ((2014) 14 SCC 401) (supra) in
which it has been held in para 7 that :-
"In fact, section 227 itself contains enough guidelines
as to the scope of enquiry for the purpose of discharging
an-accused. It provides that the Judge shall discharge
when he considers that there is no sufficient ground
for proceeding against the accused. The 'ground' in
the context is not a ground for conviction, but a ground
for putting the accused on trial. It is in the trial, the
guilt or the innocence of the accused will be determined
and not at the time of framing of charge. The court,
therefore, need not undertake an elaborate enquiry in
sifting and weighing the material. All that the court
has to consider is whether the evidentiary material
on record if generally accepted, would reasonably
connect the accused with the crime. No more need
be enquired into.

The Court is neither a substitute nor an adjunct of the

prosecution. On the contrary, once a case is presented
to it by the prosecution, its bounden duty is to sift
through the material to ascertain whether a prima facie
\
,----~,,

I
8
7(-ZC/ ~
case has been established which would justify and merit
the prosecution of a person. The interest of a person
arraigned as an accused must also be kept in perspective
lest, on the basis of flippant or vague or vindictive accusations
bereft of probative evidence, the ordeals of a trial have to
be needlessly suffered and endured. We hasteti to alarif-y
that we think the statements of the complainant are those
of an anguished father who has lost his daughter due to
the greed and cruelty ofhis son-in-law. As we have
already noted, the husband has taken his own life possibly
in remorse and repentance. The death of a child even to
avaricious parents is the worst conceivable punishment."

17. In view of the above ruling and considering the evidence on

record, I hold that there is no I11:aterial to proceed against the accused to
frame charge against him for the offences for which he is prosecuted.
Resultantly, I proceed to pass the following order :-
ORDER
Application Ex.528 is allowed.
Accused No.18 YashpalSinh Chudasama is discharged
under sec.227, Cr. P.C. of the offences punishable under
sections 201 r/w 120-B, I.P.C. However, he is directed
to execute fre.sh PR Bond in the sum of Rs.1s,oooj-
under sec.437-A, Cr. P.C.

(M.B. GOSAVI)
Special Judge for CBI,
Date:- : 27-04-2015 Gr.Mumbai.

Dictated on : 27-04-2015
Transcription
completed on : 28-04-2015
Signed on : 28-04-2015

.;.,
 1/ffL/t
IN THE COURT OF SPECIAL JUDGE FOR CBI AT
GREATER BOMBAY

APPLICATION (Exhibit No.527)

m
SESSION CASE NOS.177/2013@ 178/2013
@ 577/2013 and@ 312/2014

Ajay Haribhai Patel,

residing at 45, Sardar Patel Nagar Society,
Opp. Classic Gold Hotel, C.G. Road,
Navrangpura, Ahmedabad. ..Applicant/
(Original Accused No .17)
Vjs.

CBI., S.C.B. Mumbai. ..Respondent.

Sr. Adv. Mr. Shirish Gupte (with Mr. A.K. Jadeja, Advocate) for
Accused No.17.
Mr. B.P Raju, Spl.P.P. for the CBI.
CORAM: The Special Judge
M.B. GOSAVI.
DATE : 28th April, 2015.

Order below Ex.527

1. Accused No.17·Ajay Haribhai Patel has filed this application
under sec.227 of the Code of Criminal Procedure, 1973 for discharge from
the case in which he is prosecuted for the offences punishable under
sections 120-B rfw 364, 365,368,341,342,302, and 201, IPC.
 2 7/Xfl/ 1-

2. The prosecution case in general against the accused is as

follows:-
i) On 26-11-2005 one Sohrabuddin Sheikh, a dreaded criminal,
was killed in fake encounter carried by ATS, Gujarat and RSTF, Rajastan.
I
His wife Kausarbi was made to disappear. Initially, this matter was
investigated by Mr. M.L. Parmar, Dy. S.P. of ATS, Gujarat. He found that
encounter was genuine and was carried by the police with a view to nab
Sohrabuddin. As Sohrabuddin fired at the police party, in self-defence
the police fired at him, in which he died. Mr. Parmar filed abate summary
report in the Court of Ld. Magistrate, which was accepted.
ii) In the meantime·, Mr. Rubabuddin Sheikh, brother of
Sohrabuddin, sent a letter to Hon'ble Chief Justice of Supreme Court
raising suspicion about death of his brother and disappearance of his
sister-in-law. The Supreme Court forwarded that letter to the D~rector

General of Police, Gujarat, directing him to hold enquiry in the ,mater.

Accordingly, enquiry was held by CID (Crime), Gujarat. On the basis of
Enquiry Report, crime was registered. Total 13 police officers and
policemen were arrested on the allegation of fake encounter and they
were charge-sheeted.
iii) Mr. Rubabuddin Sheikh was not satisfied with the above
action of the State Government. He filed a writ petition in the Supreme
Court praying therein to transfer the investigation to CBI. His writ
petition was allowed. By that time, one Tulsiram Prajapati, eye-yvitness
of abduction of Sohrabuddin and Kausarbi by ATS, Gujarat, and RSTF,
Rajastan, was also killed in another fake encounter. The Hon'ble Apex
court directed the CBI to carry further investigation taking into account a
larger conspiracy in both the incidents. CBI carried further investigation
and filed four supplementary charge-sheets. This accused is arranged as
Accused No.17 in the second supplementary charge-sheet filed by CBI.

.;;.
 3
7(Yff'/3
3· Allegations, in particular against this accused are as follows:-
i) When CBI was carrying further investigation of fake
encounter of Sohrabuddin, this accused tried to bring pressure on material
vvitnesses by name Ramanbhai Patel and Dashrathbhai Patel for not
I

disclosing true and correct facts about criminal conspiracy in abducting

and killing Sohrabuddin. It is alleged that accused tried to tamper with
the witnesses only with a view to save Mr. Amit Shah, then Minister of
State (Home) at whose instance encounter was allegedly ca:J;ried.
ii) It is alleged that the accused gave threats to Patel brothers
and extracted a sum of Rs. 70 lac from them, at the instance of Mr. Am it
Shah for not considering the proposal of their detention under Prevention
of Anti-social Activities Act.
4. The accused claimed discharge from the case on following
grounds:-
L He has been falsely implicated in this case because he refused
to give statement to CBI implicating Mr. Amit Shah in this
case.
2. The evidence on record which prosecution proposes to rely, is
not admissible and relevant.
3. Patel brothers, who were involved in so many criminal cases,
have falsely implicated him for some ulterior motive.
4. He is no way concerned with the abduction and killing of
Sohrabuddin and his wife Kausarbi by ATS, Gujarat, and
RSTF, Rajastan;
s. He did not bring pressure on any witness at the instance of
Mr. Amit Shah.
6. Hon 'ble Gujarat High Court granted him anticipatory bail on
29-09-2010 on going through the charge-sheet and
allegations against him and'noted that no prima facie case
existed against him.
(~'-

4 7f&rh
7. As he has been falsely implicated in this case, he may be
discharged.
s. The prosecution filed their say at Ex.527-A to resist the
application. It is stated that the statements of Ramanbhai I Patel and
Dashrathbhai Patel show that the accused was part of criminal
conspiracy. After encounter of Sohrabuddin, Mr. Vanzara (Accused No.1)
had arrested Patel brothers falsely. He extorted from them a sum of
Rs. 70 lac . When investigation was transferred to CBI, the accused made
efforts to sabotage the investigation and tried to bring pressure on Patel
brothers asking them to give statement to CBI as per \VTitten statement
prepared by Accused No.15 Abhay Chudasama. This meeting was audio-
visually recorded by electronic means by Patel brothers. There is
evidence on record to show complicity of this accused in the crime.
Hence, his application may be rejected. ·
6. I have gone through the evidence on record proposed to be
relied against the accused. I have heard Ld. Counsel Mr. Shirish Gupte
for the accused and Ld. Sr. Prosecutor Mr. B.P. Raju.
7· Ld. Counsel Mr. Shirish Gupte submitted that there is no
evidence to show that the accused played any role in the abduction and
killing of Sohrabuddin and his wife Kausarbi. . He is not at all involved in
Tulsiram Prajapati encounter case. The allegations against him are very
limited that he met Patel brothe~s at the instance of Mr. Amit Shah asking
them to give statement to· CBI in a particular manner. He extracte~ some
amount from Patel brothers for not considering the proposal of their
detention under Prevention of Anti-social Activities Act. Ld. Counsel
· submitted that during investigation, CBI seized the passport of the
accused. The passport is on record. The entries in· the passport would
show that on the date on which Patel brothers allegedly paid the amount
to the accused, the accused was in fact out of India. This itself shows the
falsity of the allegation.
..;,
 5 7/:or-l s
8. Ld. Sr. Counsel further submitted that this court can certainly
peruse the entries in the passport establishing the above fact. He relied
on the ruling of the Hon'ble Apex Court in the case of Rukmini
Narvekar vs. Vijaya Satardekar & Ors. (.AIR 2009 SC 1013 ). He
I
also submitted that if the transcript of the dialogue of the meeting dated
29-03-2010 in between this accused and Patel brothers is pen1sed, this
court would certainly come to know that this accused did not give any
threat or promise asking the witnesses to give suitable statement which
will not implicate Mr. Amit Shah . He did not tamper the evidence at all.
He may be discharged.
9. As against this, Ld. Prosecutor Mr. B.P. Raju submitted that it
has come in the statement of Patel brothers that they were pressurized by
this accused to give statement against deceased Sohrabuddin about his
activities or else they would be detained under the Prevention of Anti-
social Activities Act. Patel brothers stated that they paid the accused
certain amount on three different dates. If the entries in the passport of
the accused are perused, they would show that the accused was out of
India only on one particular date. There is evidence on record to show
complicity of the accused in the offence and, hence, his application may be
rejected.
10. --It is now settled as to what is the scope of the enquiry to be
held by the Court while considering an application for discharge under
sec.227, Cr. P.C. In the case of "Shoraj Singh Ahlawat & Ors. vs.
State of U .P. & Anr~ ( 2013 Cri. L.J. 331) after taking note of all its
earlier rulings on the point, Hon 'ble Supreme Court laid down following
yardstick to be applied while considering such application, in para 16 :

"(1) That the Judge while considering the question offraming the
charges unde1 sec.227 of the Code has the undoubted power
to sift and weigh the evidence for the limited purpose of
finding out whether or not a prima facie case against the
accused has been made out:
 6 7(xrr/6
(2) Where the materials placed before the Court disclose grave
suspicion against the accused which has not been properly
explained the Court will befullyfustijied inframing a charge
and proceeding with the trial.
(3) The test to determine a prima facie case would nat;urally
depend upon the facts of each case and it is difficult to lay
down a rule of universal application. By and large,
however, if two views are equally possible and the Judge is
satisfied that the evidence produced before him while giving
rise to some suspicion but not grave suspicion against the
accused, he will be fully within his right to discharge the
accused.
( 4) That in exercising his jurisdiction under sec.227 of the Code,
the Judge which under the present Code is a senior and
experienced Judge cannot act merely as a Post Office or a
1nouth-piece of the prosecution, but has to cor..sider the
broad probabilities of the case, the total effect ofthe
evidence and the documents produced before the Court, any
basic infirmities appearing in the case and so on. This
however does not mean thai the Judge should make a roving
enquiry into the pros and cons of the matter and weigh the
evidence as if he was conducting a trial" ·

11. In the light of the above principles of law, I now proceed to

consider the facts of this case.
12. To show involvement of the accused in the alleged crime, the
prosecution relied on following facts :-
1. The accused gave threats to Patel brothers to give statement
to CBI as per instructions of other accused Mr. Abhay
Chudasama, so that Mr. Amit Shah, (then Minister of State.
(Horne) would not get involved.
2. He extracted an amount of Rs.70 lac from Patel-brothers for
differing their detention order to be passed under the
Prevention of Anti-social Activities Act, by the Minister.

13. To substantiate the above allegations, prosecution relied on

the statements of Patel brothers and transcript of the au~io-visual
/-:---.

7 7/xrr!?
recording of the meeting secretly done by Patel brothers.
14. It is to be noted that there is absolutely no evidence against
the accused that he took any part in the actual abduction and "killing of
Sohrabuddin and his wife Kausarbi. There is absolutely no evidence to
I

show his involvement in the stage managed encounter of Tulsiram

Prajapati. The allegations against the accused are that he tampered the
prosecution evidence by giving threats to Patel brothers.
15. It is alleged that the accused tried to extort a sum of Rs.70 lac
from Patel brothers. Both Ramanbhai Patel and Darshrathbbai Patel
stated in their statements that _as per demand of the accused, they paid
him Rs.25 lac on 16-05-2006, Rs.25 lac on 20-05-2006 and Rs.20 lac on
31-05-2006. It is their say that they have made entry of this transaction
in kutcha account~ However, they did not produce that kutcha accour.t
before CBI while the case was under investigation.
16. They stated details of the amount paid to this accused with
accurate dates. In this case, passport of the accused was seized by CBI
during investigation. Said passport is part of the record. Perusal of the
visa entries therein show that in between 23-05-2006 to 21-07-2006
the accused had visited Kingdom of Thailand. In short, on 31-05-2006
the accused was out of India. In such situation, it is not possible for
Patel brothers to hand over to the accused Rs.20 lac on 31-05-2006 as
alleged by them. Patel brothers statement becomes suspicious as far as
this aspect is concerned.
17. The accused produced on record copies of the passport and
visa entries .therein. I have already noted that passport is on record. Any
way, Hon'ble Apex Court in the case of Rukmini NaMJekar vs.
Vijaya Satardekar & Ors. (AIR 2009 SC 1013) has held that :
"In our opinion, therefore, it cannot be said as an absolute
proposition that under no circumstances can the court look
into the material produced by the defence at the time of
framing of the charges, though this should be done in very
rare cases, i.e. where the defence
I
produces some material
.
 8
7/ZIE/~
which convincingly demonstrates that the whole prosecution
case is totally absurd or totally concocted. We agree with
Shri Lalit that in some very rare cases the Court is justified
in looking into the material produced by the defence at the
time of framing of the charges, if such material convincingly
establishes that the whole prosecution version is totally
absurd, preposterous or concocted."

This court can certainly look into the documents produced by the defence
at the time of framing of the charge, if such material convincingly
establishes that the prosecution version is concocted. In this case also,
the document shows falsity of the prosecution case against the accused
as far as payment of the amount by Patel brothers to the accused on
31-05-2006 is concerned.

18. Even assuming for the sake of argument that Patel brothers
.,

might have paid some amount to tll,e accused, the question still remains
unanswered from the prosecution side as to what was the relevancy of
such evidence in this case. The prosecution alleged that the accused
asked the above amount from Patel brothers at the instance of Mr. Amit
Shah. There is no evidence to show that Mr. Amit Shah being Home
Minister of Gujarat was to pass detention order against Patel brothers
under the Prevention of Anti-social Activitie~ Act. Such a proposal was
not for consideration of the State Government. · There is also no evidence
on record to show that the accused was trusted aide of Mr. Amit Shah,
who had assigned the work of extracting money from Patel brothers. Be
that as it may, in view of the fact thatthe accused was out of India on the
date on which Patel brothers allegedly paid the amount, their statement as
far as this aspect is concerned cannot be accepted.
19. According to Patel brothers, they paid certain amounts to
this accused "Within a short span of time but, nothing was recovered from
the accused at his instance. It appears to me that Patel brothers alleged
that they paid certain amount to the accused only. for the sake of making
~-

9
?fur-/~
serious allegations to give the angle of extortion to this case.
20. Second set of allegation against the accused is that he
brought pressure on Patel brothers for not giving statement against Mr.
Amit Shah. There are total four statements of Patel brothers on record.
I

Three statements were recorded by CBI and the fourt_h statement was
recorded by the Ld. Magistrate under sec.164(5), Cr. P.C. Evidence on
record also shows that even prior to the alleged meeting of the accused
with Patel brothers, they had given statement to CBI. In short, the
prosecution allegation that the accused brought pressure on Patel
brothers not to disclose true and correct facts is not sustainable.
21. This court had already considered the statements of Patel
brothers while deciding the application for discharge filed by Mr. Amit
Shah (Ex.232) It has been observed that their statement against Mr.
Amit Shah was hearsay in nature. They had made improvements in their
statements periodically. They gave two different statements within a
span of one month, one before the CBI and the other before the Ld.
Magistrate but both the statements were virtually in ad-verbatim. In
short, this court had observed that it was risky to rely on their statements
to frame charges against Mr. Amit Shah.
22. Ld. Counsel Mr. Shirish Gupte submitted that this court's
general observations against statements of Patel brothers equally apply to
their statements as far as this accused is concerned. It is true that
general observations made by this court about· the statements of Patel
brothers have to be taken into consideration without deciding their
probative value at this stage. Ho"'!'ever, fact is that Patel brothers went on
improving their versions. Only one important distinguishing factor
about their statements against Mr. Amit Shah and this accused is that
their statements against Mr. Amit Shah was hearsay in nature and was
/

inadmissible in evidence. As far as their statements against this accused

is concerned, they made certain allegations against this accused but it

~-~----,.,.... ~.,..... -----~~-,.,. ..

{.':-

10
7~~c
appears from perusal of their statements that they did not state correct
facts. Moreover, their allegation that they paid some amount to this
accused, is not relevant as far as this case in hand is concerned.
23. I have gone through the transcript of the audio-visual
I

recording of the conversation of the meeting held in between this

accused and Patel brothers. Irrespective of the fact that there is no
evidence of the voice sample of the accused and also evidence about
recovery of pen-drive by which conversation was recorded is inconsistent,
at the same time pen1sal of the entire statements would show that the
accused did not give any threat or promise to Patel brothers.
24. In short, taking into consideration the prosecution evidence
'
as appears against the accused, I hold that it does not raise a strong
suspicion about involvement of this accused in the alleged crime. There
is no sufficient material on record to proceed against the accused to
frame charge against him. Hence, I pass the following order :-

ORDER
Application Ex.527 is allowed.
Accused No.17 Ajay Haribhai Patel is discharged
under sec.227, Cr. P.C. of the offences punishable under
/
sections 120-B r/w 364,365,368, 341,342,302, and 201, IPC
However, he is directed to execute fresh PR Bond in the sum
ofRs.15,000/- under sec-437-A, Cr. P.C.

(M.B. GOSAVI)
Special Judge for CBI,
Date:- : 28-04-2015 Gr. Mumbai.

Dictated on : 28-04-2015
Transcription
completed on : 02~05-2015
Signed on : 02-05-2015 -;.

.. - - ·-··- -·--··---·- ----·····-- ···- -~·--·-·-·---

r>
\:-: '

7/XI.Ir/1
IN THE COURT OF S_PECIAL JUDGE FOR CBI AT
GREATER BOMBAY

APPLICATION (Exhibit No.530)

m
SESSION CASE NOS.177 /2013 @ 178j2013
@ 577/2013 and@ 312j2014

Abhay Devisinh Chudasama,

residing at A-1/2, Shaligram-3,
Prahlad Nagar, Ahmedabad,
Gujarat. ..Applicant/
(Original Accused No.15)
V/s.

CBI., S.C.B. Mumbai. ..Respondent.

Sr. Adv. Mr. Shirish Gupte (with Mr. K.B. Rajput, Advocate) for
Accused No.15.
Mr. B.P Raju, SpLP.P. for the CBI.
CORAM: The Special Judge
M.B. GOSAVI.
DATE: 29th April, 2015.

Order below Ex.530

1. This application under sec.227 of the Code of Criminal
Procedure, 1973 filed by Accused No.15 Abhaysinh Chudasama for
discharge from the prosecution launched against him by the CBI for the
offences punishable under sections 120-B r/w 364, 365, 368, 341, 342,
302, 384 and 201, IPC.
r~

2 7/'l.lll_f Z-
2. The allegations against the accused in short are that
Sohrabuddin was well known to this accused. It is alleged that accused
used to use Sohrabuddin to create terror amongst businessmen m
I
Ahmedabad to nm a racket of extortion: The accused asked Sohrabuddin
to cause firing in the office of Patel Brothers in Ahmedabad . According
to the prosecution, this trick of the accused ·was part of criminal
conspiracy to book Sohrabuddin in some case to facilitate his encounter
by the other accused because the activities of Sohrabuddin had created
unrest in politicians and, more particularly, Mr. Amit Shah who was then
Minister of State (Home), Gujarat. Since the accused was trusted police
officer of Mr. Amit Shah, he was assigned the task to locat~ whereabouts
of Sohrabuddin who was then hiding out. The accused could track
Sohrabuddin with the help of Tulsiram Prajapati. Thereafter, other
police officers from ATS, Gujarat and RSTF,. Rajastan, abducted
Sohrabuddin and his wife Kausarbi and Tulsiram Prajapati from the
hDmry bus while they were travelling from Hyderabad to Sangli.

3· It is further alleged that on earlier night of encounter of

Sohrabuddin, the accused had interrogated him at Arham Farm House,
Ahmedabad, and, as such, accused was fully aware of the plan that
Sohrabuddin was to be killed in fake encounter.

4· Initially, that case was investigated by ATS, Gujarat, Dy. S.P.

M.L. Parmar. He filed abate summary report in the court of Ld.
Magistrate, stating that Sohrabuddin is killed in genuine encounter while
he was being apprehended at Surat Road. However, Rubabuddin Sheikh,
brother of Sohrabuddin, sent a letter to the Hon'ble Chief Justice of India
requesting to make enquiry about encounter of Sohrabuddin and
disappearance of his wife Kausarbi. Hon'ble Supreme Court forwarded
"
 3 7(XIIL/1
that letter to the D.G.P. of Gujarat for enquiry and necessary action. In
pursuance thereto, CID (Crime) Gujarat investigated the matter. It was
revealed during investigation that the encounter was fake. Resultantly,
charge-sheet came to be filed against 13 senior police officers and other
police personnel.

s. Mr. Rubabuddin Sheikh was not satisfied with this action.

Hence, he filed writ petition in the Ron 'ble Supreme Court requesting
therein to hand over the investigation of encounter of Sohrabuddin to CBI.
Meantime, Tulsiram Prajapati, eye-witness of the abduction of
Sohrabuddin, was also killed in another encounter. Hence, Hon'ble
Supreme Court directed the CBI to carry out further investigation in view
of the larger conspiracy involved in both the incidents.

6. When the matter was being investigated by CBI as per

directions of the Hon'ble Apex Court, it is alleged that accused tried to
influence Ramanbhai Patel and Dashrathbhai Patel to desist from giving
true and correct statement of facts to the investigating agency. Patel
brothers recorded the conversation between them and the accused by
audio-visual device secretly. It is also alleged against the accused that
he gave threats to the family members of Sohrabuddin to withdraw the
writ petition then pending in the Supreme Court.

7. To substantiate its allegations against the accused, the

prosecution relied on the statements of witnesses viz. PW-66 Ramanbhai
Patel, PW-67 Dashrathbhai Patel, PW-79 Noor Mohamed Ghogari, PW-
8o Mahendrasingh Zala, PW-4 Azam Khan, PW-65 Sylvester, PW-33
· Musthaque Ahmed, PW-179 Jabir Sher Mohammed, PW-6 Firoze @ Raju,
PW-5 Rafique@ Bunti, and PW-194 Murtaza Khan. Prosecution also
relied on the transcription panchanama of conversation between the
 ~-­
/

4 7/mr/4
accused and Patel brothers. It is at Ex.D-183.

8. The accused claimed discharge on the following grounds:-

1) He has been falsely implicated by the CBI in the alleged crime
I
2) Prosecution relied on statements of witnesses which are
hearsay in nature.
3) Videograph of the alleged sting operation done by Patel
brothers at the instance of CBI is not admissible in evidence.
Moreover, no evidence of incriminating nature came fonvard
inspite of such sting operation.
4) There is absolutely no evidence to show that he interrogated
Sohrabuddin at Arham Farm House on earlier night of
encounter. In fact, at that time, he was posted as
Superintendent of Police ofValsad and was at Valsad
which is 350 kms. away from Ahmedabad. There is evidence
to prove the said fact.
5) He never influenced any witnesses offering them Rs.5o·lac as
.alleged, and never gave threats to anybody asking them to
withdraw the writ petition.
6) He has been implicated in this case by CBI to develop their
case oflarger conspiracy.

9. The prosecution resisted the application by its say a~ Ex.

530-A. It is stated that statements of witnesses PW-4 Azam Khan, PW-5
Rafique @ Bunti, PW-6 Firoze @ Raju, PW-66 Ramanbhai Patel, PW-67
Dashrathbhai Patel, PW-79 Noor Mohamed Ghogari, and PW-80
Mahendrasingh Zala, show that the accused was party to the criminal
conspiracy.

10. The accused had directed Sohrabuddin to cause firing in the

:;..
/~--....

5 7/Y,IIL/ S

office of Patel brothers so as to book him in that case in order to facilitate

his encounter. Sohrabuddin was being used py the accused as a tool for
extortion.

I
11. On 25-11-2005 the accused had lastly interrogated
Sohrabuddin at Arham Farm House before his encounter. He tried to
influence the family members of Sohrabuddin to withdraw the writ
petition filed in Supreme Court by offering a handsome amount to them.
He also brought pressure on Patel brothers for not disclosing true and
correct facts to CBI about the crime, which was under their investigation.

12. At this stage, minor contradictions and omissions in the

statements of witnesses cannot be the ground for discharge of the
'\ accused. Although Mr. Amit Shah is discharged from the case but the role
of this accused in criminal conspiracy is more prominent and, hence, his
application for discharge may be rejected.

13. I have gone through the material and evidence on record on

which prosecution proposed to rely against the accused. I heard
submissions of Ld. Sr. Counsel Mr. Shirish Gupte and Ld. Sr. Prosecutor
Mr. B.P. Raju at length.

14. Ld. Sr. Counsel Mr.Gupte submitted that there are no

allegations against this accused that he_ actually took part in the abduction
and encounter of Sohrabuddin and killing of his wife Kausarbi. There is
also no evidence on record to show that Mr. Amit Shah, then Minister of
State (Home), directed this accused to carry out operation of abduction
and killing of Sohrabuddin. The alleg~tion against the accused that he
lastly interrogated Sohrabuddin on earlier night of encounter is palpably
false as the accused was then working as S.P. ofValsad and was atValsad.
(~'::

6
l(xrTL/ b
He never came to Arham Farm House. To show his location at Valsad at
that point of time, the call data record (CDR) of his cell-phone No. 9825
049311 was collected by CBI as per order of this Court below Application
Ex.103. The CDR is now part of the record. It shows th~t at the material
time the accused was posted as Valsad and not in Ahmedabad. ·1

15. Ld. Sr. Counsel further submitted that the prosecution

alleged that the accused offered Rs.so lac at the instance of Mr. Amit
Shah to witness Naimuddin Sheikh (brother of Sohrabuddin) through P\tV-
4 Azam Khan, asking him to withdraw the writ petition filed in the
Supreme Court. But, admittedly, that petition was for transfer of the
investigation from CID (Crime), Gujarat, to CBI and nothing else. ~·
1ne
accused had :rio reason to show interest in withdrawing such writ petition
which was for' transfer of investigation. Apart from the fact that there is
no legal evidence to sustain the above allegation, the allegation itself.does
.

not indicate participation of the accused in the alleged criminal ·

conspiracy of abduction and killing of Sohrabuddin.

16. Ld. Sr. Counsel then took me through the statements of

Ramanbhai Patel and Dashrathbhai Patel and transcript panchnama of
the sting operation done by them. He submitted that this court had
already dealt with the statements of Patel brothers while deciding the
discharge application of Mr. Amit Shah, in order dated 30-12-2014. This
'
court found that Patel brothers statements recorded under sec.164(5), Cr.
P.C. by the Ld. Magistrate cannot be relied on, as the statement was in ad-
verbatim with the earlier statements recorded by CBI under sec.161, Cr.
P.C. a month ago. It was not possible for any witness to state all the facts
in ad-verbatim as per their earlier statement. The statements were found
to be unworthy of credit because Patel brothers went on improving their
versions periodically. For the same reason, said statements cannot be
'
..........--..,,

7/XIIL/7
7

relied upon against this accused. Moreover, they do not implicate the
accused in the alleged crime in any manner.

17. Ld. Sr. Counsel Mr. Gupte further pointed out that in
I
transcript panchnama Ex.D-183, it is shown that the pen-drive in which
alleged sting operation was videographed, was seized by the CBI from
their house, whereas Ramanbhai Patel in his statement recorded by the
CBI stated that he had handed over that pen-drive to CBI. There is a gap
of four months in between the seizure panchnama and the statement of
Ramanbhai Patel. On the basis of such tainted evidence, no inference can
be drawn that the accused was part of criminal conspiracy to cause
disappearance of material evidence. Moreover, no incriminating evidence
against the accused appears in the so-called sting operation.

18. Ld. Sr. Counsel lastly submitted that the statements of the
witnesses on which prosecution relied, are hearsay in nature. They
cannot be considered as they are not admissible even under sec.6 of the
Indian Evidence Act because that evidence is not in the form of
statements made about the alleged crime in proximity with the alleged
incident. Ld. Counsel relied on the ruling in the case of "State of
Maharashtra vs. Kamal Ahmed Mohammed Vakil Ansari & Ors"
((2013) 12 SCC 17) and "Krishan Kumar Malik vs. State of
Haryana" ((2011) 7 SCC 130).

19. Ld. Sr. Counsel further submitted that the scope of enquiry
for deciding an application uhder sec. 227, Cr. P.C. is well explained by
the Hon'ble Apex: court. ~ The evidence on record must be of such a
nature that it raises a strong suspicion about the involvement of the
accused in the crime and the accused had not offered any plausible
explanation about the evidence that appears against him on record. He
r>.

8
7/YIJI/ ~
relied on rulings in the case of:
1) "'P. Vijayan vs. State ofKerala" ((201o) 2 SCC 398);
2) "Sajjan Kumarvs. CBI" ((2010) 9 SCC 368);
3) "Yogesh@ Sachin Jagdish Joshi vs. State of
Maharashtra" ((2008) to SCC 394)
4) "Soma Chakravarty vs. State through CBI"
((2007) 5 sec 403)
5) "Dilawar Balu Kurane vs. State of Maharashtra"
((2oo2) 2 sec 135)
6) "Niranjan Singh Karam Singh Punjabi vs. Jitendra
Bhimraj Bijja" ((1990) 4 SCC 76)
7) "Union of India vs. Prafulla Kumar Samal''
((1979) 3 sec 4)
8) "~J:ateofBiharvs. Ramesh Singh" ((1977) 4 SCC 39)
9) "State ofKarnataka vs. L. Muniswamy"
((1977) 2SCC 699)

20. As agaip.st this, Ld. Prosecutor Mr. B.P. Raju submitted that
there is evidence on record to show that the accused was the person to get
whereabouts of Sohrabuddin in order to abduct him and as such he was
the main conspirator. Tulsiram Prajapati wrote several letters to various
authorities. They are at Ex.D-163 to D-169. They show that Gujarat
police had falsely promised him that if he told them whereabquts of
Sohrabuddin, they will not cause any harm to Sohrabuddin but, later on,
Sohrabuddin was encountered. There is also evidence on record to show
that the accused asked Sohrabuddin to cause firing in the office of Patel
brothers which was part of the conspiracy to nab Sohrabuddin in some
case, as no case was pending against him in the State of Gujarat.

21. Ld. Sr. Prosecutor further submitted that admissibility of the

...----.

9 7/XIIE/1
evidence in the form of statements of witnesses and evidence of sting
operation can be considered at this stage. There is ample evidence to
show involvement of this accused. In such situation, charge has to be
framed against this accused. To substantiate his argument, Ld. Sr.
I
Prosecutor relied on number of rulings. They are :
1) "State of Bihar vs. Ramesh Singh" (1977 Cri. L.J. 1606 (1)
2) "State ofKarnatakavs. L. Muniswamy"
(1977 Cri. L.J. 1125 (1)
3) "Union of India vs. Prafulla Kumar Samal"
(1979 Cri. L.J. 154(1)
4) "State of Maharashtra vs. Somnath Thapa"
(1996 Cri.L.J. 2448)
5) "State of Orissa vs. Debendra N ath Padhi"
(AIR 2005 SC 359)
6) "P. Vijayan vs. State ofKerala" (201o Cri. L.J. 1427)
7) "Shoraj Singh Ahlawat & Ors. State ofU.P. &Anr."
(2013 Cri. L.J. 331)
8) "Rukmini Narvekar vs. Vijaya Satardekar"
(AIR 2009 SC 1013)

22. I had given my anxious thought to the evidence on record and

submissions made at the bar. At the outset, it is to be noted that the law
relating to the scope of enquiry to be done by the court while considering
application for discharge under sec. 227, Cr. P.C. is now well settled.
Honble Supreme Court taking note of all its earlier rulings on the point,
held in the case of "Shoraj SinghAhlawat & Ors. vs. State ofU.P. &
Anr. (2013 Cri. L.J. 331) (supra) in para 16 that :-

"(1) That the Judge while considering the question offraming the
charges under sec.227 of the Code has the undoubted power
to sift and weigh the evidence for the limited purpose of
finding out whether or not a prima facie case against the
!
-~·---

7 jzrrr j1o
lO

accused has been made out:

(2) Where the materials placed before the Court disclose grave
suspicion against the accused which has not been properly
. explained the Court will be fully justified in framing a charge
and proceeding with the trial.
(3) The test to determine a prima facie case would natprally
depend upon the facts of each case and it is difficult to lay
down a rule of universal application. By and large,
however, zf two views are equally possible and the Judge is
satisfied that the evidence produced before him U)hile giving
rise to some suspicion but not grave suspicion against the
accused, he will be fully within his right to discharge the
accused.
(4) That in exercising his jurisdiction under sec.227 of the Code,
the Judge which under the present Code is a senior and
experienced Judge cannot act merely as a Post Office or a
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1,.,,.,.. h·rrc- -tn r-rl"n.cir/o..,..
LILC. jJI V"V\J.oU.I.t.VIL' VU.L I C.\..&~ L.V' ..._.VIk.JU...C.'-"•
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broad probabilities of the case, the total effect of the

evidence and the documents produced before the Court, any
basic infirmities appearing in the case and so on. This
however does not mean that the Judge should make a roving
enquiry into the pros and cons of the matter and weigh the
· evidence as if he was conducting a triat' ·

23. In the light of the abo~e principles, I now proceed to consider

the evidence on record relied on by the prosecution against the accused .

24. To show complicity of the accused in the alleged cnme,

prosecution relied on the following facts and circumstances: -
1. The accused was using Sohrabuddin as tool for extortion.
2. He tracked whereabouts of Sohrabuddin with the help' of
Tulsiram Prajapati and thereafter Sohrabuddin was
abducted by other accused.
3· Accused lastly interrogated Sohrabuddin at Arham Farm
House on the earlier night of his encounter.
4. Accused tried to influence the witnesses Naimuddin and
Rubabuddin Sheikh offering them Rs.so lac to withdraw the
writ petition and upon their refusal, he gave threats to them.
 ..--:-'·,
(
",·•
7/:mr/11
11

5. Accused brought pressure on Patel brothers for not giving

statement to CBI which would have caused inconvenience to
him and other accused and the episode was videographed by
Patel brothers secretly.

25. It is to be noted that the fact at Sr. No.1 is relied on to show

motive of the accused to abduct and kill Sohrabuddin. Fact at Sr. No.2 is
relied on to show his actual part in the abduction and killing. Fact at Sr.
N 0.3 is relied on to show his complicity as one of the conspirators in
fake encounter of Sohrabuddin and, facts at Sr. No-4 & 5 are to show
that the accused tried to influence and intimidate the witnesses to cause
disappearance of material evidence.

26. To prove the facts at Sr. Nos.I & 2, the prosecution relied on
the statements of: PW-79 Noor Mohamed Ghogari, PW-80
Mahendrasingh Zala, PW-4 Azam Khan, PW-33 Musthaque Ahmed,
PW-179 Jabir Sher Mohammed, PW-6 Firoze@ Raju, PW-5 Rafique @
Bunti, and PW-194 Murtaza Khan. I have minutely gone through the
statements of above witnesses. Ld. Sr. Counsel Mr. Gupte submitted that
all these witnesses were once hardened criminals, whom the accused had
arrested and prosecuted at one point of time in the past. In view of this,
their statements are to be considered very carefully.

27. It_ is true that the above witnesses were involved in some or
the other crime in the State and some of the crimes might have been
investigated by the accused. It is equally true that in such situation, their
statements_are to be considered very carefully. However, I hold that only
because a particular witness has criminal background, is no reason to
discard his statement atleast at this stage, though it requires close
scrutiny. I have gone through their statements. I find that most of them
r.-~"'
!·"

7/BJL/•Y
12

are either unconnected vvith the alleged crime or they are hearsay in
nahue and hence cannot be considered.

28. PW-79 Noor Mohammed Ghogari stated that in 2001,

I
accused had sent him to Indore to bring weapon. Later on, accused
implicated him and Sohrabuddin in false case of carrying firearms. The
accused had planted those arms in his jeep for which he was inside the jail
till 2004. He came to know about the firing in Patel brothers office from
newspaper reports. It shows that he had no knowledge of the alleged
conspiracy hatched by the accused in causing firing in Patel brothers
office. He further stated that after encounter of .Sohrabuddin, he was
.

detained by ATS, Gujarat alongwith other persons. The accused and Mr.
Vanzara beat him while he was in custody. These allegations appear to be
an after-thought. In fact, his statement was recorded almost five years
after the incid,ent. It is fact on record that he was arrested and prosecuted
by the accused. On the face of such evidence, no inference can be drawn
that the accused had used Sohrabuddin as a tool for extortion. It appears
that this witness has tendency to make allegation because he even cast
some doubt about the Judge who granted him bail, because having
rejected his earlier bail applications, the same Judge granted him bail. It
shows mindset of this accused in levelling baseless allegation. Even
otherwise, his statement is not at all enough to raise suspicion about
involvement of the accused in the alleged crime.

29. Statement of PW-80 Mahendrasingh Zala also js in line with

the statement ofPW-79 Noor Mohammed Ghogari. ·He was also detained
by ATS, Gujarat, after encounter of Sohrabuddin. He also referred to the
incident of 200i about carrying of firearms by Ghogari, which has no
connection with this crime.
 13
7/WE-/13
30. By reading the statements of PW-79 Noor Mohammed
Ghogari and PW-So Mahendrasingh Zala what could be gathered is that
the accused being police officer, had arrested both of them in 2001 in
connection with the some incident of carrying firearms. They remained in
I
jail. In view of this, if at all their statements are accepted as it is, it
transpires that the accused was knowing Sohrabuddin as one of the
criminals. It was obvious and natural that such witnesses m-ay state
anything out of vengeance.

31. Ld. Sr. Counsel Mr. Gupte submitted that witnesses being
hardened criminals conveniently stating some facts against the accused
because they were arrested and prosecuted by the accused at one point of
time. Now, ten years thereafter they had given statements against the
accused when they were given an opportunity by the CBI to state
something. It is quite difficult for me to lightly brush aside the above
argument of Ld. Counsel. I hold that this submission of Ld. Counsel
Mr. Gupte holds the water. Moreover, statements of above two witnesses
are referring to some incident that had taken place in the year 2001. No
evidence appears against the accused to hold that the accused was in
close contact with Sohrabuddin and the accused used Sohrabuddin as a
tool for extortion. There is absolutely no evidence on record to show that
at the instance of accused, Sohrabuddin caused firing in the office of
Patel brothers.

32. I' have gone through the statement of Dashrathbhai Patel

PW-67, dated 16-03-2010. He states in his statement that in 2001 one
Manilal Goshar had come to his office with two _unknown persons. Said
Manilal Goshar gave him threats to refund his amount of Rs.1.5 crore
which were borrowed by Patel brothers from him. He identified one
unknown person amongst the two, as Sohrabuddin. Said Manila! Goshar
(.----..,

14
7/~h4

had used Sohrabuddin to give threats to Patel brothers . In short, there

were threats to Patel brothers from Sohrabuddin at the instance of said
Manilal Goshar because they were not pa-ying back his money. There may
be possibility that the firing in their office dated 16-04-2004 was
outcome of that dispute. It has also come in the statement of Patel
brothers that in fact this accused had told them that he received
information that Manilal Goshar was going to give supari to some
criminals and they should be alert.

33. In short, the allegation of the prosecution against this

accused that he had caused firing in Patel brothers office through
Sohrabuddin as a plan to nab Sohrabuddin does not stand to logical
· scrutiny. On the basis of such evidence, no charge can be framed for
offence punishable under sec.364 r/w 120- B, IPC.

34. It is also alleged against the accused that he collected

information about the whereabouts of Sohrabuddin to facilitate other
accused to a"~?duct him. For this, prosecution relied on the statements of
Azam Khan PW-4, PW-179 Jabir Sher Mohammed, PW-6 Firoze@ Raju,
PW-s Rafique @ Bunti, and PW-194 Murtaza Khan. All of them were
admittedly arrested by Hathipol police station, Udaipur, Rajastan, in
connection with Hamid Lala murder case alongwith Tulsiram Prajapati.
They stated that Tulsiram Prajapati told them that he had ,disclosed
whereabouts of·Sohrabuddin to Gujarat police and-was promised that
they were not going to cause any harm to Sohrabuddin.. It is needless to
say that this evidence is hearsay in nature and cannot be relied on being
inadmissible.

35. Ld. Sr. Prosecutor Mr. B.P. Raju submitted that their
statements can be relied on in view of sec.6 of Indian Evidence Act. As
.;,
'~

15 7/xrJL/IS
against this, Ld. Sr. Counsel Mr. Gupte submitted that their statements
cannot be considered under the rule of res-gestae for the simple reason
that that they are not made in proximity with the incident of abduction
of Sohrabuddin. He submitted that the Hon'ble Supreme Court explained
i
the scope of applicability of evidence falling under sec.6 of the Evidence
Act in its rulings in the case of "State of Maharashtra vs. Kamal
Ahmed Mohammed Vakil Ansari & Ors. ((2013) 12 SCC 17) and
"Krishan Kumar Malik vs. State ofHaryana" ((2011) 7 SCC 130.

36. I have gone through both the above rulings. In the ruling in
the case of "State of Maharashtra vs. Kamal Ahmed Mohammed
Vakil Ansari & Ors. ((2013) 12 SCC 17) it is held by Hon'ble Supreme
Court in para 38 that:-
"Reliance was also placed on decision rendered in "Gentela
Vijayavardhan Rao vs. State ofA.P." wherein this court
held that the principle of law embodied in section 6 of the
Evidence Act is expressed as 'res gestae'. The rule of 'res-
gestae' it was held, is an exception to the general rule that
hearsay evidence is not admissible. The rationale of making
certain statements or facts admissible under section 6 of the
Evidence Act, it was pointed out, was on account of
spontaneity of such statement or fact in relation to the "fact
in issue". And thereafter, such facts or statements are treated
as a part of the same transaction. In other words, to be
relevant under section 6 of the Evidence Act, such statement
must have been made contemporaneously with the fact in
issue, or atleast immediately thereupon and in conjunction
therewith. If there is an interval between the fact in issue
and the fact sottght to be proved then such statement cannot
be described as falling in the "res gestae" concept."

37. , In view of the above pronouncement of law, I hold that the

statements of witnesses in this case recorded almost five years after the
alleged incident of abduction of Sohrabuddin cannot be relied on,
holding to be admissible under sec.6 of the Evidence Act.
 ,.,.---...,
('' ·~1)

16
7 {1JIT- jtrJ
~:
'·
38. To show involvement of the accused as one of the conspirators
..,~ in fake encounter of Sohrabuddin, it is alleged that on 22-11-2005 this
accused lastly interrogated Sohrabuddin before his actual encounter.
However, on the basis of evidence on record, I hold that this allegation

'~~ against the accused is absolutely baseless.

.
establish this fact. I fail to understand on the basis of what evidence the
There is no evidence to

~ Investigating Officer has levelled this charge against the accused?

a
J.

39. There are. two eye-witnesses of actual abduction and

encounter of Sohrabuddin. They are: Nathuba Jadeja and Bhailal
Rathod. No doubt, both of them later on retracted their statement
recorded by CBI. But, none of them stated that they had seen the accused
on the spot or in Arham Farm House on earlier night alongwith
Sohrabuddin.

40. On behalf of the accused, it is submitted that at the material

time the accused was working as Superintendent of P:olice, Valsad. At
that time, he was at Valsad and had not come to Ahmedabad. To prove
this fact, accused had filed an application before this court (Ex.103)
requesting this court to direct the CBI to collect the CDR of his official
cell-phone No.9825 049311. This application was allowed by this court.
CDR was collected and it is now part of the record. However, I feel that it
is not necessary to go into that controversy to know whether, the accused
could have managed to be at Arham Farm House, coming all the way from
Valsad. On the basis of evidence on record, I h_old that there is no
material to indicate that the accused had lastly interrogated
Sohrabuddin at Arham Farm House before his encounter and, hence, he
was party-to the conspiracy to kill.Sohrabuddin. In such situation,. no
charge under ~ection 302 r/w 120-B, IPC, can be framed against the
accused.
:,:,

---·· ----· ·- ---· ·-· ·---·-···----····-···

('~'

17 7/'E!f/t7
41. This now takes me to the allegation against the accused that
he tried to influence and intimidate witnesses i.e. Patel brothers,
Naimuddin Sheikh and Rubabuddin Sheikh. I first proceed to deal with
I .
the statements of Naimuddin Sheikh and Rubabuddin Sheikh, brothers of
Sohrabuddin. It is alleged that the accused offered them Rs.so lac for
withdrawing the writ petition filed by them in the Supreme Court and
upon their refusal, accused gave them threats.

42. To substantiate this allegation, prosecution relied on the

statements of PW-4 Azam Khan, Naimuddin Sheikh and Rubabuddin
Sheikh. Azam Khan stated that one of his friends Ahmed Jabir took him
to Crime Branch office at Ahmedabad. He met the accused. The accused
requested him to ask relatives of Sohrabuddin not to proceed in enquiry
of Sohrabuddin encounter case and for that he would pay them Rs.so
lac. Accordingly. Azam Khan gave this message to Munna, i.e.
Naimuddin Sheikh but Naimuddin rejected the offer. This incident took
place after March, 2009.

43. It is not in dispute that by that time writ petition filed by

Rubabuddin Sheikh for CBI investigation was being fought hotly by the
parties to the proceeding. If Rubabuddin and Naimuddin had really
received such offer or threats from accused, they certainly would have
brought that fact to the notice of the Hon'ble Supreme Court but they did
nothing. In this regard, Rubabuddin's statement is hea~say in nature. The
accused never met him and talked to him. Naimuddin stated that the
accused had spoken to him over telephone but he did not give details as to
his phone number, or from which number he received the call etc. There
is no detail of this call available on record.
 !r-.

7/XJICf,~
18

44. It is submitted at the bar that later on Naimuddin Sheikh

told before India 1V news channel that in ,fact no one had approached
him with such offer.

45. According to Azam Khan PW-4, accused had requested him to

. convey the above offer in March, 2009. It is a matter of record that even
thereafter statement of Naimuddin and Rubabuddin were recorded bv
. . . . . • . J

CBI and they stated all the facts about the crime which they wanted to
disclose. In sho:rt, the alleged offer or threat from the accused did not
desist them from giving statement to CBI. In short, on the basis of the
statement of Azam Khan PW-4, no inference can be drawn that the
accused tried to influence and intimidate the witnesses for not pursuing
the matter in Supreme Couit. Accused cannot be charged for attempting
to cause disappearance of evidence on the basis of such evidence.

46. The prosecution relied on the transcript panchnama dated

. .
20-07-2010. It is alleged that the accused tried to bring pressure on
Ramanbhai Patel and Dashrathbhai Patel for J)Ot giving incriminating
statement against other accused to CBI. The proceeding of the meeting
and the dialogues were videographed by Patel brothers by sting operation.
The recorded episode was later on transferred in pen-drive. · CD was
prepared therefrom. In this panchnama, it is mentioned that pen-drive is
collected from the house of Patel brothers on 20-10-2010 wpereas,
Dashrathbhai Patel in his statement dated 06-04-2010 stated that he had
already handed over that pen-drive to CBI. It is no one's claim that there
are more than one pen-drive. This anomaly in prosecution case creates
doubt about the seizure of the pen-drive by inv~stigating agency, in
which alleged conversation between the accused and Patel brothers was
being recorded.

r-·-
,/·-:-'> ..

19 7 {XTIE(t t
47. Apart from this, if one goes through the transcript of the
conversation on record, it does not support the prosecution case that
accused gave threats to Patel brothers. The conversation is in Gujarathi.
It has been translated in English by Official Translator. Perusal of it
I
shows that in fact the accused told Patel brothers that: "Whatever is true, _
you say the same". This appears to be the sum_ and substance of their
conversation. It appears from the evidence on record that this
conversation was recorded by Patel brothers on 01-02-2010. By that
time, CBI has taken up investigation as per order of the Hon'ble Supreme
Court. One does not know whether this conversation was recorded at the
instance of any police officer or not. But there is nothing in the
conversation for drawing an inference that the accused gave threats and
brought pressure on Patel brothers for not stating true and correct facts
to CBI relating to the crime.

48. So, considering the entire· evidence, it is seen that the accused
may be knowing Sohrabuddin as one of the criminals but, there is no
evidence to hold that he was being used as a tool for extortion. There is
also no sufficient and legal evidence on record to infer the fact that the
accused tracked whereabouts of Sohrabuddin from Tulsiram Prajapati to
facilitate his abduction by other accused. There is absolutely no
evidence on record to show that the accused lastly interrogated
Sohrabuddin before his encounter and hence he was part of
Sohrabuddin's fake encounter; The evidence on record is not sufficient
to hold that the accused caused disappearance of material evidence by
giving threats to witnesses. The evidence and material on record is not
enough to proceed to frame charge against the accused .for the offence
for which he has been prosecuted. Resultantly, I proceed to pass the
following order :-
 ~i.
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7 {zUL(z_c
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~~

Ii ORDER
Application Ex.530 is allowed.
~~;-

1
11
Accused No.15 Abhay Devisinh Chudasama stands
discharged of the offences punishable under sections 120-B
~
i
~
rfw 364, 365, 368, 341, 342,302, 384 and 201, IPC.
I
I However, he is directed to execute fresh PR Bond in the sum

II ofRs.15,oooj- undersec-437-AofCr. P.C.

Application Ex.530 stands disposed of accordingly.
~
~-~,

~~
~!'; (M.B. GOSAVI)
*m <;;!n~nial .Tnrhrt=> frw
up'-''-'.&. .~..'"'~"\o,..Lb'"'
f'lH.... ,
... ............
~ ~

"' Date:- : 29-04-2015 Gr. Mumbai. ·

I
~
Dictated on : 29-04-20~5 ·
Transcription
completed on : 06~05-2015
I Signed on : 06~05-2015

I~
'ti•
j,

....
~~"'

7/XiY/'
IN THE COURT OF SPECIAL JUDGE FOR CBI AT
GREATER BOMBAY

WRITTEN SUBMISSIONS (Exhibit No.517)

m
SESSION CASE NOS.177J2013@ 178/2013
@ 577/2013 and@ 312j2014

D.G. Vanzara ..Applicant/

(Original Accused No.1)
V/s.

CBI., S.C.B. Mumbai. .. Respondent.

Adv. Mr. V.D. Gajjar for Accused No.1 (absent)

Mr. B.P Raju, Spl.P.P. for the CBI.
CORAM: The Special Judge
M.B. GOSAVI.
DATE: 26th May, 2015.

Order below Ex.1

(In view of written submissions. made by Accused N0.1 D. G. Vanzara vide
EX.517)
1. Accused No.1 D.G. Vanzara had filed an application at Ex.24
protesting CBI's proposal of dropping the name of Accused No.14
Vijaykumar Arjunbhai Rathod from the prosecution. CBI had filed three
supplementary charge-sheets against total 38 accused upon completing
further investigation of this case, popularly known as 'Sohrabuddin and
Tulsiram Prajapati Encounter Case'. Further investigation was carried by
CBI as per the directions of the Hon'ble Supreme Court in Writ Petition
r-
2 7/YlL /z_
No.6-2007 ..

2. Initial investigation of both the cases (the case of allegation of

fake-encC?unter of Soharabuddin by ATS, Gujarat, and fake-encounter of
I
Tulsiram Prajapati by ATS, Gujarat and RSTF, Rajastan) was carried by
CID, Crime, Gujarat. CID, Crime, Gujarat, arrayed Vijaykumar A. Rathod
as Accused No.14 in case bearing charge-sheet No.256-2007. Ld.
Magistrate had committed that case to the court of Addl. Principal Judge,
City Sessions Court Room No.2, Ahmedabad. In that charge-sheet, said
Vijaykumar A. Rathod was abn1ptly shown as PW No.165, though his
name was appearing as accused in column No.2 of the charge-sheet,
meaning thereby that said accused was not sent for trial.

3· Accused Nos.1, 6 and 13 filed application before the Ld. Addl.

Sessions Judge, requesting therein to join said Vijaykumar A. Rathod as
accused although he is cited as a witness by the Investigating Officer. Ld.
Judge made a Reference to the Hon'ble Gujarat High Court because
question of law and procedure was raised before him, stating that:
"Whether Investigating Officer has power to cite one of the
accused as witness of prosecution wi~out adverting to the
provisions of sec.306 of Cr. P.C." and
"What was the scope of the applicability of the provisions of
sec.319, Cr. P .C. to make a prosecution witness as ac~used

and at what stage" ..

4. Hon'ble Gujarat High Court answered the said Reference.

The Reference is reported in the case of "Ld. Additional Principal
Judge vs. State of Gujarat" (2oo8 (2) G.L.H. 232). Hon'ble
Gujarat High Court considered the facts of the case, material collected
during the investigation against Accused No.14 Vijaykumar A. Rathod. and
...
/~'.

3 7frJI-/3
the provisions of sec.306 and 319 of the Code of Criminal Procedure, 1973.
It was held that:
"As a cumulative effect of the aforesaid facts, reasons and
judicial pronouncements, this Reference .is answered and
allowed. The learned Chief Metropolitan Mab~strate,
Ahmedabad, is hereby directed to add the name of
Mr. Vijaykumar, son of Aijunbhai Rathod, Police Inspector,
as an accused in the committal order to stand tnal before
the Court of Sessions, arising out of ATS police station
C.R No. I-s of 2005 (Sessions Case No. 256 of 2007) for
the offences punishable under sections 302, 365, 368, 120-B,
201) 44, and 193 of the Indian Penal Code and sections
25(1) and 27 of the Arms Act and to rectify the committal
order. This Reference is answered accordingly and disposed
o£" -

s. Accused No.14 Vijaykumar A. Rathod challenged the above

finding of the Hon'ble·Gujarat High Court by filing S.L.P. No.3446-2oo8
in the Hon'ble Supreme Court. However, the S.L.P. was later on
withdrawn by the accused, making a statement therein that the prayer
became infructous.

6. In short, as of today, the finding of Hon'ble Gujarat High

Court has reached finality whereby it is held that Mr. Vijaykumar A.
Rathod is Accused No.14 in Sessions Case No.256-2007. Thereafter, he
, was arrested and later on released on bail by the Hon'ble Gujarat High
Court.

7- CBI carried further investigation. CBI filed three

supplementary charge-sheets. In the second supplementary charge-sheet,
CBI stated in para 47 that Accused No.14 Vijaykumar A. Rathod is not
charge-sheeted. CBI had taken the said stand even after the judgment
of Hon'ble Gujarat High Court which was pronounced on 01-04-2008 in
Criminal Reference Case No.t-2008 cited supra.
,r:--:----
1

4
7jxrr-/4
8. Meantime, Hon'ble Supreme Court transferred the cases to
this court by its order dated 27-09-2012 in Transfer Application No-44-
2011. Accused No.14 was attending this court initially. Thereafter, he
started sending applications by fax seeking exemption and specifically
. mentioning that he has not been tharge-sheeted.

9· On 16-3-2013 Accused No.1 D.G. Vanzara ·filed an

application before this court vide Ex.24, requesting therein to summon
Accused No.14 V.A. Rathod to stand for trial. My learned predecessor
disposed of that application without • passing order of its rej-ection or
allowing, mainly because the S.L.-P. filed by Accused No.14 challenging the
order of Hon'ble Gujarat High Court wa~ then pending before the Hon'ble
Supreme Court. Hon'ble Supreme Court was also seized of the matter
involving the question of law whether the S.essions Judge can take
cognizance of the offence ip. view of the bar under sec.193 of the Cr. P.C ..
and when cognizance of the offence can be taken against a person who is '
not shown as an accused but against whom some evidence and material
appears in.the charge-sheet) by invoking the provisions of sec. 319 of Cr.
P.C.

10. Hon'ble Supreme cOurt in the case of "Dharam Pal & Ors.
vs. State of Haryana & Anr" (AIR 2013 SC 3018) answered both the
questions holding:
"The Sessions Judge is. entitled to issue summons under
sec.193, Cr. P.C. upon the case being committed to him by
the learned Magistrate." and
"The Sessions Judge maysummon those persons shown
in coJumn 2 of the police report to stand trial alongwith
the accused already named therein. The plea that the
Sessions court would have no alternative but to wait till
"
(~---

5 7/xrc/s
the stage of sec.319, Cr. P.C. to reach, before proceeding
against whom prima facie case was made out from the
material contained in the case papers sent by the Ld.
Magistrate while committing the case to the \ourt of
Sessions, cannot be accepted."

11. Irr short, now the law on the above controversy is settled by
the Hon'ble Supreme Court holding that the Sessions Judge can take
cognizance of the offence against a person who is not sent for trial or
who is not shown as an accused, if upon perusing the charge-sheet and
papers of investigation prima facie case appears to be made out against
such person. The Sessions Judge need not wait uptc the stage
contemplated under sec.319, Cr. P.C. i.e. only after taking some evidence
during the trial.

12. Now, coming back to the factual aspect of this case,

Vijaykumar A Rathod was shown as one of the accused. However, while
filing charge-sheet, the I.O. mentioned his name as an accused not sent
for trial and had also shown him as prosecution witness No.165. In my
considered opinion, the I.O. did not follow the procedure laid down
under sec.306 of Cr. P.C. Hon'ble Gujarat High Court held that
Vijaykumar A. Rathod must stand trial as an accused. That order has
already reached finality. Inspite of that, CBI while filing charge-sheet
mentiom!d that Vijaykumar A Rathod is not sent for trial and is a
prosecution witness. In fact, this stand of CBI even after the order passed
by the Bon 'ble Gujarat High Court, is not correct, proper and legal. It is a
fact on record that Hon'ble Supreme Court did not set aside the order of
Hon'ble Gujarat High Court by which Vijaykumar A. Rathod is arrayed as
an accused.

.\

·-·----- ---·--- --,-- ·---------~-- --- -··----·---------------------------~-----~,---~-----··

0
6 7/zrr/ 6
13.. In their reply, said Vijaykumar A. Rathod and the CBI had
questioned the order passed by the Hon'ble Gujarat High Court before
this court. However, this court is not the forum for the same. Hon'ble
Gujarat High Court also held that Accused No.1 D.G. Vanzara had locus-
standi to bring to the notice of the court· the judicial order passed against
Vijaykumar A. Rathod.

14. In view of the above facts, evidence and material on· record
against Vijaykumar A. Rathod, I hold that Accused No.14 Vijaykumar·A.
Rathod has to stand trial as accused. Hence, I pass the following order :-

ORDER
Issue summons for appearance to Vijaykumar A. Rathod
(Accused No.14) to stand fot trial under sections 120-B,
364,365,341,342,302, and201 r/w 120-B of Indian
Penal Code. Summons returnable on 09-06-2015.

(M.B. GOSAVI)
Special Judge for CBI,
Date:- : 26.:05-2015 Gr. Mumbai.

Dictated on : 26-05-2015
Traitscribed on : 26-05-2015
Signed on : 26-05-2015

:;.,
. \
..~~-­

7/:E-/t
IN THE COURT OF SPECIAL JUDGE FOR CBI AT
GREATER BOMBAY

DISCHARGE APPLICATION (Exhibit No.541)

\

m
SESSION CASE NOS.177/2013@ 178/2013
@ 577/2013 and@ 312j2014

N. Balasubramanyam, IPS,
Quarter No.B:...16, Senior Police
Officers Quarters, Pleasant Valley,
Road No. 10-C, Gayathri Hills,
Jubilee Hills, Hyderabad-35. ..Applicant/
(Original Accused No.22)
V/s.

CBI., S.C.B. Mumbai. .. Respondent.

Sr. Counsel Mr. H.H. Ponda with Mr. S.S. Pradhan for Accused No.22.
Mr. B.P Raju, Spl.P.P.for the CBI.
CORAM: The Special Judge
M.B. GOSAVI.
DATE : 13th July, 2015.

Order below Ex.541

1. Accused No.22 N. Balasubramanyam filed this application

under sec.227 of the Code of Criminal Procedure, 1973 claiming discharge
from the prosecution filed by CBI against him, for the offences punishable
under sections 365,368,302,201 r/w 120-B, I.P.C.
/~-,

2
7/YI£-/ 2- '

2. The prosecution case in general is that one Sohrabuddin

Shaikh was a dreaded criminal. He was facing so many cases of extortion,
murder etc. in the State of Gujarat and Rajastan. It is alleged that said
Sohrabuddin Shaik.lt was being used as atool of extortion by some' senior
police officers and politicians in both the States. Later on, his activities
became a headache to them. Hence, then Minister of State (Home),
Gujarat, instructed top police officers of ATS, Gujarat, to search
whereabouts of Sohrabuddin and kill him in encounter.

3. In pursuance to above instructions, team of top police officers

in both the States entered into criminal conspiracy to nab Sohrabuddin in
order to kill him in fake encounter. They took help of another criminal by
name Tulsiram Prajapati to locate the whereabouts of Sohrabuddin. It
was revealed that he was th~n hiding himself in Hyderabad in the State of
Andhra Pradesh. After coming to know that said Sohrabuddin, his wife
Kausarbi and Tulsiram Prajapati were to go to Sangli from Hyderabad on
23-11-2005 in the luxury bus of Sangita Travels, Accused No.1 D.G.
Vanzara, Accused No.2 DrS. Rajkumar Pandian and Accused No.3 M.N.
Dinesh - all senior police officers of ATS, Gujarat - alo~gwith other
policemen from both the States decided to abduct them from the luxury
bus. Accordingly, while the bus was proceeding towards Belgaum, said
accused intercepted the bus. They abducted all the three and took ~hem
to Gujarat. On 25-11-2005 said Sohrabuddin was killed in fake encounter
in Ahmedabad. His wife was also killed secretly. One year thereafter,
Tulsiram Prajapati was also killed in another fake encounter.

4. Initially, the case was investigated by Dy. S.P., ATS, Gujarat,

Mr. M.L. Parmar (Accused No-4). He found that encounter of
Sohrabuddin was genuine. He sent abate summary report to the court of
.;.
 r
3 7/KJt:-(3
Ld. Magistrate. However, Sohrabuddin's brother by name Rubabuddin
Shaikh· suspected some foul play in the encounter of his brother and
disappearance of his sister-in-law Kausarbi. Mr. Rubabuddin sent a
letter to the Hon'ble Chief Justice of India requesting thereiQ. to hold
I

enquiry in the matter. Hon'ble Chief Justice of India directed the

Director General of Police, Gujarat, to hold an enquiry in the matter.

s. The matter was investigated by State CID (Crime), Gujarat.

It was found that Sohrabuddin's encounter was fake. His wife was also
secretly killed by the accused. Hence, CID (Crime) filed charge-sheet
against 13 police officers/policemen, for the offences of abduction,
wrongful confinement and murders etc.

6. Mr. Rubabuddin Shaikh was not satisfied with the above

action. Hence, he filed Writ Petition in the Hon'ble Supreme Court
requesting therein to direct the CBI to investigate the matter afresh.
Meantime, Tulsiram Prajapati was also killed in fake encounter. Hon'ble
Supreme Court directed the CBI to carry further investigation taking into
consideration the larger conspiracy involved in both the encounters.

7· CBI carried further investigation. Upon completion of the

investigation, CBI filed one main charge-sheet and three supplementary
charge-sheets against total 38 accused, including 13 earlier accused. CBI
found involvement of this accused as one of the conspirators. He is
shown to be accused in the third supplementary charge-sheet.

8. The allegations against this particular accused are that in

order to trace the exact location of Sohrabuddin and to know his plan of
"' journey from Hyderabad to Sangli, Accused No.2 Dr S.R. Pandian had
visited Hyderabad. alongwith some other accused. This Accused who was

·-•-..,e·-·----~~--~•· --- --..--..,-,.~.,.,..-~~-.--~··

I
--
4 7/XJC/ ~
then working as Superintendent of Police (for short S.P .), of Prakasham
District in the State of Andhra Pradesh knowingly provided
infrastn1ctural assistance by arranging accommodation for Dr S.R.
Pandian for his stay in IPS Officers Mess at Hyderabad. It isI also alleged
against this accused that he deputed one of his subordinate police officers
i.e. Accused No.23 G.S. Rao, to escort Gujarat police team unofficially. It
is say of prosecution that the accused was well aware of the plan of
Accused No.2 and others to abduct Sohrabuddin for the purpose of his
encounter and, as his part of the conspirators, this accused provided
accommodation to Accused No.2 S.R. Pandian and unofficially deputed
Accused No.23 to accompany-Gujarat police in order to accomplish their
plan to abduct and kill Sohrabuddin.

9· The. accused claimed discharge on the following grounds :-

i) He has been falsely implicated.
ii) He did not knowingly provide accommodation to Accused
No.2 S.R. Pandian in the Police Mess. He was not aware that
Accused No.2 had come to abduct Sohrabuddin and others.
iii) According to the accused, he provided accommodation in
Police Mess to Accused No.2 - a senior police officer from the
State of Gujarat - as and by way of courtesy.
iv) There is absolutely no evidence on record to show that he was
party to the criminal conspiracy and, hence, allowed J\ccused
No.2 to stay in Police Mess so also unofficially directed
Accused No.23 to accompany Gujarat police while they
carried Sohrabuddin·, Kausarbi and Tulsiram Prajapati after
their abduction. He claimed discharge from the case.

10. His application for discharge is resisted by the prosecution

vide say at Ex.541-A. It is contended that accused was aware of the plan
'
 r"''

5 7/:ZJZ/s
of Gujarat police to abduct Sohrabuddin and others from Hyderabad. He
provided to Accused No.2 and other accused accommodation for their
stay in Hyderabad. He was party to the criminal conspiracy as he directed
Accused No.23 - a PSI working under him at Singaraxakonda Police
Station in Prakasham District of Andhra Pradesh - to accompany Gujarat
police while they carried with them Sohrabuddin, Kausarbi and Tulsiram
Prajapati to Ahmedabad after their abduction. There is ample evidence
on record to frame charge against this accused. Hence, his application
may be rejected.

11. I have gone through the evidence on record relied by the

prosecution against this accused. I heard arguments of Ld. Sr. Counsel
Mr. HH Ponda, appearing with Ld. Advocate Mr. S.S. Pradhan. I also
heard arguments of Ld. Sr. Prosecutor Mr. B.P. Raju at length.

12. Ld. Sr. Counsel Mr. Ponda submitted that the allegations
against this accused are that he made arrangement of accommodation in
Police Officers Mess at Hyderabad for Accused N0.2 with the "knowledge"
that Accused No.2 and other police officers had come to Hyderabad to
-
abduct Sohrabuddin. However, there is absolutely no evidence on record
to indicate that the accused was having knowledge of so-called criminal
conspiracy of other accused to abduct Sohrabuddin for the purpose of fake
encounter. Ld. Sr. Counsel further submitted that to sustain the
allegations against the accused, prosecution relied on the statement of
PW-97 E. Radhakrishnaiah. If at all his statement is perused and accepted
as it is, no inference can be drawn that the accused had knowledge that
Acctfsed No.2 and others had come to abduct Sohrabuddin. One police
officer making arrangement for stay in Police Officers Mess for other
Police Officer from a different State is not a crime. There is absolutely no
evidence to frame charge against this accused. Hence, he may be

\
-~''

discharged.
1/:N/{
13. Ld. Sr. Counsel further submitted that Accused No.23
Mr. G.S. Rao was then working as PSI at Singarayakonda Police
I
Station
in Prakasham District, where this accused was SP but, that does not mean
that this accused unofficially directed Accused No.23 to accompany
Gujarat police team after they abducted Sohrabuddin. He pointed out
various Rules in The Andhra Pradesh Police Manual, Part-I, Volume-I,
and submitted that there are atleast 111 police officers in between Accused
No.23 and this accused, who were supposed to supervise the duties and
movement of Accused No.23. In such situation, it cannotbe said that this
accused directed Accused No.23 to accompany Gujarat police team to
Ahmedabad after abduction of Sohrabuddin and others.

14. Ld. Sr. Counsel -also submitted that prosecution relied on

\
the
Call Data Record (CDR) in between this accused and some other accused
but, -only on the basis of CDR, without there being details of actual
conversation, no charge can be framed ..

15. Ld. Sr. Counsel relied on some of the rulings of Hon'ble Apex
Court and Hon'ble Bombay ·High Court explaining the scope of enquiry to
be done by the court while .considering application for discharge u/ s 227,
Cr. P.C. They are:-
1) M/s Century Spinning and ManufactUring Co. Ltd. vs.
State ofMaharashtra ((1972 3 SCC 282)
2) "State of Bihar vs. Ramesh Singh" (1977 Cri. L.J. 1606 (1)
3) "Union of India vs. Prafulla Kumar Samal"
(1979 Cri. L.J. 154(1)
· 4) "Shoraj Singh Ahlawat & Ors. State of U.P. & Anr."
(2013 Cri. L.J. 331)
:;,
·,.
........ ~ .. ....,..........,~,_-,.~~U.•"'"-••.•••• -'••··••·- -· :.•,c:.:J..~<.', '•"'-
; .:. ·-· :_ ~ ·-·--'.: .

:.;:

!~.
'

7
7($/7
To substantiate his argument that only CDR is not enough to frame charge
against the accused, Ld. Sr. Counsel relied on the rulings in the case of:-

I
1) Babubhai Bhimabhai Bokhiria & Anr vs. State of Gujarat &
Ors. ((2014) s sec 568)
2) Order of Hon'ble Bombay High Court in Cri. Application
No.1478 of 2010, dated 29-03-2012 in the case of
Dnyaneshwar Laxman Ware vs. State ofMaharashtra & Anr.
3) Order ofHon'ble Bombay High Court in Cri. Appeal
No.864 of 2012, dated 09-06-2014 in the case of
Salman Sufiyan Shaikh vs. State of Maharashtra.

16. As against this, Ld. Sr. Prosecutor Mr. B.P. Raju submitted
that it is not in dispute t."IJ.at Accused No.22 was then working as SP of
Prakasham District in Andhra Pradesh and, Accused No;23 was PSI at
Singarayakonda Police Station in the same District. There is evidence on
record to show that Accused No.22 unofficially directed Accused No.23 to
accompany Gujarat police team when Sohrabuddin and others were being
taken to Ahmedabad after their abduction. This shows that the Accused
was party to the criminal conspiracy to abduct Sohrabuddin and, further,
he being one of the conspirators made arrangement of stay of Accused
N0.2 at Police Officers Mess at Hyderabad. There is ample evidence on
record to frame charge against this accused. Hence, his application may
be rejected.

17. Ld. Sr. Prosecutor also relied on following judgments to

substantiate his contention about framing of the charge. They are :-
1) "State ofBihar vs. Ramesh Singh" (1977 Cri. L.J. 1606 (1)
2) "State ofKarnataka vs. L. Muniswamy" (1977 Cri. L.J. 1125 (1)
/"~'-

8 7/xr-/t
3) "Union ofindia vs. Prafulla Kumar Samal"
(1979 Cri. L.J. 154(1)
4) "State ofMaharashtra vs. Somnath Thapa"
(1996 Cri.L.J. 2448)
5) "State of Orissa vs. Debe:ridra Nath Padhi"
(AIR 2005 SC 359)
6) "P. Vijayan vs. State ofKerala" (2010 Cri. L.J. 1427)
7) "Shoraj Singh Ahlawat & Qrs. State ofU.P. &Anr."
(2913 Cri. L.J. 331)
8) "Om Prakash vs. State of Jharkhand"
((2o12) 12 sec 72).

18. I have gone through the evidence on record. I have

considered the. submissions made at the bar by Ld. Sr. Counsel Mr. Ponda
and Ld. S~. Prosecutor Mr. Raju.

19. At the outset; it is to be noted that the lawrelating to the

scope of enquiry to be done by the Judge while deciding application for
discharge under sec. 227, Cr. P.C. is now well settled. Ld. Counsel relied
on number of rulings on this aspect. However, it is suffice to take note of
one of the latest ruling of the Hon'ble Supreme Court. In the case of
' '

"Shoraj Singh Ahlawat & Ors. vs. State of U.P. & Anr. (2013 Cri.
L.J. 331) (supra) Hon'ble Supreme Court considered all its earl\er rulings
and succinctly stated the principle oflaw on this point in following words:-

"(1) That the Judge while considering the question offraming the
charges under sec.227 of the Code has the undoubted power
to sift and weigh the evidence for the limited purpose of
finding out whether or not a prima facie case against the
accused has been made out:
(2) Where the materials placed before the Court disclose grave
. suspicion against the accused which has not been properly
explained the Court will bejullyjustified inframing a charge
~~\

9 7/o-/1
and proceeding with the trial.
(3) The test to determine a prima facie case would naturally
depend upon the facts of each case and it is difficult to lay
down a rule of universal application. By and large,
however, if two views are equally possible and the JzLdge is
satisfied that the evidence produced before him while giving
rise to some suspicion but not grave suspicion against the
accused, he will be fully within his right to discharge the
accused.
(4) That in exercising his jurisdiction under sec.227 of the Code,
the Judge which under the present Code is a senior and
experienced Judge cannot act merely as a Post Office or a
mouth-piece of the prosecution, but has to consider the
broad probabilities of the case, the total effect of the
evidence and the documents produced before the Court, any
basic infirmities appearing in the case and so on. This
however does not ·mean that the Judge should make a roving
enquiry into the pros and cons of the matter and weigh the
evidence as if he was conducting a trial"

20. In view of the above, now I proceed to consider the facts of

this case and the evidence on record relied on by the prosecution against
this Accused.

21. To show involvement of this Accused as one of the

conspirators· of the crime, prosecution mainly relied on two facts: (i) that
he made arrangement of stay of Accused No.2 in IPS Mess, Hyderabad. It
is alleged that Accused No.2 had gone to Hyderabad alongwith other
accused in order to abduct Sohrabuddin. It is prosecution case that
because this accused made above arrangement of stay of Accused No.2, he
was aware about the crime to be committed by the other accused. (ii) It is
also alleged that this accused was then SP of Prakasham District. He
directed his subordinate police officer Accused No.23 G.S. Rao to go to
Ahmedabad unofficially alongwith other accused after abduction of
Sohrabuddin and others.

. -- --
---- ---- ..-··- ·-·· .. ·--.-·~"'"""""·..,...""""""" --~~...,......,........,...,....__,...,... ....... ~ .......... ~.,.
r

10
7/:XZ/ta
22. To substantiate the above charge, prosecution relied on the
statements of :
1) PW-90 Naval Kishore,
2) PvV-91 T.D. Vishwanatham,
3) PW94 Stephen Raveendra, IPS,
4) PW-96 G. Shama Rao,
5) PW-106 Gurudayalsingh G. Chaudhary, and
6) PW-3 Tejus Patel.

The prosecution also relied on the CDR of the calls exchanged in between
this accused and Accused No.2 S.R. Pandian and Accused No.1 D.G.
Vanzara in between 20-11-2005 and 25-11-2005. The accused did not
seriously dispute the fact that he made arrangement of stay for Accused
No.2 and othe:t,>policemen from Gujarat at IPS Mess, Hyderabad, during
the. period in question. His ei-planation to this is that he only extended
courtesy to S.R. :Pandian, an IPS Officer from Gujarat, who had come to
Hyderabad, for some undisclosed police mission.

23. Out of the above witnesses, PW-90 Naval Kishore, a Mess

Assistant, stated that in between 21-11-2005. and 23-11-2005 Dr S.R.
Pandian had stayed in IPS Mess, Hyderabad. Dr. S.R. Pandian had
stayed in the Mess on membership "C/o B-58" i.e. of Accused No.22.
PW-91 T.D. Vishwanatham, Mess Manager, corroborated the apove fact.
PW-94 Stephen Raveendra, IPS, Secretary of the Police Officers Mess,
after verification of the Visiting Guest Register stat~d that Mr. S.R.
Pandian had stayed in the Mess in between 21-11-2005 and 23-11-2005 as
a guest of this accused. This fact is further corroborated by PW-96
Shama Rao. In short, there is ample evidence to indicate that Accused
No.2 S.R. Pandian had stayed in IPS Mess at Hyderabad as a guest of this
accused in between 21-11-2005 and 23-11-2005· when he had come to
.,"'(,

.. •·
~c•·,.~·-.~·"•~-~ ·--~--------- .. -·~-~--·
C'·.

11 7).0:/11
Hyderabad for some secret mission. However, real question before this
court is: whether this accused was aware as to what was the secre-t mission
Accused No.2 was to carry and, whether there is evidence on record to
show that with a view to facilitate Accused No.2 to succeed in his secret
I
mission, this accused made arrangement for his stay in IPS Mess? I hold
that there is absolutely no evidence on record to draw such inference that
this accused was aware of the secret mission of Accused No.2, (i.e. to
abduct Sohrabuddin) and ·with a view to assist him in his secret mission,
this accused made arrangement for his residence in IPS Mess, Hyderabad.

24. To impress upon this court to draw the inference that the
accused was aware of the so-called secret mission of Accused No.2,
prosecution relied on the CDR of the phone calls in between this accused,
Accused No.2 and Accused No.1 D.G. Vanzara. At the outset, it is to be
noted that the prosecution relied only on the CDR of the phone calls
exchanged between them. Ld. Sr. Counsel Mr. Ponda rightly submitted
that only phone calls in betweea the accused without the actual
conversation, cannot be relied as evidence against the accused to frame
charge. Ld. Counsel relied on the judgment of the Hon'ble Apex court in
the case of Babubhai Bhimabhai Bokhiria & Anr vs. State of Gujarat &
Ors. ((2014) 5 SCC 568) (supra).

25. I have gone through the said ruling. It is held by the Hon'ble
Supreme Court that :
"The other evidence sought to be relied for summoning the
appellant is the alleged conversation between the appellant
and the accused on and immediately after the day of the
occurrence. But, nothing has come during the course of
trial regarding the content of the conversation and from
caJ: records alone the appellants complicity in the crime does
not surface at all."

'""-~-····.....-.~------··----·- ·--.-~-~-----..,....~-~-- ----·--·

-~-

12
7 /xL/tJ-
Hon'ble Apex court did not consider only calls recorded between the two
accused to be credible evidence without there being details of the .actual
conversation.

26. Ld. Sr. Counsel also relied on two more rulings on the same
point wherein similar view is expressed by Hon'ble B~mbay High Court.
They are: Order in Cri. Application No.1478 of 2010, dated 29-03-2012 in
the case of" Dnyaneshwar Laxman Ware vs. State of jVJaharashtra &
Anr." and Order in Cri. Appeal No.864 of 2012, dated 09-06-2014 in the
case of "Salman Sufiyan Shaikh vs. State of Maharashtra". In the order
in Cri. Application No.1478"-2010, dated 29-03-2012, Hon'ble High Court
has been pleased to observe that:
"Call Data Record by itself is not sufficient to frame any of the
chq.rges levelled against. the applicant There is no any
evidence direct or circumstantial to indicate as to what
conversation had tak~n place between the deceased and the
applicant."

In its ruling in the case of "Salman Sujiya11 Shaikh vs. State of

Maharashtra" (Cri. Appeal No.864 of 2012, Order dated 09-06-2014)
(supra) Hon'ble High Court held that:-
' '
"Thus, it has been held by the Supreme Court that appearance
ofmobile number of the accused person on the mobile
phories of other accused persons or witnesses cannot by itself
be termed as a circumstance alone and no inference can be . I

drawn with a reasonable degree or certainty that the accused

was having knowledge of the plan to attack the parliament
before it happened." .....

In short, it is now well settled position that only call data record is not
substantive evidence to frame charge, without there being details of the
conversation. In this case also, prosecution relied only on the CDR
between this accused and Accused Nos. 1 and 2. Such evidence is not
enough to frame the charge. ·<

.,-..-~-·· ···--~,_.-o..,-..---.·--· ·--~-----~--------~--- --- .-~-~----------·-··-------,.-----·-

 r,
\ .

13
7/XIC-/t]
27. It is also alleged that the Accused was then working as SP of
Prakasham District. He unofficially directed Accused No.23 G.S. Rao to
accompany Accused No.2 and others to Ahmedabad after they abducted
I

Sohrabuddin and others.

28. In this regard, Ld. Sr. Counsel brought to my notice Order

N 0.52.2 of The Andhra Pradesh Police Manual, which states duties of
Sub-Divisional Police Officers or.Assistant Commissioners of Police to
direct supervision of police stations and outposts to ensure efficient,
honest and regular functioning and management of police stations, its
,c
records and staff under his charge. While pointing out the duties of
Superintendent of Police, Ld. Counsel drew the attention of this court to
Order No.n of the said Manual and submitted that Superintendent of
Police is assisted by two Addl. S.P. The Addl. S.P. (L&O) will also be in
charge of Administration and Armed Reserve. The S.P. is also assisted by
Sub-Divisional Police Officer of the rank of ASP /DSP, each in charge of a
sub-division. A Sub-division is further divided into circles headed by
Inspectors of Police. Ld. Counsel submitted that if above hierarchy is
___ taken into consideration, then it can be safely inferred that S.P. has no
direct control over the movements of a PSI attached to a particular police
station. There are almost 110 officers above PSI and each officer is
equally responsible. I have gone through the Rules contained in the said
Manual. It is seen that PSI of a particular police station is not directly
under the control of the S.P. PSI of a particular police station is firstly
answerable to PI in charge of the police station, then to Circle Inspector
and lastly to the S.P. of District. Here, in :fuis case, prosecution did not
record statement of any other officer to corroborate its allegation that this
accused had in fact directed Accused No.23 to accompany Accused No.2
and other police officers of Gujarat. There is absolutely no evidence on

-···-..... -......----~~-~--- -~----·-·· ·-------- .... --·

~~
f ,· '
I ')

14

record to hold accordingly.

7/KJc 114
29. In short, there is evidence on record to show that Accused
No.2 had stayed in IPS Officers Mess at Hyderabad during
I
the -period in
question. He stayed there as guest of this accused but, the evidence is not
at all sufficient to draw an inference that this accused had knowledge of
the plan of Accused No.2 and others to abduct Sohrabuddin. There is no
evidence on record to draw inference that in order to facilitate- Accused
No.2 in achieving his above plan, this accused had made arrangement of
his stay in IPS Mess. On the other hand, accused gave a plausible
explanation that he being IPS officer, extended courtesy to Accused No.2
who was another IPS officer from a different State and out of that
courtesy, he made arrangement for his stay in IPS Mess, Hyderabad. It is
made clear by the Hori'ble Supreme Court in its ruling referred above that
"where the materials placed before the Court disclose grave StJSpicion
against the accused which has not been properly explained the Court ·will
be fully justified in framing a charge and proceeding with the trial" (Union
of India vs. Prafulla Kumar Samal & Anr.) There is no evidence on record
disclosing grave suspicion against the accused about his involvement in
this crime as one of the conspirators. •Moreover, the accused had
adequately explained as to why he made arrangement of stay of Accused
No.2 in IPS Mess, Hyderahad.

30. In short, the evidence and material on record is not sufficient

to proceed against this accused. No prima facie _case is made out to
frame charge against him. Hence, I proceed to pass the following order :

ORDER
The Application is ~Bowed.

Accused No.22 N. Balasubramanyam is discharged from

""'-.....
 r"
'-'

7 /_g]T-( 'r
15

the case for the offences punishable under sections

365, 368,302, 201 r/w 120-B, I.P.C.
His bail bond to remain in force for a further period
of six months from today, as per section 437-A,
Cr.P.C.
He to execute fresh PR Bond of Rs.ls,oooj-
Application stands disposed of.

(M.B. GOSAVI)
Special Judge for CBI,
Date:- : 1 q,-07-201"\
tJ' , ......
Gr. Mumbai.
"I affirm that the contents ofthis PDF Order
are the sante, word to wo1·d, as per the
original Order."

. M.B. GOSAVI, Spl. Judge (C.R. No.49)

Mr. K. Vijaykumar (S.G. Stenographer)
Dictated on : 13-07-2015
Transcribed on : 14-07-2015
Signed on : 14-07-2015
Uploaded on : 14-07-2015

---- ----- -------,

,/...--..,

7/Fil/1
Order below Exh.606. 1

IN THE COURT OF SPECIAL JUDGE FOR CBI AT

GREATER BOMBAY
DISCHARGE APPLICATION
(Exhibit No. 6o6)
IN
SESSION CASE NOS.177 OF 2013 @ 178 OF 2013
@ 577 OF 2013 and @ 312 OF2014.

1. N arendra Kantilal Amin. } ...... Applicant/Accused

No.12.
V/s
Central Bureau of Investigation, }
Special Crime Branch (SCB), Mumbai. } Respondents.

Coram : H.H.The Additional Sessions ..Judge

Shri.M. B. Gosavi (C.R.No.49)
Date : 18/08/2016.
Appearance:-
Mr.Dinesh Tiwari a/w Swapnil Ambure, M. Dey, Raghavendra A.M.
i/b Dinesh Tiwari & Association, Ld. advocates for the applicant/
accused No.12.
Mr. B.P. Raju, Ld.SPP for the CBI/Respondent.

ORDER BELOW EXHIBIT 606.

Accused No. 12-Narendra Kantilal Amin filed this application
for discharge from the prosecution vide section 227 of Code of Criminal
Procedure. He has been ·charge-sheeted by the CBI for the offences
punishable under section 120-B, 302, 364-A, 201 of Indian Penal Code.

2. The prosecution case in general is that, one Sohrabuddin

Sheikh was a dreaded criminal. He was involved in so many criminal cases
of extortion, murder, carrying arms etc. He was wanted accused in one
 ~
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7/Zff-/2--
Order below Exb.606. 2

case registered at Navrangpura police station, Ahmadabad for the offences

under section 120-B, 121-A, 186, 154 ofiPC r.w. 25 of Arms Act. He was
also wanted in case of murder of one murder of Hamid J_.ala for which
crime vide CR No.214j2004 was registered at Hathipol police station,
Udaipur. Hence, police from both the States Gujarat and Rajasthan were
in search of him.

3- It is alleged that, team of top police officers in both the States

along with some political leaders entered into criminal conspiracy to
eliminate said Sohrabuddin' instead of arresting him. In pursuance thereto
accused No. 1 D.G. Vanzara, then Dy. Director General; ATS, and some
senior police officers from State of Rajasthan were in search of
. .

whereabquts 6fsohrabuddin~ They. came to know that said Sohrabuddin

had gone~t~ _Hydrabad, State of Andhra Pradesh in order to celebrate Eid
with his brother Kalimuddin. Said Sohrabuddin was to go tp Sangli with
his wife on 23/11/2005 by Luxury Bus of Sangeeta travels:.

4- It is further alleged that the accused from. team of police went

to Hydrabad in order to abduct said ·Sohrabuddin for the purpose of
eliminating. him.
'·
Accordingly on 23/11/2005 while Sohrabuddin was ·
travelling in the Bus along with his wife Kausarbi and Tulsiram Prajapati
the bus was intercepted by t~e accused near Zahitabad at about 12.30 mid
night. Said Sohrabuddin, Kausarbi and Tulsiram Prajapati were made to
get down from the Bus. They were brought to Ahmadabad. Sohrabuddin
and his wife Kausarbi were illegally detained at Dish Farm House whereas,
Tulsiram Prajapati was taken to Udaipur by Rajasthan Police. ·

5· On 25/11/2005 early in the morning, Sohrabuddin was killed

'·

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"7/Er/3
Order below Exh.606. 3

in state managed encounter near Vishala Circle Ahmadabad. His wife

Kausarbi was secretly killed. Her body was disposed off by burning in river
bed near village Illol. One year after encounter of Sohrabpddin, Tulsiram
Prajapati was also killed near Ambaji on border of State of Gujarat and
Rajasthan.

6. Rubabuddin Sheikh- brother of slain Sohrabuddin sent

complaint application to Hon'ble Chief Justice of India requesting therein
to enquir~ about fake encounter of his brother and disappearance of
Kausarbi. Hon'ble Chief Justice directed then DIG Gujarat to inquire into
the matter. Accordingly CID Crime, Gujarat made inquiry and investigated
the complaint. Initially the charge-sheet against 13 police officers, police
men came to be filed. However, Mr.Rubabuddin Sheikh was not satisfied
with the action taken by CID Crime, Gujarat. He filed Writ Petition in
Hon'ble Supreme Court bearing No.6/2007; Hon'ble Supreme Court while
deciding said Writ Petition directt:d CBI to carry further investigation.
Accordingly, CBI investigated the matter and filed one main charge-sheet
and three supplementary charge-sheets against the accused wherein this
accused is shown as accused No. 12.

7. As far as this accused is concerned, the allegations are that,

after Kausarbi was secretly killed at Arham Farm House in between
25/11/2005 to 28/11/2005, her dead body was taken to village Illol on
28jnj2005 at 6.00 am. The dead body was set on fire at about 6.30 pm.
by accused No.1 D.G. Vanzara. At that point of time this accused was
present there. Hence, he was arraigned as one of the conspirators of
committing crime.
 -~~ ••-~~~. ...,.___~.-- .......... 4.• ~

.. ....
·-·

···-· -

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7/zg:./t;
Order below Exh.606. 4

8. The accused claimed discharge from the prosecution on the

ground that if the prosecution case is divided in four parts relating to main
incident, then there is no evidence against him showing his ~resence at the
spot, as far as three incidents are concerned. He was shown to be present
at the spot where dead body of Kausarbi was allegedly burnt. It is also
alleged that this accused was in touch with Mr. Amit Shah on phone. It
was prosecution case that Mr. Amit Shah was main conspirator. However,
this court discharged Mr. Shah from the prosecution and that order
reached finality and hence, evidence relied on by prosecution showing that
t..~is accused was in contact' with Mr. Shah is of no use to prosecute him.
There is no prosecutable material on record against this accused. Hence,
he may be discharged.

9. The application is resisted by the prosecutio~ vide say

Exh.6o6-A. It is contended that the witness P.W, 5 Nathoba Jadeja,
. ,.,
P.W. \

162 V.A. Rathod , andP.W. 25 Shivsing Vaghela stated in their statements

the role of this accused in this crime.· The prosecution also relied on the
call data·. record of this accused. The accused w:as pot working in ATS
branch of Gujarat police but he was then ACP :crime, Ahmadabad. In such
situation it .was not necessary for him to attend funeral of Kausarbi.
Though Mr. Amit Shah has been discharged, his case stands on different
footing and hence, accused cannot get benefit of that order of discha,rge.
I .
There is sufficient evidence on record to frame charge against this accused
and hence, the application may be rejected.

10. I heard Ld. counsel Mr. Tiwari for the accused and Ld. Sr.
prosecutor Mr. Raju at length. I have gone through evidence on record
relied on by the'_pt:osecution against this accused.

""··
,r:---,
(

Order below Exh.606. 5

7/:iJ!L/..r
11. Ld. advocate Mr. Tiwari submitted that the prosecution case
can be unfolded in four parts;
i) Abduction of So:hrabuddin, Kausarbi ~nd Tulsiram
Prajapati from Luxury Bus and bringing them to Ahmadabad.
ii) Encounter of Sohrabuddin and secretly killing of his wife
Kausarbi.
iii) Disposal of dead body of Kausarbi by burning.
iv) Encounter of Tulsiram Prajapati.
Out of above three incidents there is no evidence to indicate
that this accused was concerned with abduction theory set up by the
prosecution. There is no evidence against this accused that he took part in
encounter of Sohrabuddin or that he killed Kausarbi. There is no evidence
to show that he was part of police team who encountered Tulsiram .
Prajapati. Ld. counsel further submitted that the prosecution case against
the accused is that he was present at the spot where Kausarbi's body was
burnt and disposed of. This is only evidence against him with the
prosecution. Ld. advocate Mr. Tiwari further submitted that to sustain
above allegations against the accused, the prosecution mainly relied on
statement ofP.W. 105 Nathoba Jadeja. If we peruse statement ofNathoba
J adeja minutely, what could be made out is that along with other police
officer Dy. S.P. Amiii Saheb had also come there. He submitted that
Nathoba's statement required corroboration of some other evidence
because Nathoba is accomplice. He had taken part in abduction of
Sohrabuddin, Praj~pati and Kausarbi. Not only that to hide identity of
vehicle by which Sohrabuddin was abducted, he had changed its number
plate. Now Nathoba is turning around and implicating all police men only
to save his skin.
(~'

7/~l(
Order below Exh.606. 6

12. Ld. advocate further submitted that the prosecution also

relied on statement of one V.A. Rathod. But now Mr. Rathod is an accused
in this case. His state:rp.ent is not admissible and cannot 1be relied on.
According to him if at all it is held that, this accused acted as mute
spectacles when Kausarbi's body was disposed of, it is not enough to ask
him to under go ordeal of trial 'for such serious offences. Call data record
in between this accused and Mr. Amit Shah does not take further
prosecution case at all for two reasons; 1) that Amit Shah is already
discharged and 2) there are no details of actual conversatio:1 in between
the.m. 'On the basis of suchshoddy.evidence the charge cannot be framed
agaipst this accused. He may be discharged.

13. AS /against this Ld. Sr.· Prosecutor Mr. B.P. Raju submitted
that J.n 2003 this accused had sought mobile call connection in the name
of P.W. 154 Sajnay Devalekar. It shows tendency of this accused. The
accused was officer attached to Crime department and not to ATS. Then
_why he attended funeral of Kausarbi. ·It creates strong involvement that
the accused was one of the conspirators. Hence, application for discharge
' • 1 •

may be rejected~ Ld. Sr. Prosecutor relied ori number of rulings on this
subject. They ~re as follow ;
1) "State ofBihar vfs Ramesh Singh" (1977 Cri. L.J.
1606(1));
2) "State ofKarnataka 'vfs L. Muniswamy & Ors." (1977
Cri.L.J. 1125(1);
3) "Union of India vfs Pra:fulla Kumar Samal" (1979
Cri.L.J. 154 (1);
4) "State ofMaharashtra vfs Somnath Thapa" (1996
Cri.L.J. 2448)
·.::......
\

-----~----·-----·•··• -·~--=--~•._w_,..,,,.,.~,,.-,-.~--..,.,.._-,,,o~·-"'-'f~.-.·:•
G'-

Order below Exh.606. 7

7(XE-/7
5) "State of Orissa vfs Debendra Nath Padhi" (AIR 2005
sc 359)
6) "P. Vijayan vfs State ofKerala" (201o Cri., L.J. 1427)
7) "Rukmani Narvekar vfs Vijaya Satardekar (AIR 2009
sc 1013)
8) "Shoraj Singh Ahlawat & Ors. vfs State ofU.P. & Ors.
(2013 Cri. L.J. 331)

14. I have considered the evidence on record and submissions

made at the bar by both the Ld. counsel.

15. The accused is brought in this prosecution only on the basis of

allegation that he found present at the spot where Kausarbi's dead body
was disposed of by burning. 'Whether this allegation is enough to frame
charge against this accused for the offences punishable under section 120-
B, 302, 201 ofi.P.C. is the question before the court.

16. Before considering material on record relied on by the

prosecution for its insistence of framing charge against this accused, it
would be proper to look in to the guidelines issued by Hon'ble Apex Court
as to what is required to be seen by the court while considering the
application for discharge.

17. In case of Shoraj Singh Ahlawant and others Vs. State

of UP (2013 Cr. LJ 331), the Hon'ble Apex Court took note of almost all
rulings on this subject and succinctly stated the following principles as
guidelines.
" To the same effect is the decision of
 7!~1~
Order below Exb.606. 8

this Court in Union of India Vs. Prafulla

Kumar Samai and Anr. (1979) 3 SCC 4: (AIR
1979 SC 366), where this Court was
examining a similar question in the conte:(,t of
Section 227 of the Code of Criminal
Procedure. The legal position was summed up
asunder: ·
Thus, on a consideration of the
authorities' mentioned above, the following
pr{nciples emerge:
(1) That the Judge while
considering the question of framing the
charges under Section 227of the c~de has the
undoubted, po711er t sift and weigh the
evidence for the ~iiuited purpose of fin(iing
out whether or not a prima faete cae against
the accused has been made out :
(2) Where the materials placed
before the Court. disclose grave suspicion
against the ' a~cused which has not been
properly explained the Court will be fully .
justified in framing a charge and proceeding
with the trial.
(3) The test to determine a prima
facie case would naturally depend upon the ·
facts· of each case and it is difficult to lay
down a rule ofuniversal application·: By and
large however if two views are equally
possible and the Judg~ iS sqtisfied that the
evidence produced before him while giving
rise to~ome suspicion but not grave suspicion
against·the accused, he will be .fully within his 1
right to discharge Jhe accused.
(4) That in exercising his
jurisdiction under Section 227of the (Jpde the
Judge which under the present Code is a
senior and experienced Judge cannot act
merely as a Post Office or a mouth-piece of
the prosecution, but has to consider the broad
probabilities of the case, the total effect of the
evidence and the documents produced before
the Court, any basic infirmities appearing int
·-.~~-
 ~~
I

7/XEL ~~
Order below Exb.606. 9

he case and so on. This however does not

mean that the Judge should make a roving
enquiry into the pros and cons of the matter
and weigh the evidence as if he U{as
conducting a trial."

18. In the light of above pronouncement I proceed to consider

prosecution evidence on record against the accused.

19. As noted above only allegation against the accused that, he

was present when Kausarbi's dead body was disposed of. To sustain this
n llan-n-hr..-n
0..1.1\....f,ClL.lV.I.l.'
,.,. ..,....,a.nnt~ro-n .. al~a.rl r..n f-ha "+~f-aTnan-k ,..,..f """"" D ... AT ~ rH:· 1\T ~+"hnh~
PI.V.::J'-'\,U.L.lVI..l .1.'-'.l.l\,.,U V.l..l. Ll..l.\,., OLU.L"".I..I..l'-- .I.L VJ.. V.l..l.\,., .I..,.., • ..1..'-'l.J .... ,U.L.I..I.VUU.

Jadeja and nothing else. Mr. Jadeja stated in this statement that,
" We reached fllol at about 10 to 11 hrs. at night. Chauhan
Saheb and Rathod Saheb were also with him in Tempo at Illol. At village
Illol in bay of river the tempo stuck in the sand and while pushing to it
tempo stuck deeply. Tempo could not be taken out. Hence~ wood were
unloaded there only by Chobey Saheb~ Chauhan Saheb~ Rathod Saheb
and me. At that time Vanzara Saheb ~Rajkumar Pandian Saheb~ Dy. S.P..
Amin Saheb had also arrived. The wood was staked. Chobey Saheb
brought jeep near it. There was one dead body in the jeep which was
brought out by Chobey Saheb, Chauhan Saheb, Rathod Saheb and myself
and kept on staked wood. Some other wood was also kept on it and as I
remember dead body was burnt by Vanjara Saheb."

20. Perusal of above portion of his statement, it clearly shows that

this accused did not take part in bringing wood or the dead body or
setting the dead body on fire. In my considered opinion only because the
accused was pre[ ent there is not enough material to frame charge against
him under section 120-B, 302, 201 of Indian Penal Code without there

........ ~-~---·~ _____ ...... ~.---~-....... - ···-·--~-----. __ .... ·-· __,__________

.r~

7(-xrr:Jtc
Order below Exh.606. 10

being any other evidence on record to show that he was part of criminal
conspiracy. :Moreover, it is a big question before this court as to how
much reliance can be placed on the statement of P.W. 105 Nathoba
I
Jadeja
who stated that he had brought dead body at the spot and it was kept on
pyre. It appears that he is accomplice. Moreover, it is a matter of record
that PW 105 Nathoba Jadeja immediately after his statement .was
recorded by CBI had stated before CBI Court at Ahmadabad that, he did
not state anything above. His statement was recorded under pressure by
CBI. He retracted from his statement. n0t once but, at three different
""""~~;i,n<;:
V,.,_.'-' ..... "-'.a.."'-'.._ .... ..._,.

21. Even 'Otherwise if his statement is accepted as it stands, still it

is not enough to draw inference that as the accused was present at the spot
where Kausarbi's dead body was disposed of, being one of the conspirators
and had taken active part in commission of crime. It has been. consistently
held by Apex Court that material on record should be of a such quality that
strong suspicion about involvement of the accused in the crime can be
raised on the basis of evidence on record, in following words;
" These decisions show : that for the
purpose of determining lJ!hether there is
sufficient ground jot proceeding against an
1
accused the COurt possesses a comparatively
wider discretion in the exercise of which it can
det~rmine the question whether the material '
on the record, if un- ·rebutted, is such on the
basis of which a· conviction can be said
reasonably to be possible." (1977 CRl.L.J.
1125S.C.)

22. If above yardstick is applied to the facts before me wherein it

is stated that the accused found present at the spot where Kausarbi's dead

·~...
(>

'
7/XV~/tl
Order below Exh.606. 1I

·body was disposed off then, in my considered opinion there is no sufficient

evidence to frame charge against the accused. Hence, I proceed to pass the
following order.
ORDER
1) The application Exh. 6o6 under
section 227 of Cri. P .C. preferred by accused
No.12 for discharging him from Sessions
Case Nos. 177/2013, 178/2013, 577/2013
and 312j2014 is allowed.
2) The accused No.12-Narendra
Kantilal Amin is discharged from the
prosecution for the offences punishable
under section 120-B, 302, 201, 364-A of
Indian Penal Code.
3) His bail bond. to continue for
further period of Six months as per section
437-AofCr. P.C.

(M.B. GOSAVI)
Special Judge for CBI,
Date:- 18-08-2015 . Gr.Mumbai.

Dictated en : 18-08-2016
Transcribed on : 19-08-2016
Signed on

-•:-o-~·"f'·"""""""'~r.••;,.,.,..,,.,-.~ ......,.._,,_,,.........,-,
.. ~

7 /JJC/17~-
Order below Exh.606. 12

" I affirm that the contents of this PDF file judgment

are the same, word to word, as per the originai judgment"
Name of Steno with Post :Mrs. Samata 5. Sarnobat.
Stenographer (H.G.)
Name of the Judge (with Court No.) : Shri M. B. Gosavi C.R.No.49
Date of pronouncement of judgment : 18/08/2016
Judgment signed by the P.O. on :19/08/2016
Judgment uploaded on : 20/08/2016

/
.:.....
/-~,

Order below Exh.562. 1 7/Eif--ft

IN THE COURT OF SPECIAL JUDGE FOR CBI AT
GREATERBO:rdBAY
DISCHARGE APPLICATION
(Exhibit No. 562)
IN
SESSION CASE NOS.177 OF 2013 @ 178 OF 2013
@ 577 OF 2013 and @ 312 OF2014.

1.RajkumarS.Mr. Pandiyan, }
Aged years, Occupation :ADGP, }
having address at: B/31, Tulsi Rowhouse, }
Satellite Road, Ahmadabad. } ..... .Applicant/Accused -"
} No.2.
V/s
Central Bureau of Investigation, }
Special Crime Branch (SCB), Mumbai. } Respondents.

Coram : H.H. The Additional Sessions Judge

Shri.M. B. Gosavi (C.R.No.49)
Date : 25/08/2016.

Appearance:-
Mr. Girish Kulkarni & Mr. Amol Parekh Ld. advocates for the
applicant/ accused No.2.
Mr. B.P. Raju, Ld.SPP for the CBI/Respondent.

ORDER BELOW EXHIBIT 562.

Accused No. 2-Rajkumar S. Pandiyan filed this application for
dropping of the prosecution for want ofsanction under section 197 of Cr.
P.C. from the State Government contending inter-alia that whatever acts
or omissions he allegedly committed were committed by him while
discharging his official duties as Superintendent of Police, ATS,
Ahmadabad.
,..--.,
( '

Order belo·w Exh.562. 2

7/rvte/~
2. The accused also claims discharge from the prosecution under
section 227 of Cr. P.C. stating that upon considering evidence and material
on record as relied on by the prosecution, the same is no~ sufficient to
frame the charge against him for the offences punishable under section
120-B, 364-A, 302, 201 r.w. section 120-B of Indian Penal Code. He
further contended that even otherwise the court at the first instance ought
not to have taken cognizance of the case filed by CID Crime Gujarat and
CBI Mumbai in view of section 161-~ of Bombay Police Act because the
alleged offence is said to have been committed in the year 2005 whereas,
the charge-sheet came to be filed i;n 2010. Inf act a·s per section 161-A of
Bombay Police Act, the court dannot take cognizance of the offence
allegedly committed by police officer one year after the date of offe~~~-

3- In order to consider and appreciate the contentions of the

accused it would be proper to take note of the prosecution case.
One . Sohrabuddin Sheikh was a dreaded criminal. He was
involved in so many cases of murder, abductions, extortion, carrying fire
arms etc. then pending in the various court of State of. Gujarat and State of
Rajasthan. He was shown to be absconding accused in one crime
registered against him in Nawangpur~ Police Station, Ahmadabad. He
was also absconding accused in Hamid Lala murder case registered at
Hathipole Police Station, Ud1;1ipur in the State of Rajasthan; Hence, police
from both the States were searching him.

4· It is further alleged that some of the top police officers and

politicians in both the States entered into criminal conspiracy to nab said
Sohrabuddin and to eliminate .him. In pursuance thereto this accused
along with other· senior police officers formed a team of policemen from

'
p,

7(~/3
Order below Exh.562. 3

both the States to search Sohrabuddin.

s. It was revealed to them that Sohrabuddin had then gone to

Hyderabad with his wife Kausarbi to celebrate Eid with his brother
Kalimuddin. He was to go back to Sangli from Hydrabad on 22/11/2005

by Luxury Bus run by Sangeeta Travels, Ahmadabad. It was decided to

abduct him from the said Bus. Accordingly, the accused and other police
officers/policemen went to Hydrabad. On 22/11/2005 at 11.30 pm. this
accused and others intercepted the said Bus. on the highway near
Zahirabad. Sohrabuddin, Kausarbi and one more person claimed to be
Tulsiram Prajapati were taken in custody. They were brought to Bharuch
in two vehicles. From Bharuch Sohrabuddin and Kausarbi were taken
towards Ahmadabad whereas, Tulsiram Prajapati was taken to Udaipur by
Rajasthan Police. Sohrabuddin and Kausarbi were illegally detained
firstly in Disha Farm House at Ahmadabad and thereafter, in Arhan Farm
House.

6. On 25/11/2005 at 3.00 am. only Sohrabuddin was taken

towards Vishala Circle, Ahmadabad. He was killed in fake encounter.
Thereafter, Kausarbi was also secretly killed. Her dead body was burnt Ol}
the river bed near village Illol. One year thereafter, on 27/11/2006

Tulsiram Prajapati was also killed in a stage managed encounter near

. Sarhad Chapri on border of State of Gujarat and :Rajasthan.

7· On the same day Accu8ed No.7~Abdul Rehman filed

complaint with CID Crime,Gujarat stating that while Sohrabuddin-the
"~

absconding accused was coming from Surat by highway, he was asked to

surrender but, he fired on the policemen who were to apprehend him. In
 f'"C''.
I :

Order below Exh.562. 4

retaliation the police opened fire against him in which said Sohrabuddin
died. That matter was investigated by accused No-4-M.L. Parmar. He
opined that it was a genuine encounter and filed abate summary report.

8. Rubabuddin Sheikh- brother of slain Sohrabuddin suspected

some foul play. He sent a letter to the Hon'ble Chief Justice· of India
requesting to enquire in the matter of the death of his brother and
disappearance of Kausarbi. Hon'ble Chief Justice fmwarded that
complaint to Director General of Police, Gujarat with direction to enquire
into the allegations and do the needful. The Director General of Police,
Gujarat asked CID Crime Gujarat to re-investigate thematter. Accordingly
the matter was re-investigated 'and charge'-sheet came to be file~-~gainst
13 police officers including this accused under section 120-B, 364-A, 302,
201 ofJ.P.C.

9· Said Rubabuddin was not satisfied with above course of

action. He filed. a Writ Petition bearing No. 6/2007 in the Hon'ble
Supreme Court with a request to direct CBI to re.,.investigate the case.
Meantime, Tulsirani Prajapati was also killed in an encounter. His mother
Nannadab~i had also filed a Writ Petition in Supreme Court. In order to
L
have fair investigation Hon'ble Supreine Court directed CBI Mumbai, to
carry further investigation after taking into consideration' aspect of a
· larger conspiracy in all three killings. Accordingly, CBI investigated the
matter and filed one main charge"'"sheet and three supplem'entary charge-
. sheets against total38 a~cused. The accused are senior IPS officers, other
police offic~rs, policemen, some politicians and some civilians.

10. As the Home Minister for the Sate Mr. Amit Shah and some
-;__

---------~--- -----··---~---------·-· __ .'

~-----~.._......,_.,.,.,..,.......,,.,,_,._._,_,--
 r-c.
•' ,·

7/xm-(s
Order below Exh.562. 5

senior police officers were shown to be involved in the case,. Hon'ble

Supreme Court transferred- the trial to this court from CBI Court at
A..~madabad in order to have fair trial.

11. Dr. R. S. Pandian-accused No.2,- the present applicant is

prosecuted in this case as CBI found his involvement in committing crime
in following manner.
i) It is alleged that Mr. Pandian arranged a Qualise jeep
bearing No.GJ-25-A-7007 for policemen for going to Hydra bad in order to
bring Sohrabuddin and others.
ii) Mr. Pandian took part in abduction of Sohrabuddin and
others and personally brought them to Ahmadabad.
iii) Mr. Pandian was found present at the spot where
Sohrabuddin was encountered.
iv) Mr. Pandian was found present at the spot where
Kausarbi's dead body was disposed of by burning.
v) Mr. Pandian gave information to accused No. 3 M.N.
Dinesh that Thlsiram Prajapati- then escaped offender was spotted in
Banaskanta District in Gujarat and Mr. Dinesh passed on this information
to Mr. Sudhir Joshi, DCP Udaipur. Said Mr. Joshi redirected said
information to then S.P. Banaskatha.

12. The applicant/accused Mr.. Pandian daims that the court

· ought not to have taken cognizance of the alleged .offence against him
without sanction from the State Government
.. .
under section 197 Cr.P.C.
because, he had gone to Hydrabad for official visit to inspect site at Begum
Pet , Hydrabad where there was bomb blast by suicide bomber. On
23/11/2005 he came back to Ahmadabad fro~ Hydrabad by international
·c

~--~---~ ---·-·----· -~~------~---~~-~-~~---~---~~~~---·--·--

r--.
!

7/~/t
Order below Exh.562. 6

flight of Indian Airlines which had left airport at 7.00 pm. In such
situation the prosecution case that from night on 22/11/2005 till evening
on 23/11/2005 he was in Qualise Jeep in which abduc\ed Sohrabuddin
and others were brought to Ahmadabad is false and baseless. According to
him only P.W.105- Nathuba Jadeja stated that he saw 1\tlr. Pandian at the
site after encounter of Sobrabuddin and secopdly at the spot where
Kausarbi's dead body was disposed off. But other two prosecution witness
i.e. P .W. 107 Laljibhai Rathod, eye witness of encounter of Sohrabuddin
and Bhailal Rathod did not state that Mr. Pandian was at the spot.

13. As far as the allegations that he gave message about escaped

prisoner Tulsi1Clm Prajapati, evidence relied on by prosecution is hear say
in nature and nothing was wrong· on his part if at all he gave any message
to any. other police officer about an escape of prisoners. He also CQp.tended
that he did not arrange Qualise jeep bearing No.GJ-25-A-7007 to go to
Hydrabad; ·In fact, there is evidence .on record to show that said J ~ep was
lying in authorized service center of Toyota at Ahmadabad prior to
24/11/2005., Moreover, none of the prosecution witnesses stated that Jeep
No.GJ 25-A-7007 was used for abduction.

14. According to Mr; Pandian the evidence collected by CID

Crime Gujarat and then by CBI during further investigatioN is not at all
enough to charge him for serious offences under section 120-B, 364-A,
302, 201 l.P,C. He was then Superintendent of Police ATS, Ahmadabad.
His services were not terminable without leave of the State Government.
Even all allegations against him are accepted as they stand, still he was
acting in discharge of his official dnty as a police officer. Hence, he could·
not have been prosecuted without sanction of the Government. For all
·{;_......
~-,

7lxl!fTJ7
Order below Exh.562. 7

these reasons he claims that he either may be discharged from the

prosecution under section 227 of Cr. P.C. or the prosecution case against
him may be dropped for waa'"lt of sanction under section 197 Cr. P.C ..

15. His application for discharge and dropping of the prosecution

for want of sanction is r~sisted by the prosecution vide say at Exh.562-A.
It is contended that there is a direct evidence against his accused showing
his involvement in crime. He arranged the vehicle to police party to go to
Hydrabad and bring Sohrabuddin after his abduction. He had travelled by
the same jeep in which Sohrabuddin, Kausarbi and Tulsiram Prajapati
were brought to Ahmadabad. He was present at the spot after encounter of
Sohrabuddin and also at the spot where dead body of Kausarbi was
disposed off. He gave information to Rajasthan police about whereabouts
of Tulsiram Prajapati. He was in touch with other police officers, who are
main accused in this case. CDR are available to establish this fact. There is
ample evidence on record to show his involvement in this serious crime.
The evidence on record is enough to frame charge against him. In view of
quality of evidence as appear against him, he is not entitled for the
protection under section 197 Cr. P.C. Hence, ,his application may be
rejected.

16. To substantiate its case the prosecution relied on number of

witnesses. They are : PW 1-Rubabuddin Shaikh , PW ~2.: Nayamuddin
Shaikh, PW 66:- Ramanbhai Patel, PW 67- Dashrathb:ttai Patel, PW 79-
Noor Mohd. Grgai, PW 8o-Mizban , PW 65-Mohd. Naimuddin, PW 88-
. Islalvat Arvind, PW 89-Salim Begam, PW 90 NawalKishore, PW 91- T.D.
Vishvanath, PW 92- L.K Shinde, PW 93-Anil Kumar, PW 9s- · Rajiv
Trivedi, PW 96~ G. Shama Rao, PW 97- Radhkrishna, PW 98-Simanta
,~ ..

7/KffC/?.
Order below Exh.562. 8

Bardoloi, PW 99- M.S. Shivraman, PW 100- Sharad Apte, PW 101-Amit

Apte, PW 104-Prakash Satappa Bandivadekar, PW 105-Nathuba Jadeja,
PW 106 Gurudayal Singh, PvV 107-Bhailal Rathod, PW 144-Premaji Cham,
PW i45-Madhubhai Meghajibhai Bandiyawala, PW 146 -Nathabhai
Malade, PW 147-anaj Nagabhai Odedara, PW 148- Chandrasinh Rajput,
PW 150-Dineshbhai Patel, PW 193-Zahid Kadri, PW 194- Murtaza, Khan,
PW 3-Tajus Patel, PW 16-Rajesh Mishra, PW 58-Sudhir Joshi, PW 25-
Mohammad Jaffar, PW 246-Jiluba Waghela, PW 247-Rajan Priyadarshini,
PW 251-Shashi Bhushan Shah, PW 252- Parag Vyas, PW 253- Sudhir
Sinha and PW 254-Arunkumar Sharma.

17. I have gone through the evidence on record and state.m~nt of

allwitnes~es.J·lieard argument of Ld. advocate Mr. Girish KulkarnLfor the
applicant/accused and Ld. Sr. Prosecutor Mr. B.P. Raju for CBl.atleggth.
'•"

18. Ld. advocate Mr. Kulkarni submitted that main alleg;tions.

·. against Mr. Pandiyan are· that he arranged the Qualise Jeep for policemen
to go to Hydrabad. He took part in abduction of Sohrabuddin and brought
him to Ahmadabad. He was present at the spot after encounter of
Sohrabuddin and at the spot where Kausarbi's dead body was disposed of.
·- .....
Later on accused N.H.Dhabi, Abdul Rehman and Shyam Singh killed
Sohrabuddin in a fake encounter. Is is also alleged that this accused
assisted other acclised in disposing Kausarbi's dead body. So question
before this court would be whether this accused had gone to Hyderabad <;>n
22/11/2005 and had brought Sohrabuddin back to Ahmadabad on
23/11/2005. He pointed out that, allegations are that, accused arranged
jeep bearing No. GJ-25-A-7007 to police team to go to Hyderabad, but CBI
itself collected
. evidence which
. shows that same vehicle was then lying in
'<.....
(----:"'

Order below Exh.562. 9

7 (XHL/7

the authorized service center of Toyota in Ahmadabad between the above

period. Moreover, there is an entry in visitor's register kept in the CRPF
hostel, Hyderabad to show that Mr. Pandiyan had arrived by the car
bearing No. AP 22-K-4767 at 9.30 p.m. on 21/11/2005. There is also
statement of one Mr. Laxmikant Shinde ACP stating that in November
2005 Mr. Pandiyan was there with him at blast site Begum Pet,
Hyderabad. The evidence collected by CBI itself rules out possibility of two
alleged facts that Mr. Pandiyan arranged vehicle No.GJ25-7007 for the
team to go to Hyderabad in order to abduct Sohrabuddin. Secondly, Mr.
Pandiyan was being one of the conspirators had taken part in actual
abduction of Sohrabuddin and others.

19. Ld. counsel further submitted. that CBI alleged that Mr.
Pandiyan was there with other policemen when Sohrabuddin was actually
taken in custody from Luxury Bus going towards Sangli. It was on
23/12/2005 at about 00.30 am. It is further alleged that after abduction of
Sohrabuddin and oth~rs, this accused came back to Ahmadabad by same
vehicle. According to the Ld. counsel these allegations of CBI. also fall flat
considering its own evidence collected during further investigation. Ld.
counsel pointed out that various documents from Indian Air lines, they
show that on 23/11/2005 Mr. Pandiyan travelled from 'Hyderabad to
Ahmadabad vide flight No. IC 563 scheduled departure at 7.30 pm. If it
' ' '

was so then how Mr. Pandiyan would be there with the police tea1n who
allegedly abducted Sohrabuddin and two others and brought them to
Ahmadabad~ Ld. counsel also pointed out the entries in visitors register
kept at A.P. Police officers mess show his stay in Hyderabad in betWeen
21/11/2005 to 23/11/2005 till3.00 pm.

·---....,....~------~~~-"-·..,.·•"· --"'"" . •
•~- ...,~·--~-=~......._.,....-.- ...,.._.,-...._-.-,.~,...~-=-='""""'·-~-..,,.,.= ,_,..•u..,.-~·
 ('

Order below Exh.562. 10 7/~Jfo

20. Ld. counsel further submitted that there is no direct evidence
to show that the accused contacted any other conspirators during that
period. P.W. 99-M.S. Shivraman stated that :Mr. Pandiyan had left
Hyderabad on 23/11/2005 in the evening.

21. Ld. advocate Mr. Kulkarni submitted that itis not in dispute
that Mr. Pandiyan was then using cell No. 9825049395. CDR collected by
CBI in respect of above cell show that the cell was being used m
Ahmadabad only on 23/11/2005. It's location was not shown m
.Hyderabad. Ld. counsel pointed out that CBI recorded statement of
Krishnaji Apate and Sharad Apate~ the passengers travelling in the same
Bus where ~om Sohrabuddin and others were allegedly abducted.
However, they did not identify Mr. Pandiyan as one of the abductors. Ld.
counsel also submitted that there is no allegation against Mr.- Pa11_Q.iyan
that he took part in actual encounter. P.W. 7-Laljibhai Rathod was eye
witness of incident of actual shooting of Sohrabuddin. He did not state
that Mr. Pandiyan was present on the spot at any time. According to the
Ld. counsel, except statements of PW 105 Nathuba Jadeja and P.W. 106-
. Gurudayal Singh there is no evidenceon record to showthat accused was
present and had contacted any other accused during that period. P.W. 99
M.S. Shivramkrishnan stated that Mt. Pandiyan left Hyderabad on
23/11/2005 in the evening.

22. According to the Ld. counsel statement of P.W. 105 Nadhoba

Jadeja and P.W. 106 Gurudayal Singh cannot be relied on because both of
them stated on affidavit before the CBI Court at Ahmadabad that CBI
officers have forcfd them to give such statements. They were put under
the threats of arrest. Ld. counsel submitted that there is absolutely no
..;..,...,

-.·----~-.----··-•• • • •• oq•----·--·,.•
(.-,-.,

Order below Exh.S62. 11 7~///

evidence to show Mr. Pandiyan's involvement in encounter of Tulsiram
Prajapati and death of Kausarbi.

23. He further submitted that accused was then working as Sr.

Superintendent of Police, ATS, Gujarat. It was his duty to control law and
order situation which had then deteriorated in the State of Gujarat after
the infamous Godhra riots. Dreaded criminals and terrorists were taking
advantage of this sensitive situation and were indulging in and carrying
attacks on politicians. In November 2005 there was a Bomb blast in
Begumpet, Hyderabad carried out by suicide bomber. Mr. Pandiyan being
Sr. S.P. ATS, Ahmadabad was instructed to visit that spot in Hyderabad.
Accused No. 1 D.G. Vanzara who was then D.I.G. ATS, Gujarat directed
him to go to Hyderabad to visit that place. On the basis of such tainted
evidence firstly CID Gujarat and then CBI Mumbai implicated him in false
case stating that he is one of the conspirators in fake encounter. In view of
such weak evidence he ought not to have been prosecuted without
sanction from the State Government under section 197 of Cr. P.C.

24. Ld. counsel also submitted that even otherwise as per section
161 of Bombay Police Act, the Court ought not to have taken cognizance of
the case against the accused in respect of incident which had allegedly
taken in 2005 of which charge-sheet came to be filed in 2007 i.e. one year
after alleged offence.

25. Ld. advocate relied on number of rulings on the point as to

what material the court should consider while dealing with application for
discharge under section 227 of Cr. P.C. He also relied on number of
rulings on the point that no cognizance of the case shall be taken against
p

Order below Exh.562. 12

7j X V11 =/tt.-
the accused/public servant by this court or court of at first instance under
section 197 Cr. P.C. without sanction from the State Government. The
rulings are :
l)Babubhai Vs. State of Gujarat & Ors. 2010 (12) SCC 254,
2) Ajay Kumar ParmarVs. State of Rajasthan 2012,
3) Sajjan Kumar Vs. Central Bureau of Investigation 2010 (9) SCC
368,
4) Vijayan Vs. State of Kerala 2010 Cr.L.J. 1427,
5) Dr. Bipin Shantilal Panchal Vs. Pruthviraj@ Aniruddhsingh
1999 Cr.L.J. 214,
6) Union of India Vs.Prafullakumar Samal(1979) 3- SCC 4·
7) State of Katnataka Vs. L. Munishwamy 1977 (2} SCC 699.

26. Ld. prosecutor Mr. B.P. Raju submitted that Mr. Pandiyan
was then working -as S.P. ATS Ahmadabad. His presence appear ~r!hret!

crucial spot and that too at material times; 1) abduction of SohrfibUddin

and his encounter ;2) while disposing dead bOdy of Kausarbi and 3) at the
time of eliminating Tulsiram Prajapati. According to the Ld. prosecutor
Mr. Pandiyan had arranged the vehicle for .police team to go to
Hyderabad. P.W•. 144 Premjibhai Cham st4ted so in his statement. It is
corroborated by his Irianager P.W. 145 M:adhubhai and P.W. 146 Malde.
P.W. 105 Nathuba Jadeja stated that Sohrabuddin was brought to
Ahmadabad in that vehicle. Mr. Pandian was with them. There is also
evidence on .record to show that in Hyderabad he, Ashish Parmar and
Santaram Sharma changed number plate of that vehicle to conceal its
identity. P.W. 97 E.R. Radhakrishnan, P.W. 98- Islavat Arvindu and PW
90 Navalkishor stated that Mr. Pandian had come to Hyderabad for some
official work and had stayed in IPS officers' mess.
·.:.....
ic

7/-'XV1L/t3
Order below Exh.562. 13

27. While countering submission of Ld. defence counsel, that Mr.

Pandian left Hyderabad on 23/11/2005 at 3.00 pm. and went to
Ahmadabad by airplane, Ld. prosecutor submitted thai the passengers
declaration form - D1 does not bear signature of Mr. Pandiyan. It bears
signature of Ashish Parmar. Hence, there is possibility that Ashish Parmar
travelled from Hyderabad to Ahmadabad in the name of Mr. Pandiyan.

28. Ld. prosecutor submitted that evidence of P.W. 105 Nathuba

J adeja cannot be over looked at this stage holding that he has retracted
from his statement. He stated that Mr. Pandiyan was there with them in
the Jeep by which Sohrabuddin and Kausarbi were brought to
Ahmadabad. He further stated that he had seen Mr. Pandiyan at the place
where Sohrabuddin was encountered and even at the place· where
Kausarbi's dead body was burnt.

29. As far as Mr. Pandian's involvement in fake encounter of

Tulsiram Prajapati is concerned, Ld. prosecutor pointed out that
statement of P.W. 58-Sudhir Joshi. 1\-Ir. Sudhir Joshi stated that Mr.
Pandian told accused No. 3 Mr. M.N. Dinesh that Tulsiram Prajapati's
location appears at Banaskat. Ld. prosecutor also submitted that P.W. 105
Nathuba Jadeja statem.ent cannot be kept out of consideration in view of
order of Hon 'ble High Court whereby order of this court refusing to treat
him as accused was ~P held. Ld. prosecutor submitted that there is
evidence on record to raise strong suspicion about involvement of this
accused in this crime. Hence, he cannot be discharged. He further
submitted that allegations against the accused are that he_ is involved in
fake encounter. He cannot get protection under section 197 of Cr. 0 .C. To
substantiate his argument Ld. prosecutor relied on number of rul_ings~
,.,.,.--..,.

7 (701\f /ltr
Order below Exb.562. 14

They are as follow ;

1) "State of Bihar v/s Ramesh Singh" (1977 Cri. L.J.
1606(1));
2) "State ofKarnataka v/s L. Muniswamy & O:ts." (1977
Cri.L.J. 1125(1);
3) "Union of India vfs Prafulla.Kumar Samal'' (1979
Cri.L.J. 154 (1);
4) "State ofMaharashtra v/s Somnath Thapa" (1996
Cri.L.J. 2448)
s) "State of Orissa v/s D~bendra Nath Padhi" (AIR 2005
sc 359)
6) "P. Vijaya:ri vjs State ofKerala" (2o1o CrL L.J; 1427) ---
7) "Rukmani Narvekar v/s Vijaya Satardekar (AIR 2009
. sc 1013)
8) "Shoraj SinghAhlawat & Ors. v/s State c:>fU.P. & qrs..
(2013 Cri L,J. 331)

30. I have minutely ·gone through the evidence and materia}

collected by the piosecution·to rest its case against the accused. As rightly
pointed out by Ld. counsel Mr. Kulkarni and Ld. prosecutor Mr. Raju this
!!' .

accused is shown to have been involved in this case on the basis of three
incriminating facts;
i) It is alleged ·that this accused has taken active part in
abduction of Sohrabuddin amlTulsiram Prajapati and Kausarbi;
ii} He was seen at the spot after Sohrabuddin was
encountered and at the spot where Kausarbi's dead body was disposed of.
iii) He told Mr. Dinesh- accused No. 3 that Tulsiram Prajapati's presence
was spotted in Banaskantha district.
·-:...~,.
(~

Order below Exh.562. 15

7 txzrJ IS

31. It is not in dispute that the applicant/accused was then

working as SPATS Ahmadabad. It is not in dispute that he was directed by
accused No. 1 Mr. D.G. Vanzara to visit Bomb Site at Begum Pet,
Hyderabad. Letter dated 21/11/2005 is on record at Exh.10. The accused
having gone to Hyderabad for some secrete official work. Witness i.e. P.W.
97 E.R. Radhakrishnan, P.W. 90 Navalkishor, P.W. 91 T.D. Vishwanathan
all stated that Mr. Pandiyan had come to Hyderabad and stayed in IPS
officers guest house in between 21/11/2005 , 7.00 pm. till 23/11/2005
3.00 pm. He had co:c:1e for some official secrete mission.

32. It is alleged that Mr. Pandiyan had arranged the Jeep bearing
No. GJ 25-A-7007 for a police team to go to Hyderabad for bringing
Soharabuddin and others. For this the prosecution relied on statements of
P.W. 144- Premjibhai Cham, PW 145-Madhobhai Bandiwala and PW 146-
Mr. Malde. I have perused their statements. What could be gathered
therefrom is that on 18/11/2005 Mr. Pandiyan had requested PW 144-
Premjibhai to give him the Qualise Jeep. P.W. 145-Madhavbhai stated that
he came to know from his driver PW 147- Malde that the Qualise Jeep had
came back at 8.oo pm. on 23/11/2005. From above evidence the
prosecution wants this court to draw inference that Mr. Pandiyan had
arranged the Qualise Jeep bearing No. GJ-25-A-7007 for policemen to go
to Hyderabad.

33. · As against this CBI itself collected evidence to show that prior
to 24/11/2005 Jeep No. GJ-25-A-7007 was lying in authori~ed Service
Centre of Toyata by mime M/s. Infinity Cars at Ahmadabad. None of the
prosecution witnesses including P.W. 105-Nathuba Jadej1 and P.W. 106-
Gurudayal Singh stated that Qualise Car bearing No. GJ-25-A-7007 was
 ....._~ ..... ~.-.u.-............. ~. -·· ··-~ .•• k> . .........._w.~ •. -·.~· -~-~·~·•-·•···-'-"-<::.u.•_,..-,.-.;;u,;:•_•

~----
1 •

7Jym:/tb
Order heJow Exh.562. 16

with them in. which Soharabuddin and others brought to Ahmadabad.

There is evidence on record to indicate that Mr. Pandiyan used the vehicle
of PJldhra Pradesh passing ·when he visited Hyderabad. In short L"'lis
I

evidence is too weak even to hold prima facie that Mr. Pandiyan had
arranged Qualise bearing No.GJ25-A-7007 for police team to go to
Hyderabad.

34. The second set of allegations against Mr. Pandiyan is that on

23/11/2005 at 00.30 midnight he himself took part in actual abduction of
Sohrabuddin and others from Luxury Bus and ·brought them to
Ahmadabad. For this CBI relies on sthtements of P.W. 105Nathuba Jadeja
and P.W. 106 Gurudayal Singh. Both of them were police d.riv~rs. ).'hey

have stated. in . their statements firstly before CID crime which· was
recorded OJ14/4/2007 and thereafter, before CBI which was recorde9:~on

11/5/2010, that on 22/11/2005 they along with Dhabi, Ajay Parmar }lad
!

gone to meet l\1r. Rajkumar at IPS officers mess. Thereafter Ajay Parmar
went to Air port and book the ticket for Mr. Pap.diyan to go to Ahmadabad.
They further stated that at 7.00 pm. they along with Mr. Pandiyan, Dh.abi,
Saritaram and two unknown persons started chasing one Luxury bus.
J adeja was driving the Qualise jeep brought from Gujarat. At 12.. oo
midnight the luxury bus was made to stop on highway. Mr. Pandian ,
Dhabi and others alighted from his jeep. They went towards Ltmury bus.
They brought two males and one female from that bus. According t them
all of them came to Ahmadabad by over night journey. ·The person who
was made to sit in Tata Sumo was taken towards Rajasthan, one male and
lady in his jeep were taken to . Ahmadabad. It is their say that
applicant/ accused was there with them through out journey after
abduction of Sohrabuddin and other.s.
·.:;.,.

---------,-.-----
 (':~

l(lJdL/'7
Order below Exh.562. · 17

35. Statement of P.W. 105-Nathuba Jadeja and P.W. 106-

Gurudayal Singh are heavily relied on by the prosecution to charge this
accused. This court would have accepted above evidence as it is as the law
requires that the statement of witnesses to be accepted as they stand and
no rowing enquiry shall be made to consider their truthfulness or
otherwise. However, the prosecution itself made it difficult for this court
to rely their statements for more than one reasons. They are ;
1) PW 105-Nathuba Jadeja, P.W. 106 Gurudayal Singh
appears to be evidence of accomplice. Both of them drove private vechile
in which the abductors were allegedly brought. They did not make entry of
their out station journey in duty diary. In fact their office attendance
register produced before the court show that they had attended the duty
from 21/11/2005 to 25/11/2005 onwards. Ld. defence counsel brought to
the notice of this court that this court observed in order para 21 of
discharge application of Mr.N.K. Amin Exh. 6o6 that, P.W. 105 Nathuba
Jadeja is one of the conspirators. I make it clear now that this court
intending to describe him as accomplice and not conspirator.
2) Both of them had filed affidavits in the Court at
Ahmadabad on 22/S/2007 itself that they do not want to give any
statement. They appeared as the accused and made application for
·anticipatory bail but no order was passed on their application. However,
their statements were shown to be recorded on 26/s/2007. They again
retracted from the statements. That was prior to filing of the charge-sheet
against this accused by C.I.D. Crime.
3) Their statements were shown to be recorded afresh by CBI ·
in October 2010. They again approached CBI Court at Ahmadabad. and
filed affidavit stating that they did not give any statements to CBI. Their
statements
.-.
before Ld. Magistrate were recorded under' the threats. It was.·
..

........ --~---;;;-;.u!·'·~,.._..,._"=.""'","r.•'''"'"--_..._,..,...,~.--..,.·-~ -.~.-.~-~·--~--.-...---..-~.-~- ·~ ~-···

 ·-·- .... ,... "'*"<~ .....~.;.,.,.,t,•.tt:..- ••:.... ,.: ...... . .. •:· .. •. )'
·~'1..•:.- ~: .. : ... '"

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7/:J. vt I -jt ~
Order below Exh.562. 18

again prior to filing supplementary charge-sheet against this accused by

CBI.
4) Interestingly their statement recorded in 2007 and further
statement recorded in 2010 are almost ad-verba:tim. In fact during their
statements recorded in 2010 they gave exact date, time of incident in
precise manner which they had not stated in their statement to CID Crime
in 2007.
5) From their statement they appear to be accomplice but not
made as accused and treated as witnesses. This court by its order dated
28/07/2015 (Exh.578) allow CBI to treat them as witnesses, that does not
mean that this court has to accept their evidence without corroboration.

36. As against this there is ·documentary evidence to show that

what has been stated by Nathuba Jadeja and Gurudayal Singh intheir
statements may not be correct. CBI during their investigation collected
evidence to show that Mr. Pandiyan had travelled from Hyderabad to
Ahmadabad on 23/11/2005 by Indian Air Lines international flight No.IC
563. This international flight had taken off from Hyderabad Air Port at
7.00 pm. P.W. 198 Simanta Bordoi -Traffic Assistant then working with
Indian Airlines Hyderabat Airport provid~d list of passengers who had
boarded the plane on 23/11/2005 at 17.50 hrs. One of the passengers was
Rajkumar Mr. Pandiyan. P;,W. 99 M.S. Sivaraman stated• that on
23/11/2005 passenger by name ·Rajkumar had made declaration in
presence of custom officer that he did not carry goods offoreign origin and
cash more than Rs.soooj-. This documents prima facie established that
on 23/11/2005 at 7.00 pm. Mr. Pandiyan left Hyderabad for going to
Ahmadabad by Indian Airlines international flight No.IC 563 and hence,
prosecution evidence that on 23/11/2005 at 00.30 midnight Mr.
·"-._
 r"'·

7/zw rjt?
Order below Exh.562. 19

Pandiyan abducted Sohrabuddin and others from Luxury Bus and

brought them to Ahmadabad by over night journey cannot be accepted.

37. Ld. prosecutor submitted that someone else had travelled by

that Air plane in the name of Mr. Pandiyan. In fact it is difficult for
anybody to travel in name of someone else considering security measures
being taken in Airport. Ld. prosecutor also submitted that handwriting
and signature on declaration form is not that of Mr. Pandiyan. It is
handwriting and signature of Mr. Parmar. If it was so why CBI did not
make Parmar as the accused. Moreover, there is possibility that lVIr.
Parmar had filled all required details in this form as per instructions of
Mr. Pandiyan. Any way evidence relied on by prosecution that on
23/11/2005 at 11.30 am. Mr. Pandiyan abducted Sohrabuddin and others
appears to be too weak and tainted.

38. It is not in dispute that Mr. Pandiyan was then having cell
number 9825049395. P.W. 3 Tejus Patel the nodal officer of Vodaphone
service provider stated that on 23/11/2005 location of this cell number is
detected in city of Ahmadabad. In short this evidence also rules out
possibility that Mr. Pandiyan was on the way in between Hyderabad to
Ahmadabad on 23/11/2005 from 12.30 to 23/11/2005 at 8.00 pm. As far
as CBI's coJ!tention that on the basis of CDR of cell phone of Mr.
Pandiyan, he was in contact with other accused at material time. However,
- .
it is settled law that only on the basis of CDR no one can-be prosecuted for
serious crime without there being details of conversation.

39. It is alleged that Mr. Pardiyan was present at the spot after
encounter of Sohrabuddin. For this agai_n statement ofP.W. 105-Nathuba

,,
 ~"';-.
!

7/Xtlll jJ.--c
Order below Exh.562. 20

Jadeja was relied on. But as against this other two witnesses P.W. 7-
Laljibhai Rathod and P.W. 108-Chattarsingh stated that they did not see
Mr. Pandian at that spot. It is alleged that Mr. Pandian w~s present at
village Illol when Kausarbi's dead body was disposed off. It was again on
the basis of statement of P.W. 105 Jadeja. In fact if Jadeja's statement is
perused, he had stated that he himself brought the dead body at the spot
.. and staked wood and made pyre and kept dead body of lady on pyre. He
further statedthat Mr. Pandiyan was there along with others. Again the
corroboration to his evidence is required. In this case the accused claimed
discharge from the prosecution under section 227 of Cr. P.C. Ld. advocate
Mr. Kulkarni and Ld. prosecutor Mr~ Raju relied oh number rulings on the
point that what evidence to be looked into while considering application
for discharge urider section 227ofCr. P.C. It is not necessary to not_e each
~ ; '

and every ruling. In one of the landmark ruling in .case of Shoraj SL"Ilgb
Ahlawant and others Vs. State of UP (2013 Cr. LJ 331), the
Hon'ble Apex Court took note of almQst all rulings on this subject and.
succinctly stated the following principles as guidelines.
" To the same effect is the decision of
this Court in Union of India vs. Prafulla
Kumar Samai.andAnr.,{19'J,fJ) 3 SCC 4: (AIR
1979 SC 366), wfzere this Court·- was
examining a similar question in the context of
Section 227 · of the Code of Criminal
.Procedure. The legal position was summed up
asunder:
Thl.ts, oiz a consideration of the
authorities' mentioned above, the following
principles emerge : ·
(1) That the Judge while
considering the question of framing the
charges under Section 227 of the Code has the
undoubted power t sift and weigh the
evidence for the limited purpose of finding

'~-
 ( ·..

'7/EJI-/'--I
Order below Exh.562. 21

out whether or not a prima facie cae against

the accused has been made out :
(2) Where the materials placed
before the Court disclose grave suspicion
against the accused which has not been
properly explained the Court will be fully
justified in framing a charge and proceeding
with the trial.
(3) The test to determine a prima
facie case would naturally depend upon the
facts of each case and it is difficult to lay
down a rule of universal application. By and
large however if two views are equally
possible and the Judge is satisfied that the
evidence produced before him while giving
rise to some suspicion but not grave suspicion
against the accused, he will be .fully within his .
right to discharge the accused.
(4) That in exercising his
jurisdiction under Section 227 of the Code the
Judge which under the present Code is a
senior and experienced Judge cannot act
merely as a Post Office or a mouth-piece of
the prosecution, but has to consider the broad
probabilities of the case, the total effect of the
evidence and the documents produced before
the Court, any basic infirmities appearing int
he case and so on. This however does not
mean that the Judge should make a roving
enquiry into the pros and cons of the matter
and weigh the evidence as if he was
conducting a trial."

In view of this I again re-look the prosecution evidence on

record.

40. The prosecution has relied on evidence of P.W. No.105

Nathuba Jadeja and P.W. 106 Gurudayal· Singh. It is seen that their
evidence is appears to ~e evidence of accm,nplice without there being any
.-
/~:;-,

.7~»rr= r]_ ~
Order below Exh.562. 22

corroboration. As against there is evidence on record to show that the

Qualise Car which was allegedly arranged by Mr. Pandiyan for police team
to go Hyderabad was in fact lying in Infinity Toyota Authorized Service
Centre station at Ahmadabad prior to 24/11/2005. There is evidence on
record to show that Mr. Pandiyan had gone for official work to inspect
bomb site at Begum Pet, Hyderabad and he had come back to Ahmadabad
by Indian Airlines international flight on 23/11/2005 itself. Other eye
witnesses who are not accomplice stated that they did not see Mr.
Pandiyan at the spot where Soharabuddin was encountered. As argued by
Ld. prosecutor that at this stage this .court cannot overlook the statement
of Nathuba Jadeja and Gurudayal Singh only because they had retracted
from their statements, but evidence on record against Mr. Pandiyan is too
weak and tainted. I have every doubt in my mind whether on the basis of
such tainted evidence the charge can be framed against accused· or not.

41. However, in my considered opinion the prosecution ought to

have obtained sanction to prosecute Mr. Pandiyan because he being S.P.
ATS Gujarat was within his duty to go to Hyderabad. His presence at the
spot where Soharabuddin was encountered is riot enough to hold him as
one of the coiJ.spirators. It has been held by Hon'ble Supreme Court in
case of Manorama Tiwari and others Vs. Surendra N ath Rai
reported in (2016) 1 S.C. Cases 594, after taking· note of
constitutional bench ruling in case of Matajog Dobey Vs. H.C. Bhari
that;
" Public servants have to be
protected from harassment in the
discharge of official duties while ordinary
citizens not so engaged do not require this
safeguard. It was argued that Section 197
·of the Criminal Procedure Code vested an
''-~
/"·

11:tJZIC-( :J-3
Order below Exh.562. 23

absolutely arbitrary power in the

Government to grant or withhold sanction
at their sweet will and pleasure, and the
leg .;t.-,LUUU
... J,.,.,_,,_~t:' ULU ~~~
-1.:-1 ILVL uy d-w-
[~-· V . IL
or- e--.o,--t
U'fV

indicate any guiding principles to control

the exercise of the discretion.
There is no question of any
discrimination between one person and
another int he matter of taking
proceedings against a public servant for
an act done or purporting to be done by
the public servant in the discharge of his
official duties. No one can take such
proceedings without such sanction."

In another ruling in State ofH.P. vs. M.P. Gupta ( (2004) 2 SCC

349) the Hon'ble Apex Court held that "ultimately quality of evidence
appearing against public servant is required to be looked into by the
Court."
It ha$ been held that ;
"It is the quality of the act which is
important and the protection of this section
is available if the act falls within the scope
and range of his official duty. There cannot
·be any universal rule to determine where
there is a .reasonable connection between
the act done and the officialduty, nor is it
possible to lay down any such rule. One ·
safe and sure test in this regard would be ·.
to consider if the omission or neglectpn.the··.
part of the public servant to commit the act ..
complained of could, have made .··him:
answerable for a charge of dereliction of .
his official duty; if the· answer· to' ·. this. ·
question is in the. affirmative, · it may be ,
said that such act was committed by the
public servant while acting in · the
discharge of his official duty. and there was
every connection with ~he. aqt ·comf!lairze,d

-··· ----- -----·-· ----- ---- _____________ ....._.,.,---~- --~------~-~- ---~---

{7,
I '

7/rErC/l ~
Order below Exh.562. 24

of and the official duty of the public

servant. This aspect makes it clear that the
concept of sec.197 does not get immediately
attracted on instit1.1tion of the complaint ,
case."

42. While answering the question whether police officers involved

in encounter case can claim protection. The Apex court held in It is in
the case of"Omprakash vs. State of Jharldtand" (2012) 12 SCC 72)

(supra) in para 29 of said ruling that;

"The true test as to whether a
public servant' was acting or purporting to
act in discharge of ,his duties would be
whether the act complained of was directly
connected with his o1/icialduties or it was
dope in the discharge of his official duties or
i( was so integrally connected with or
attached to his office as to be inseparable
from it. The protec;tion given under section
19j rif the Code has certain limits and is
. available only when the alleged act done by
the public servant is reasonably connected
with tlie di!icharge of his official duty and is
not . me_relY a clo0;k fqr doing the
objectionable act. -If in doing his official
duty, he acted in. excess ojhis duty, but there
is a· _reasonable. connection be,tween the act
· and ~he performance ofthe offiCial duty, the
excess will not be a sufficient ground to
· deprive the public servant of the
. "...
protect;.on '

It has been further held by the Hon'ble Apex Court in this ruling that:-
"Unless unimpeachable evidence is on
record to establish that their action is
indefensible, mala-fide and vindictive,they
cannot be subjected to prosecution;
Sanction must be a precondition to their
prosecution.Jt affords necessary protection
.,
...
 .~\

Order below Exh.562.

7/'lJlLiLS
25

to such police personnel. Plea regarding

sanction can be raised at the inception."

43- In view of above pronouncement I agah'1 consider

I
qualit'J of
evidence on record against this accused.
1) P.W. 105 and P.W. 106, Nathuba Jadeja and Gurudayal
Singh both stated that Mr. Pandiyan saheb was there when on 23/11/2005
at 00.30 am. Soharabuddin and others were abducted from Luxury Bus
but at same time there is evidence on record to show that on 23/11/2005
at 8.30 pm. Mr. Pandiyan had come back from Hyderabad to Abmadabad.
Moreover there is evidence on record that he had gone to Hyderabad for
official visit.
2) Nathuba Jadeja stated that he saw Mr. Pandiyan at the
spot where Soharabuddin was encountered whereas other two witnesses
Lalji Rathod and Chatrapal Singh did not state accordingly.
3) Nathuba Jadeja stated that he saw Mr. Pandiyan was
present at the spot where Kausarbi's dead body was disposed off, but his
statement itself shows that he himself took active part in disposing
Kausarbi dead body. In such situation his evidence requires some
corroboration. Moreover, both Nathuba and Gurudayal Singh had
retracted from their statements before filing of charge-sheet by CID crime.
In view of above evidence and in my considered opinion, in view of such
weak and tainted evidence against this accused the prosecution agency
ought to have obtained permission to prosecute this accused from the
Government of Gujarat under section 197 of Cr. P.C. more particularly
when evidence against Mr. Pandiyan is not clear, unambiguous and cogent
to prosecute him for serious offence under section 120,..B, 364, 201 of

"
r:--·

"J(ZJJL/Lb
Order below Exh.562. 26

Indian Penal Code. With this I proceed to pass the following order.
ORDER
1) The prosecution against accused
'·
No.2-Dr. R.S. Mr. Pandiyan stands dropped
for want of sanction to prosecute him under
section 197 of Code of Criminal Procedure.
2) His bail bond to remain in force for
further period of Six months as per section
437-A of Cr. P.C.

(M.B. GOSAVI)
Special Judge for CBI,
Date:- 25-08-2016 Gr.Mumbai.

Dictated on : 25-08•2016
Transcribed on : 26-o8-2i:n6
Signed on .

.,.._
 F'\

Order below Exh.562. 27

7/TiiC/J-7

" I affirm that the contents of this PDF file judgment

are the same, word to word, as per the original judgment"
Name of Steno with Post : Mrs. Samata S. Sarnobat.
Stenographer (H.G.)
Name of the Judge (with Court No.) : Shri M. B. Gosavi C.R.No.49
Date of pronouncement of judgment : 25/08/2016
Judgment signed by the P.O. on :25/08/2016
Judgment uploaded on : 01/09/2016

.~
~~.

7fy;tA!C(t
IN THE COURT OF SESSIONS FOR GREATER BOMBAY

DISCHARGE APPLICATION (EXHIBIT- 1061)

IN

SESSION CASE NO. 177/2013, 178/2013, 577/2013 & 312/2014

DALPAT SINGH RATHOD APPLICANT

(ACCUSED No. 28)
VERSUS

CENTRAL BUREAU OF INVESTIGATION

iLl\JD OTHERS COMPLAINMIT
NON-APPLICANT

Anpearance:
Advocate Niranjan Mundargi - for Accused No. 28
Shri B. P. Raju- Special P.P. CBI/Non-Applicant

CORAM : THE ADDITIONAL SESSIONS JUDGE

SHRI S.J. SHARMA {CR No. 49)

DATE : 24m JULY, 2017

ORDER BELOW EXHIBIT 1061

1. Accused No. 28 /applicant named above by this application

filed under section 227 of the Code of Criminal Procedure claimed
discharge from the offenc.es punishable under section 120B, 364, 365, 368,
341, 342, 384, 302 r/w section 201 of Indian Penal Code, 1860 and
section 25 of the Arms Act, stating that upon considering evidence and
material on record tendered and relied by the prosecution, it being not

--- ..-~-·-··------ ---~--··· ----~

 7/ff[ii:../ 2-
~'
2 0rder below ExJ1. 1061 in
(
I. S.C. 177/2013, 178/2013,577/2013
& 312/2014

sufficient to frame the charge against him and further claimed for dropping
of the prosecution for want of sanction as contemplated under section 197
of the Criminal Procedure Code from the State Government contending
inter-alia that whatever acts or omissions he allegedly committed
I
being
committed by him while discharging his official duties as Police constable,
Rajasthan.

2. It will be worthwhile to consider and appreciate the

prosecution case and specific allegations made against this accused, which
are expedient for deciding the application in hand.

During the period between 2004 to 2006, police

officers/policemen of Gujarat and Rajasthan State along with some
poiiticians entered into criminal conspiracy to nab and kill dreaded
criminal
. one Sohrabuddin Sheikh,
. who was said to be involved in so many
cases of murder, abductions, extonion, carrying firearms, etc. pending in
various courts of State of Gujarat and State of Rajasthan. The said
Sohrabuddin was shown to be absconding accused in one crime registered
against him in Navrangpura Police Station, Ahmadabad. He was also
shown absconding accused in a murder case of one Hamid Lala, registered
at Hathipole · Police Station, Udaipur in State of Rajasthan. Therefore,
police of both the States were searching him.

3. It is further alleged by the prosecution that in pursuance of.

such conspiracy to nab said Sohrabuddin and to eliminate him, team of
policemen of both the States were formed.

·---'---·..-..
 3
_ 7IEJ1L--! 3
Order below Exh. 10&1 in
,~.~·
S.C. 177/2013, 178/2013, 5771"'2013
& 312/2014

4. The policemen learnt that Sohrabuddin along with his wife

Kausarbi had gone to Hyderabad to celebrate Eid at the house of one
Kalimuddin. They further learnt that Sohrabuddin was to go back to Sangli
(Maharashtra) from Hyderabad on 22/11/2005 in a luxury bus of M/s.
I
Sangeela Travels bea~ing no. KA-05-F-5051. It was, therefore, decided to
abduct Sohrabuddin from the said bus. Accordingly, the police team from
Gujarat went to Hyderabad.

5. It is further alleged by the prosecution that said bus reached

at M.S. Dhaba near Zaheerabad and halted there at 11:30 pm for
refreshment on 22/11/2005. When the said bus was 15 km away from
Zaheerabad and was proceeding towards Belgaum, it was intercepted by
two Tata Sumo and one Qualis Jeep. The bus driver was made to stop the
bus. Two persons, who were in plain clothes entered the bus, while one
waited at the door. They asked the driver to switch-on the internal lights.
They informed that they are policemen and wanted to take search of the
bus. Ultimately, Sohrabuddin, Kausarbi and one niore person claimed to be
Tulsiram Prajapati were taken in custody. They were brought to Valsad,
where they all took lunch in a hotel and thereafter Tulsiram Prajapati was
shifted in another Jeep and was taken to Udaipur by Rajasthan police;
whe~eas Sohrabuddin and Kausarbi were taken to Ahmadabad by Gujarat
police. Sohrabuddin and Kausarbi were kept in Disha Farm-House near
Ahmadabad till 25/11/2005.

6. It is further alleged by the prosecution that on 25/11/2005,

Sohrabuddin alone was taken to Arham Farm-:-House and thereafter lastly .
he was taken towards GSB pol~ situated between Narol and Vishala Circle.
Soharbuddin was killed in a fake encounter in the morning of 26/11/2005 .··
 .... -.-.-~·...,.~··.&!tt.'it-..T.....,.~-..4 .. ...•.•
~

. __71~/tr
(~-'.
4 Order below Erli. 1061 in
S.C. 177/2013, 178/2013, 577/2()13
& 312/2014

at about 5:20am. After about 3 days thereafter, his wife Kausarbi was also
killed by police and her dead body was burnt and disposed of on the river
bed near village Illol on 29/11/2005. After about one year there from,
more specifically on 27/12!2006, Tulsiram Prajapati was also shot dead by.
I

Gujarat and Rajasthan police. in a stage managed encounter near Sarhad

Chapri on border of State of Gujarat and Rajasthan. Crime no. 115/2006
was registered by Rajasthan police that Tulsiram Prajapati has been killed
in encounter.

7. It is further the case of prosecution that both Kausarbi and

Tulsiram Prajapati were killed as they were eye-witnesses to t..l}e abduction
of Sohrabuddin.

8. Applicant/accused no. 28, a police Inspector of Rajasthan

Cadre filed a complaint with ATS Crime Gujarat on 26/11/2005 stating
that while Sohrabuddin - the absconding accused was coming from Surat
by High-way, he was asked to surrender but he at once opened fire on
policemen who were to apprehend him. In retaliation, the police also
opened fire against Sohrabuddin in which he died. The matter was
investigated by police officer Mr. M.L. Parmar (Accused no. 4) who found
that it was a genuine encounter and filed abate summary report.

9. · It is further alleged by the prosecution that Rubabuddin

Sheikh - brother of slain Sohrabuddin, suspected· some foul play in the
death of his brother and therefore sent a letter to the Hon'ble Chief Justice
of India req~esting ·to enquire into the matter of death of Sohrabuddin and
disaJ-·pearance of Kausarbi. That complaint came to be forwarded to
Director General of Police, Gujarat with direction to enquire into the
 7/~II
,.:r--.. . . . 5 Order below Exh. 1061 in
S.C. 177/2013,178/2013,577/2013
& 312/2014

allegations and to do the needful. The Director General of Police, Gujarat

thereupon asked CID Crime Gujarat, to re-investigate the matter.
Accordingly the matter was re-investigated and charge sheet came to be
filed against thirteen (13) police officials inclusive of this
I
accused/applicant under section 120-B, 364-A, 302, 201 of IPC.

10. It is further alleged by the prosecution thp.t while hearing bail

petition by the Hon'ble Gujarat High Court it was found that in the report
of P.I. Shri Solanki of CID Crime, there appears to be involvement of two
more persons and therefore ultimately those two persons were
subsequently added as accused no. 14 & 15 in the charge-sheet filed by
CID Crime.

11. It is further alleged by the prosecution that said Rubabuddin -

brother of slain Sohrabuddin was not satisfied with above course of action
and therefore filed a writ petition bearing no. 6/2007 in the Hon'ble
Supreme Court with a request to direct CBI to re-investigate the case. In
view of the killing of said Tulsitam Prajapati in fake encounter, his mother
Narmadabai also filed a writ petition in the Hon'ble Supreme Court. In
order to have fair investigation, the Hon'ble Supreme Court directed CBI ·
Mumbai, to carry further investigation after taking into consideration all
aspect inclusive of a larger conspiracy irt all three (3) killings. Accordingly,
CBI Mumbai investigated the matter and filed one main charge sheet and·
three· supplementary charge sheets against tqtal38 accused.

12. In view of involvement of Minister, ·High-ranking police

officers in the matter of death of Sohrabuddin, Kausarbi and Tulsiram

·-- .. - ··-- ----·. ·~ ' ·-··-··· .. ----·- - --·--····- ···-··-· - · .. -~··-

 f
7 /X£-~ 11 6
/:~
6 Order below Exh. 1061 in
S.C. 177/2013, 178/2013,577/2013
& 312/2014

Prajapati, the Hon'ble Supreme Court transferred the trial to this court
from CBI court at Ahmadabad, in order to have fair trial.

13. Accused no. 28/applicant came to be prosecuted in this case

as CBI found his involvement in committing crime in following manner :

1. The applicant/accused no. 28 along with other police

officials namely Mr. Dinesh M.N. (A-3) (superintendent of
Police), Abdul Rehman (A-7) (Police Inspector), Narayan
Singh (A-26) (A.S.I.), Yudhveer Singh (A-:27) (Police
Constable) and Kartar Singh (A-29) (Police Constable)
conspired and thereby done stage managed t.he escape of
Tulsiram Prajapati on 27/12/2006 betwenn Raigadh and
Shyamlaji at about 3:00 am from the Train No. 9944 when
Tulsiram Prajapati was being taken back from Ahmadabad to
Udaipur to admit him in a jail of Udaipur after attending
Court.

n. It is further alleged by prosecution against this

accused/ applicant that he .also accompanied the escori team
of Rajasthan police and SOG team to Ambaji for killing
Tulsiram Prajapati.

111. This applicant/accused had come at Ahmadabad by

train under cover on earlier two court production dates i.e.
28/11/2006 and 12/12/2006 before the encounter of
Tulsiram Prajapati for conducing recce. He stayed in
. Government Guest House, Vihsramgrah, Ahmedabad during
the said visits.
 -~~~&-~~--~· -·--· -·-

7/xmr_/7
(~' 7 Order below Exh. 1061 in
',
S.C. 177/2013, 178/2013, 577/2013
& 312/2014

iv. It is further alleged that A-26, A-27, A-29 and this

accused/applicant were working in different police stations at
Udaipur. In order to check the crime of theft, burglary, etc ~n

Udaipur city, an order dated 08/11/2006 was issued by D.S.P.

Dinesh M.N. (A-3) thereby 14 police officials incl'usive of
officials named above came to be withdrawn from different
police stations and they were given special duty to check the
crime and came to be posted at Surajpol police station of ·
Udaipur.

v. The said Tulsiram Prajapati and one Mohammad Azam

were in Udaipur jail. They were sent with escort in the past
from Udaipur to Ahmadabad to attend the court of CJM. On
last escort of Tulsiram Prajapati to Ahmadabad on ·
26/12/2006 in order to produce him at Ahmadabad court on
27/12/2006, A-26, A-27, A-29 and this applicant/accused
were deputed. While returning back to Udaipur from the said
court in the night of 27/12/2006 during train journey,
Tulsiram Prajapati expressed to go for urination and therefore
two police· officials took him to the toilet during train journey.
At that time applicant/accused was sitting on the berth. In the
mean while when the train was proceeding between Raigadh
to Shyamlaji where there was acute turn and speed of train
was about 20 KMPH,Tulsiram Prajapati .ran ·away from the
custody. According to the prosecution thls story of escaping of
Tusliram Prajapati from custody was a false story created by
the police to suppress the element of conspiracy to have his
stage managed encounter.
 7/ZFUL/~
r'. 8 Order below Exh. 1061 in
S.C. 177/2013, 178/2013, 577/2013
& 312/2014

1v. On 27/12/2006 at about 5:00 pm, in fact, Tulsiram

Prajapati was already in custody of police, was killed in fake
encounter in a village on the border of Gujarat and Rajasthan
State. Thus this accused/applicant acted in conspiracy· with
I

other police officers in the killing of Tulsirarn Prajapati.

14. The applicant/accused claims that court ought not to have ·

taken cognizance of the alleged offence against him without sanction from
the State Government as required under section 197 Cr. P. C. because, he
played role pursuant to the directions given by his superior officers which
forms part and parcel of his duty. The alleged acts attributed against them
by the prosecution can be said to be sufficient to have been performed in
the course of his official duty. Consequently, he being police officer viz.
public servant, prior sanction to prosecute him as contemplated under
section 197 of Cr. P.C. was necessary which was not obtained by the
prosecution and therefore prosecution against him needs to be dropped.

It is contended for this accused/applicant that when under

trials were to be taken from jail of Udaipur to the courts at Ahmadabad
and in view of paucity of police officials in the police headquarter as
infoimedby PW-114 (Head Constable Hazarilal Meena) to the S.P. Dinesh
M.N. (A-3), he was informed that there being possibility of attempt to
escape fn~m custody by Tulsiram Prajapati.. four police offic:ials including
this applicant/ accused were engaged to escort. Thus he acted in discharge
of his official duty. It is consequently, submitted that there was never an
occasion that. police officials including this applicant/accu~ed had any
meeting and any sort of communication/conversation of any nature with
S.P. Mr. Dinesh M.N. prior to engaging them to escort and even when
Tulsiram Prajapati was being escorted. In view of such facts .. even on merit,
 7~/7
(" 9 Order below Exh. 1061 in
S.C. 177/2013, 178/2013, 577./2013
& 312/2014

. it is alleged that element of meeting of minds to agree to do any illegal act

or legal act by illegal means being absent, he is entitled for discharge in
view of section 227 of Cr. P. C.

It is further contended by Ld. Counsel for the I applicant/

accused that he was not a member of team of police officials which said to
have killed Tulsiram Prajapati in alleged stage managed encounter and
therefore also this applicant/accused is entitled for discharge;

15. Ld. Special Prosecutor Shri B.P. Raju has vehemently

contended that this accused/applicant was on escort duty of Tulsiram
Prajapati and co-conspirator in the crime. It is submitted that in order to
establish criminal conspiracy, presence of accused at the spot is not ..
essential. According to him, the .story put forth of escorting Tulsiram
Prajapati from Udaipur jail to Ahmadabad is a fake story which can even ·
be substantiated from the expert statement and medical report to the effect .
that there was no chilli powder found in the eyes of A-27 and A-29. He
also contended that there is no challenge to the fact of death of Tulsiram
Prajapati. A careful reading of statement of prosecution witnesses besides
documentary evidence placed on record will definitely establish that
accused/applicant was one of the conspirators along with the other police
official in the killing of Tulsiram Prajapati and therefore he is not entitled
for discharge. It is also contended that considering the material on record
against this accused/applicant, it cannot be said that he aCted in discharge
of his public duty in killing of Tulsiram Prajapati and therefore prior
sanction ·of Government to prosecute him is not warranted. in this case.
 7/Y;fuL/t~
10 Order below Exh. 1061 in
:~'~",
S.C. 177/2013,178/2013,577/2013
& 312/2014

16. I have gone through the case papers including statements of

witnesses more particularly statement of Azam Khan (PW4), Himmat
Singh (PW;.52), Hinglaz Dan (PW-80), Budhnaranyan (PW-92), Tej Singh
(PW-93), Ummed Singh (PW-94), Jagdish Ramanlal Prajapati
. . I
(PW-95),
,

Daya Lal (PW-100), Nizamuddin (PW-101), Fateh Singh (PW-109), Gopal

Singh Chundawat (PW-111), Govind Singh (PW-112), Om Kumar (PW-
113), Hazarilal Meena (PW-114), Bhopal Singh Rahtore . (Pw-115),
Hernendra Singh Chouhan (PW-127), Ghanshyam (PW-137), Hiralal Ahari
(PW-138), Vasantbhai Suraji Barot (PW-145), Rajendra Singh Bharnbhala
(PVV-149) and Dr. Manishbhai Amraji Suvera (Pw-151). I have gone
through the documentary evidence viz. complaint dated 27/12/2006
-lodged by Shri Narayan Singh, FIR registered with Railway Ahmadabad,
Panchanama dated 27/12/2006 drawn by Mr. P.M. Jadhav (P.I.) regarding
seizure of one empty cartridge from this accuse/applicant, MLC certificate
dated 27/12/2006, FIR no. 115/2006, complaint of PSI Ashish Pandya,
Panchanam ·dated 09/05/2010, ballistic report dated 23!05!2007,
Government guest house register of Ahmadabad , order issued by S.P.
Dinesh M.N., etc. as mentioned in the argument submitted by prosecution.
I have also gone through the citations referred by the parties.

17. To substantiate his argument, Ld. Counsel for the applicant

prayed to consider the rulings relied upon by this court while deciding
discharge · of other co-accused. As against this, Ld. Prosecutor placed
reliance oil rulings in the case of

a. State ofBiharV/s. Ramesh Singh 1977 Cri. L.J. ·

1606 (1); .
b. State of Karnataka V/s. L. Muniswamy & Ors. 1979
Cri. L.J. 1125 (1);
c.· Union of India V/s. Prafulla Kumar Samall996 Cri. L.J.

.
 ·7/3w-(11
r·"'-,
11 Order below Exh. 1061 in
S.C. 177/2013,178/2013,577/2013
& 312/2014

154 (1);
d. State of Maharashtra V/s. Somnath Thapa 1996 Cri.L.J.
2448;

e. State of Orissa V/s. Debendra Nath Padhi AIR 2005

sc 359;
f. P. Vijayan V/s. State of Kerala 2010 Cri. L.J. 1427; ·
g. Rukmani Narvekar V/s. Vijaya Satardekar AIR 2009
sc 1013;
h. Shoraj Singh Ahlawat & Ors. V/s. State ofU.P. & Ors.
2013 Cri. L.J. 331.

18. First of all it would be worthwhile to consider the scope of

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have a glance to tt.'le said provision which reads as under:

"If, upon the consideration of the record of the case, and

documents submitted therewith, after hearing submissions of the accused..
and the prosecution in that behalf, the judge considers that, there is not
sufficient ground for proceeding against the accused, he shall discharge the
accused and record his reasons for so doing."

19. · It is not ·necessary to note each and every ruling while

deciding the application in hand, more particularly when ratio held in
citations referred to are elaborately discussed and dealt with any one of
the citation ..

The Hon'ble Apex Court in the matter of Century· Spinning and .

Manufacturing Company V/s. State of Maharashtra (1~72) 3 SCC 282
considered the scope of section 251 (A) Cr. P. C 1898 (old code), now
section 239 ofthe Cr. P. C. It is observed in para. 17 that:
 7 /ZBIE f,z_
rr::-:'.
12 Order below Exh. 1061 in
S.C. 177/2013, 178/2013, 577/2013
& 312/2014

"the order of framing charge does substantially affects

the person's liberty and it is not possible to
countenance the view that the Court must
automatically frame the charge merely because .the
prosecuting authorities, by relying on documents
referred to in section 173, considers it proper to
institute the case. The responsibility of framing
charges is that of the Court and it has to
judicially consider the question of doing so.
Without fully adverting the material on record,
it must not blindly adopt the decision of the
prosecution."

The scope of sec.227, Cr.P.C. was considered by Hon'ble

Supreme Court in the ruling Union of India v/s Prafulla Kumar Samal··
( (1979) 3 sec 4). It was held that,

"the words 'not sufficient grounds for proceeding

against the accused' clearly shows that the judge is not
a mere post office to frame the charge at the behest of
the prosecution, but, he has to exercise his judicial
mind to the facts of the case in order to determine
whether a case for trial has been made out by the
prosecution. In assessing this fact, it is not necessary
for the Court to enter into pros and cons of the matter
or into weighing and balancing the evidence and
probabilities which is really his function after the trial
starts. At the stage of section 227, the judge has
merely to ·sift th~ evidence in order to find .out whether
or not~ there is sufficient ground for proceeding
against the . a_ccused. ·The, sufficiency. of the ground
would take within its fold the nature of evidence
recorded by the police or the docum~nts produced
.... before the Court which Ex Facie disclose thqt there are .

-~-----.---·•·---•..,._...--·-··-__._,__ _ _ __..,._.v• __,,_. ___ ,.,........,.,~--.".,......,~~-~-•~-~ ,_.,,_,._.• - •.- ....,--~-- _ _ _ _ ,_.,....__.__ ....,....,.,.__~-...,•·•,.._. ,_,..,~.
 I k
,~

! 13
I
7f""'lJd..iZ I 3
Order below Exh. 1061 in .··~
e
"'
S.C. 177/2013,178/2013,577/2013
& 312/2014 f
;

I,
suspicious circumstances against the accused to frame
the charge".
·Ji·....•..
It has further been held by the Apex Court that, ··.:;f

"The scope of section 227 of the code was

;.:,
considered by a recent decision of this Court. In the
case of State of Bihar v/s Ramesh Singh, the Court
observed as follows: Strong suspicion against the
accused, if the matter remains in the region of ·j'•.

suspicion, cannot take pale of proof of his guilt at the

conclusion of trial. But, if at initial stage there is a
strong suspicion, which leads the Court to think that
there is ground for presuming that the accused has
committed an offence, then it is not open to the Court
to Say that there is no sufficient ground of proceeding
against the accused. The presumption of the guilt of
the accused which is to be drawn at an initial stage is
not in the sense of the law governing trial of criminal
cases in France, where the accused is presumed to be
guilty unless the contrary is proved. But It is, only for
the purpose of deciding prima-facie whether the Court
should proceed with the trial or not. If the evidence
which the prosecutor proposes to adduce to prove the
guilt of the accuse<L ellen if fully accepted before it is
challenged in cross examination or rebutted by the
defence evidence, if any, cannot show that the accused
committed the offence, then . there is no sufficient
:::·."·
ground for proceeding with the trial. This Court has
thus held that, whereas strong suspicion may not take
place of proof at the trial stage, yet· it may be
sufficient for the satisfaction of the Sessiom Judge ·
to frame the charge against the accused." -:

.>4
i.
 7/~/ttr
I
~ 14 Order below Exh. 1061 in
S.C. 177/2013, 178/2013, 577/2013
& 312/2014

In the case of P Vijayan v/s State of Kerala (2010 Cri. L.J.

1427 (SC)), the Hon'ble Apex Court while considering the scope of
section 227 of the Cr. P. C. observed that,

"If two views are possible and one of them gives rise
to suspicion only as distinguished from grave · '':(~

suspicion the trial judge is empowered to discharge

7

the accused and at this stage he is not to see

whether trial will end in conviction or acquittal"

In the recent ruling in case of Shoraj Singh Ahlawat & Ors.

V/s. State of U.P. & Ors. 2013 Cri. L.J. 331 the Hon'ble Apex Court took
note of almost all rulings on this subject and succinctly stated the following
principles as guidelines.

'To the same effect is the decision of this

court in Union of India Vs. Prafulla Kumar Samai
and Anr. (1979) 3 SCC 4: (AIR 1979 SC 366},
where this Court was examining a similar question
in the context of Section 227 of the Code of
Criminal Procedure. The legal position was summed
up as under:

ThUS on a consideration of the authorities'

7

mentioned above7 the following principles emerge:

(1) That the Judge while considering the question of

}'li

framing the charges under Section 227 of the Code has the
undoubted power to sift and weigh the evidence for the
limited purpose of finding out whether or not a prima facie
cae against the accused has been made out:

(2) . Where the materials placed before the Court disclose

"' grave suspicion against the accused which has not been
 7/XCfiT (' r
0"
15 Order below Exll. 1061 in
S.C. 177/2013, 178/2013, 577/2013
& 312/2014

properly explained the Court will be fully justified in framing

a charge and proceeding with the trial.

(3) The test to determine a prima facie case would

naturally depend upon the facts of each case and i~ is difficult
to lay down a rule of universal application. By and large
however if two .views are equally possible and the Judge· is
satisfied that the evidence produced before him while giving
rise to some suspicion but grave suspicion against the accused,
he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of

the Code the Judge which under the present Code is a senior
and experienced Judge cannot act merely as a Post Offic~-~?r a
mouth-piece of the prosecution, but has to consider the broad
probabilities of the case, the total effect of the evidence ....and
the documents produced before the Court, any b~asic

infirmities appearing in the case and so on. This however does

not mean that the Judge should make a roving enquiry into
the pros and cons of the matter and weigh the evidence as if
he was conducting a trial.'

20. Let us now consider the statement and material on record.

PW-111 (ASI- Gopal Singh Chundawat) is a witness who was on duty at
Surajpol police station on 25/12/2006 when A-26, A-27, A-29 and this
accused/applicant (A-28) left Surajpol police station to escort under trial
prisoners~ · PW-112 (police constable - Govind Dingh S/o. Jawan Singh)
was on duty at Surajpol police station. On 25/12/2006, he took entry in

.... Roznamcha (station dairy no. 1690) at 11:50 am about departure of police
 (::----. 16
I
7/7-tll [_ I (;
Order below E:xh. 1061 in
i .
S.C. 177/2013, 178/2013,577/2013
& 312/2014

party consisting of A-26, A-27, A-29 and this accused/applicant (A-28) on

the instruction of SHO Shri Himmat Singh. PVV'-115 (Bhopal Singh S/o.
Devi Singh Rathod) corroborates the statement of above mentioned two.
witnesses regarding reporting by them in police line from Surajpol police
I

station as per oral order of S.P. Udaipur. PW-127 (Hemzndra Singh

Kishore Singh Chauhan), a ticket booking clerk on window no. 2 of
Udaipur railway station that he issued railway tickets on the railway
warrant in favour of these four police officials and in favour of prisoners
named in the warrant. of for reserve police line. PvV-137 (railway driver-
Ghyc..nsham Bhawarlal) that on 27/12/2006, he was a driver on Udaipur
mail. There was chain pulling in the said train on the crossing of Virwada
and Raigarh railway station at around 2:30 to 2:45 hours where train
speed was 20Km/hr on account of acute turn of railway track. There was
inquiry made by train guard Shri. Heeralal Ahari as regard to chain pulling
thereupon he informed on walky-talky to said train guard. He learnt abo-ut
the fact that criminal was got escaped by two other persons by throwing
chilli powder in the eyes of police. He however, did not notice chilli
powder in the eyes or on the face or on the uniform of police present there:
Pw-138 (Heeralal Ahari - Train guard) corroborates statement of train
driver.

PW-147 (ASI- Sanabhai Jeevabhai Baranda) attached to GRP

railway outpost of Himmat Nagar stated that police officials who were
travelling in train along with criminals Tulsiram and one more person,
informed that there was a chain pulling and those criminals after throwing
chilli powder in the eyes of police officials ran away from the train. PW'-
148 (Natwar Singh Hedu Singh Chawla) railway police constable attached
to outpost Himmat Nagar railway stated that on 27/12/2006at about 8:00

,.
 '~
!. .
17 Ordlr !Jo~1 !£ih! ;~1 in
S.C. 177/2013, 178/2013, 577/2013
& 312/2014

am total four officials of Rajasthan police reached to outpost Hirnmat

Nagar and stated that Tulsiram Prajapati ran away from the train.
Accordingly occurrence no. 14/2006 was recorded. He then informed to
his superior in writing about the said incident at railway police station
I

Ahmadabad where FIR no. 294/2006 was registered.

PW-151 (Dr. Manishbhai Suvera of General Hospital, Himmat

Nagar) stated that he examined on 27/12/2006 at 4:15pm the eyes of A-
27 and A-29, however, no chilli powder or any foreign body was found in
their eyes. PW-153 (Hasmukhlal Modi) stated that he was working as
scientific officer in City Mobile FSL, Ahmadabad. He examined the coach
no. 92618-Y of train no. 9944 on 28/12/2006. He found red chilli powder
lying near wash-basin adjacent to western facing door of the said coach.
Chilli powder was also found on wooden space located near wash-basin
and door. The roof of the said coach had a hole of the diameter of·9mm
where revolver cartridge bullet of 0.38 inch was found.

21. A careful scrutiny of statement of above mentioned witnesses

besides relevant documents placed on record in addition to the statement
of other witnesses referred to above by prosecution during arguments, it
would definitely point out that Tulsiram Prajapati was taken from Udaipur
jail by this accused/applicant. along with three other. police officials
referred above for his production at Ahmadabad court on 26/12/2006 and
when . they were . returning back in a train bearing no. 9944 from
Ahmadabad to Udaipur between Raigarh and Shyamlaji where there was
acute .turn of railway track and the speed of train was slow, said Tulsiram
'~
Prajapati got himself escaped from the police custody and ran away. It
 ._:;hvrt'-/rf'
(r.-:----,, 18 Order~xh.1061 in
S.C. 177/2013, 178/2013, 577/2013
& 312/2014

prima facie establishes the defence story for worth of reliance. The
contention of prosecution that formation of escort and taking Tulsiram
Prajapati for his production in court and his escape from train are got up
story cannot be accepted in view of statements of witnesses referred to
I
above. It further establishes that this accused/applicant was a member of
escort party.

22. There is no iota of material on record and it is also not the

case of the prosecution that on the date of killing of Tulsiram Prajapati, he
was present at the spot. Thus, his role in this case is limited for th2
specified period of 26/12/2006 and 27/12/2006 only, that too as a
rriember of escort party. The prosecution evidence prima facie establishes
that Tulsiram Prajapati ran away from the train.

23. Only because chilli powder is not found in the eyes of police
officials who had taken Tulsiram Prajapati for urination will not in itself
take away the gravity of the defence version, which speaks about role of
this applicant/accused limited only for taking said Tulsiram Prajapati for
his production in court from Udaipur to Ahmadabad. It is thus prima facie
apparent that he was not connected in the alleged conspiracy of killing of
Tulsiram Prajapati in alleged stage managed encounter. Thus, to my mind,
there being no prima facie material on record against him to frame charge
of committing conspiracy with others, he is entitled for discharge as per
section 227 of Cr. P. C.

24. Now it is to be seen as to whether prior sanction of .the State

Gov~rnment to prosecute the applicant as contemplated under section 197

-·-· ---- ---- ---·------.--------·-- ----·--------···

 19
7/ '6!?L!E-(t1
Order tiel ow Exh. 1061 in
i~>
S.C. 177/2013,178/2013,577/2013
& 312/2014

of Cr. P. C. was essential. Without repeating the elaborate argument

canvassed by the Ld. Advocate for the applicant suffice it to say that his
contention is that whatever was done by this applicant was done in the
capacity of public servant and pursuant to the directions of superior
I

officers which forms part and parcel of his duty and therefore prior
sanction was essential. According to him, such prior sanction was
admittedly not obtained by prosecution which shall result into dropping of
prosecution. As against this it is submitted by the Ld. Prosecutor that there
was no reasonable connection of the factum of killing of Tulsiram Prajapati
in encounter with the duty to apprehend him; rather the act and conduct
of applicant was objectionable which was not coming wit.hin the colour of
discharge of official duty and therefore in such matter prior sanction is not
required. It is further contended that defence storyabout taking Tulsiram
Prajapati from Udaipur jail to Ahmadabad court and while returning back
to Udaipur, said Tulsiram Prajapati got escaped and ran away is a
concocted, baseless and imaginary story. In fact, there is reliable material
against this accused/applicant to connect him at least as a conspirator in
the killing of said Tulsiram Prajapati. In view of such fact, as killing of a· .
person was not coming within the ambit of discharge of public duty more
particularly when his killing was a stage managed encounter, question of
prior sanction of State Government against this applicant/accused is not
required and -therefore applicant cannot be allowed to take shelter of
section 197 of Cr.P.C.

25. In the case of Ompraksh Versus State of Jharkhand {(2012)

12 SCC 72) Hon'ble Apex court took note of all its earlier rulings and
observed that:-
 ,/Y.t;J.C I 2--o
20 Order oe10w Exh. 1061 in
S.C. 177/2013, 178/2013,577/2D13
& 312/2014

'The true test as to whether a public servant was

acting or purporting to act in discharge of his duties
would be whether the act complained of was directly
connected with his official duties or it was done in the
discharge of his official duties or it was so integrally ,
connected with or attached to his office as to be
inseparable from it. The protection given under
section 197 of the Code has certain limits and is
available only when the alleged act done by the public
servant is reasonably connected with the discharge of
his official duty and is not merely a cloak for doing
the ohjectionable act. If in doing his official duty, he
acteq in excess of his duty, but there is a reasonable
connection between the act and the performance of
the official duty, the excess will not be a sufficient
ground to deprive the public servant of the
protection. '.....

It has been further held by the Hon'ble Apex Court_ in· this

ruling that:-

'Unless unimpeachable evidence is on record to establish that

their· action is indefensible; mala-fide and vindictive, they cannot be
subjected to prosecution. Sanction must be a precondition to their
prosecution .. It affords necessary protection to such police personnel. Plea
regarding sanction can be raised at the inception.'

26. Ld. Counsel for the applicant placed reliance on citation

Manorama Tiwari and Others Vs. Surendra Nath Rai reported in (2016) 1
SC. Case 594, after taking note of constitutional be·,1ch ruling in case of
Matajog Dobey Vs. H. C. Bhari that;

----·----- --------- -------·------

 7/)<~lf /l-f
(--:,
I .
21 Order elow Exh. 1061 in
S.C. 177/2013,178/2013,577/2013
& 312/2014

'Public servants have to be protected from

harassment in the discharge of official duties while
ordinary citizens not so engaged do not require this
safeguard. It was argued that section 197 of the
Criminal Procedure Code vested an absolutelv I ~

arbitrary power in . the Government to grant or

withhold sanction at their sweet will and pleasure~
and the legislature did not lay down or even indicate
any guiding principles to control the exercise of the
discretion.

There is no quescion of any discrimination

between one person and another in the matter of
.,..,..1,.:-- _ ........... ...-.. . . . . . ....J .: ______ :_ ...
~ _ - •• LJ.:_ ---.. . . ~-- ..... r ___ ---
LUI\.Ut0 JJI Ut...C:I:ULH().) U()ULIL.)L U J!UUUL .)t;/ VUIU )Uf" UIL

act done or purporting to be done or purporting to

be done by the public servant in the discharge of his
official duties. No one can take such proceedings
without such sanctions.'

In another ruling in State of H.P. Vs. M.P. Gupta ((2004) 2

SCC 349) the Hon'ble Apex Court held that 'ultimately quality of evidence
appearing against public servant is required to be looked into by the
Court.'

It has been held that;

'It is the quality of the act which is

important and the protection of this section is
available if the act falls within the scope and range
of his official duty. There cannot be any universal
rule to determine where there is a reasonable
connection between the act done and the official
duty~ nor is it possible to lay down any such rule.
One safe and sure test in this regard would be to
consider if the omission or neglect on the part of the
 7 /JJ:u-i2/1- l-

22 Order below EY.h. 1061 in

(~' S.C. 177/2013, 178/2013,577/2013
& 312/2014

public servant to commit the act complained of

could have made him answerable for a charge of
dereliction of his official duty; if the answer to this
question is in the affirmative; it may be said that
such act was committed by the public servant while
acting in the discharge of his official duty and there
was every connection with the act complained of
and the official duty of the public servant. This
aspect makes it clear that the concept of sec. 197
does not get immediately attracted on institution of
the complaint case.'

-27. Keeping in mind ratio held in above citations, let us again

consider the quality of evidence on record against the applicant. It is
elaborately discussed in thell foregoing paragraphs about the acts of
applicant in the alleged killing of Tulsiram Prajapati in encounter.
Considering the quality of material on record against this applicant and
ta,king into conside.ration entire
/ .
prosecution story, to my mind, it is clear.
that there is no prima facie material against this accused/applicant to
connect him in the killing of Tulsiram Prajapati much less as one of the
conspirator. In fact, even prosecution has not whispered presence of this
accused/applicant at the spot on the date and time of killing of said
Tulsiram Prajapati. At the cost of repetition it is reiterated here that role of
this ·applicant/accused was for a restricted cause i.e. to take Tulsiram
Prajapati from Udaipur jail to Ahmadabad court and readmit him ih
Udaipur jail. In view of such fact and in· absence of evidence of his
involvement in any manner in the killing of Tulsiram Prajapati, lam of the
view that the role attributed against this accused/appEcant as reflected
about does definitely come within the sphere of discharge of his official
. .

duty. Consequently, I hold that prior sanction to prosecute this

 71~/l.-J
(~'.
23 Order below Exh. 1061 in
S.C. 177/2013,178/2013,577/2013
& 312/2014

accused/applicant was required as contemplated under section 197 of Cr.

P. C. Admittedly, prior sanction to prosecute this accused/applicant being
not sought, prosecution against him needs to be dropped and it, therefore,
stands dropped. I therefore proceed to pass the following order.
I

ORDER

a. Application Exhibit 1061 is allowed.

b. Accused/Applicant namely Dalpat Singh Rathod is hereby

discharged from prosecution under section 227 of Cr. P. C.

-c. The prosecution against said accused is dropped in absence of prior

sanction of Government as required under section 197 of Cr. P. C.

d. The said accused/applicant is directed to furnish bail bonds of Rs.

20,000!- to appear before the higher court as and when such courtlssues
notice in respect of any appeal/petition ffied against this order and:such
bail bond shall be in force for six (6) months as required under section
437-A Cr. P. C.

(S.J. SHARMA)
Addl. Sessions Judge;
City Civil & Sessions Court~
Gr. Mumbai.
Date :_24.07.2017

DiCtated on 24.07.2017
Transcribed on 24.07.2017
Signed on 24.07.2017 .

·-·--~--~-:......:.-----------·-- ·----~---------
 24
7{:-1/u c/ ~ ~
Order clow E:x_h. 1061 in
(;.'
S.C. 177/2013, 178/2013, 577/2013
& 312/2014

"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL

SIGNED JUDGMENT/ORDER"

UPLOAD DATE AND TIME NAME OF STENOGRAPHER

24.07.2017 (4.30 p.m.) MRS. APARNA v. LELE I
(H.G. STENOGRAPHER)

Name of the Judge Shri S. J. Sharma

(with Court Room No.) C.R. No.49

Date of Pronouncement of JUDGMENT/, 24.07.2017

ORDER
i
--+----
JUDGMENT/ORDER signed by P. 0. on i 24.07.2017

.JUDGMENT/ORDER uploaded on 24.07.2017 at 4.30 p.m.

(-;-:-,,

7/~/t
IN THE COURT OF SESSIONS FOR GREATER BOMBAY

DISCHARGE APPUCATION {EXHIBIT- 912)

IN
SESSION CASE NO. 177/13, 178/13, 577/13 & 312/14

DAHYAJI GOBARTI VANZARA .. ~Applicant/

Accused no. 1
VERSUS

CENTRAL BUREAU OF INVESTIGATION,

Special Crime Branch (SCB), Mumbai ... Respondent

Appearance:
Advocate V. D. Gajjar - for Accused No, 1
Shri B. P. Raju- Special P.P. CBI/Non-Applicant

CORAM : The Additional Sessions Judge

Shri S. J. Sharma (CR No. 49)

Date : ort August, 2017

Order below Exhibit 912

1. Accused No. 01 /applicant named above by this

application filed under section 227 of the Code of Criminal
Procedure claimed discharge from the offences punishable
under section 120B, 364, 365, 368, 341, 342, 384, 302 r/w
section 201· of Indian :Penal Code, 1860 and section 25 of the
Arms Act, stating that upon considering evidence and material
on record tendered and relied by the prosecution, it being not
sufficient to frame the charge against him and further claimed
for dropping · of the prosecution for want of sanction as
·contemplated under section 197 of the Grlininal Procedure Code

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2 Order below Exh. 912 in
\' S.C. 177/2013, 178/2013,
577/2013 & 312/2014

from the State Government contending inter-alia that whatever

acts or omissions he allegedly committed being committed by
him while discharging his official duties as D.I.G., ATS
Ahmadabad (Gujarat).

2. It will be worthwhile to consider and appreciate the

. prosecution case and specific allegations made against this
accuse,d, which are expedient for deciding the application in
hand.

During the period b~n.veen 2004 to 2006, police

officers/policemen of Gujarat and Rajasthan State along with
some politicians entered into criminal conspiracy to nab and kill
. '

dreaded criminal one Sohrabuddin Sheikh, who was said to be

involve_d: ·in so many cases of murder, abdu(tions, extortion,
carrying firearms, etc. pendihg in various courts of State of
Gujarat and State of Rajasthan. The said Sohrabuddin was
shown to be absconding accused in one crime registered aga:lnst
him in Navrangpura Police Station, Ahmadabad. He was also
shown absconding accuseddn a murder case of one Hamid Lala,
registered at Hathipole Police Station, Udaipur in State of
Rajasthan. Therefore, police of both the States were searching
\

him.

3. It is further alleged by the prosecution that in

pursuance of such conspiracy to nab said Sohrabuddin and to
eliminate him, team of policemen of both the States were
formed.
·.;...~_.

------- ----~~----· - -------- ----· -------- _______.. ______ ,,_~_, __

 ?/"$1~/~
r.'~· 3 Order below Exh. 912 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014

4. The policemen learnt that Sohrabuddin along with

his wife Kausarbi had gone to Hyderabad to celebrate Eid at the
house of one Kalimuddin. They further learnt that Sohrabuddin
was to go back to Sangli (Maharashtra) from Hyderabad on
, I

22/11/2005 in a luxury bus of M/s. Sangeela Travels bearing

no. KA-05-F-5051. It was, therefore, decided to abduct
Sohrabuddin from the said bus~ Accordingly, the police team
from Gujarat went to Hyderabad.

5. It is further alleged by the prosecution that said bus

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11:30 pm for refreshment on 22/11/2005. When the said bus

was 15 km away from Zaheerabad and was proceeding towards
Belgaum, it was intercepted by two Tata Sumo and one Qualis
Jeep. The bus driver was made to stop ·the bus. Two persons,
who were in plain clothes entered the bus, while one waited at
the door. They asked the driver to switch-on the internal lights.
They informed that they are policemen and wanted to take
search of the bus. Ultimately, Sohrabuddin, Kausarbi and one
more person claimed to be Tulsiram Prajapati were taken in
custody. they were brought to Valsad, where they all took lunch
in a hotel and thereafter Tulsiram Prajapati was shifted in
another Jeep and was taken to Udaipur by Rajasthan police;
whereas Sohrabuddin and Kausarbi were taken to Ahmadabad
by Gujarat police. Sohrabuddin and Kausarbi were kept in Disha
· · Farm-House near Ahmadabad till 25/11/2005. .

"' ·~
 7 /y:II:J t1

r~· 4 Order below Exh. 912 in

S.C. 177/2013, 178/2013,
577/2013 & 312/2014

6. It is further alleged by the prosecution that on

25/11/2005, Sohrabuddin alone was taken to Arham Farm-

House and thereafter lastly he was taken towards GSB pole
situated between Narol ·and Vishala Circle. Soharbuddin was
killed in a fake encounter in the morning of 26/11/2005 at
about 5:20 am. Mter about 3 days thereafter, his wife Kausarbi
was also killed by police and her dead body wa$ burnt and
disposed of on the river bed near village Illol on 29/11/2005.
Mter about one year there from, more specifically on
27/12/2006, Tulsiram Prajapati was also shot dead by Gujarat
and Rajast.har1 police in a stage ma..11aged encounter near S~rhad
Chap~ on border of State of Gujarat and Rajasthan. Crime no.
115/2006 was .registered by Rajas.than police that Tulsiram .·
Prajapati has been killed in encounter.

7. It is further ·the case of prosecution that both

Kausarbi and Tulsiram Prajapati were killed as they were eye·
witnesses to the abduction of Sohrabuddin.

8. Abdul Rehman (Accused no. 7), a police Inspector ·

of Rajasthan Cadre filed a complaint with ATS Crime Gujarat on
26/11/2005 stating that whil~ Sohrabuddin - the .absconding
accused was coming from Surat by High-way, he was asked to
surrender but he at once opened fire on policemen who were to
apprehend him. In retaliation, the police also opened fire
against Sohrabuddin in which he died. The matter was
investigated by police officer Mr. M.L. Parmar (Accused no. 4)

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order helow
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912 in T Lo

\ S.C. 177/2013, 178/2013,

577/2013 & 312/2014

who found that it was a genuine encounter and filed abate

summary report.

9. It is further alleged by the prosecution that

I

Rubabuddin Sheikh - brother of slain Sohrabuddin, suspected

some foul play in the death of his brother and therefore sent a
letter to the Hon'ble Chief Justice of India requesting to enquire
into the matter of death of Sohrabuddin and disappearance of
Kausarbi. That complaint came to be forwarded to Director
General of Police, Gujarat with direction to enquire into the
allegations a.11d to do t.IJ.e needful. ThA
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Police, Gujarat thereupon asked CID Crime Gujarat, to re-

investigate the matter. Accordingly L""le matter was re-
investigated and charge sheet came to be filed against thirteen
(13) police officials inclusive of this accused/applicant under
section 120-B, 364-A, 302, 201 of IPC.

10. It is further alleged by the prosecution that while

hearing bail petition by the Hon'ble Gujarat High Court it was
found that in the report of P.I. Shri Solanki of CID Crime, there-
appears to be involvement of two more persons and therefore
ultimately those two persons were subsequently added as
accused no. 14 & 15 in the charge-sheet filed by CID Crime.

11. It is further alleged by the prosecution that said

Rubabuddin - brother of slain Sohrabuddin was not satisfied

.. with above course of action and therefore filed a writ petition

bearing no. 6!2007 in - the Hon'ble Supreme -Court with a

~----- ------------------·--- -·------------------~-.-------------------

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7 /zi::£ I r;
6 Order below Exh. 912 in
S.C. 177/2013. 178/2013,
577/2013 & 312/2014

request to direct CBI to re-investigate the case. In view of the

killin-g of said Tulsiram Prajapati in fake encounter, his mother
Narmadabai also filed a writ petition in the Hon'ble Supreme
Court. In order to have fair investigation, the Hon'ble Supreme
I

Court directed CBI Mumbai, to. carry further investigation ,after

taking into _consideration all aspect inclusive of a larger
conspiracy in all three (3) killings. Accordingly, CBI Mumbai
investigated the matter and filed one main charge sheet and
three supplementary charge sheets against total 38 accused.

12. In viev: of invoive111e11-t of MiPJster, High-rapking

police officers in the matter of death of Sohrabuddin, Kausarbi
'
'
..

and Tulsiram· Prajapati, the Hon'ble_ Supreme Court transferred .. ".

. ..·
the trial to this court from CBI court at Ahmadabad, in order to
have fair trial.

13. Accused no. 01/applicant came to be prosecuted in

this case as CBI found his involvement in ·committing crime in
following manner:

1>. The applicant/accused no. 01 was one of the

participant in the encounter of Sohrabuddin. It is
'
po~nted out that in statement of PW -4 Mohd. Azam
(a prisoner at Udaipur jail), it reveal thatJulsiram
while in Udaipur jail told hjm that DIG Vanjara
(applicant/accused no. 01) and S.P. Chudasama ·
induced him (Tulsiram) to obtained whereabouts of
Sohrabuddin by calling him in ATS office at
Ahmadabad and upon obtaming address",, of

-·····-··•-·--·-·----·----~-----~ --·--·---··-··~~~· •·~·~·r-"""'""" ···--""' ·-·-- --

 7 /Xtx_/ 7
~,
7 Order below Exh. 912 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014

Sohrabuddin, they abducted and killed

Sohrabuddin.

n. It is further alleged by the prosecution that

there is sufficient material on record to' establish
conspiracy in killing of Sohrabuddin in a fake
-encounter more particularly when he was having
telephonic conversation with Amit Shah (A-16).
There is also material to point out that accused no.
13 (N.V. Chauhan, police constable) informed to
accused no. 12 (Dr. Narendra Kumar Amin, S.P.)
on mobile phone for elimination of the evidence of
alleged eye-witness Kausar Bi of encounter of
Sohrabuddin and accordingly even Kausar Bi was
killed.

iii. It is further alleged by the prosecution that so

far as the killing of Kausar Bi, there is sufficient
material to point out his involvement more
particularly when material .collected during
investigation reveals that this applicant in fact lit
match.,stick on the dead body of said Kausar Bi
which was kept on the pyre in the bed of river of
village Illol. So far as the killing of .· Tulsiratn
Prajapa:ti, it is contended that this appl1cant was
D.I.G Border Range and he dire<;ted s:P Shri Vipul
Agrawal to call PJ. Shri Ashish Pandya by
cancelling his leave. Ther2 is sufficient material to
.... connect Accused No. 1/applicant in ·the conspiracy
 '7 /Erx~jr

(\ 8 Order below Exh. 912 in

S.C. 177/2013, 178/2013,
577/2013 & 312/2014

hatched along with other police officials namely

Mr. Dinesh M.N. (A-3) (superintendent of Police),
Abdul Rehman (A-7) (Police Inspector), Narayan
Singh (A-26) (A;S.I.), Yudhveer Singh (A-27)
I

(Police Constable) and Kartar Singh (A-29) (Police

Constable) who in a stage managed encounter,
killed the ·Said Tulsiram Prajapati on 27/12/2006
between Raigadh and Shyamlaji at about 3:00 am,
by making a show that said Tulsira Prajapati got
escaped from the Train No. 9944 when Tulsiram
· Prajapati was being taken back from A_hmadal?ad to
Udaipur court to admit him in a jail of Udaipur.

iv. It is further alleged by the prosecution that in

the fake encounter of Sohrabuddin, a Motor-Cycle
was arrap.ged which in fact was of Mr. Shok Singh
Yadav, who is cousin of police constable Ajay Singh
Yadav, a close associate and working as personal
assistant of applicant/accused no. 1. Not only this
there is material to point out that this
applicant/ accused no. 1 along with other police
officials namely, Rajkumar Pandiyan (A-2) SPATS
Gujarat and Dinesh N.M. (A-3) SP, Udaipur were
seen near the place after encounter of Sohrabuddin.
This· further point out that he was a conspirator in
the killing of Sohrabuddin.

14. It is submitted by defence counsel for the

applicant/accused no. 1 that the accused who were descr~ed
 7 /nrl~
9 ..
n Order below Exh. 912 iil
S.C. 177/2013, 178/2013~
577/2013 & 312/2014

and cited as main accused and key conspirator in both

encounters have been discharged as provided under section 227
of the Code of Criminal Procedure and/or the prosecution
against them came to be dropped for want of prior sanction
I

from the Government, as provided under section 197 of Cr. P.C.

So far as this applicant/accuse no. 1 is also concerned there is
no prior sanction from Government to prosecute him and
therefore prosecution initiated against him needs to be dropped.

15. It is further contended that two witnesses namely,

N::1thuh::1 .l::ldP.i::l (PW-1
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retracted from their statement. Not only this one of the co-
accused Dr. S.P. Rajkumar submitted an application to treat
both these witnesses as accused, as per the scope of section 193
of Indian Penal Code; however, it came to be disallowed. This
order of rejection is, however, assailed before the Hon'ble High
Court of Mumbai. The statement of both these witnesses were
also disbelieved by this court while deciding the application
(Exhibit - 606) preferred by accused no. 12 - Narendra Amin.
The evidence of both these witnesses appeared to be evidence of ·
accomplice and without there being any corroboration, it is not .
worth of acceptance. If the evidence of these witnesses stands ·
disbelieve, there is nothing much less worth of reliance on ·
record which would connect the involvement of this ·
..
applicant/accused no.1 either in alleged actual abduction and
killing of Sohrabuddin, Kausar Bi and Tulsiram Ptajapati ..

_________ __,_.... __ ,..._,----~~.~.-....-~...,.,...,.-~-·-

 7/~(;c
(~''.... 10 Order below Exh. 912 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014

16. It is contended that this applicant had never taken

any active part in any of the encounter. It appears that this
applicant came to be charge-sheeted only on the basis of
inte~action on phone with Amit Shah (A-16). Th~ material as
I

regard to call detai_ls placed_ on record in itself does not in any

manner point out finger against this applicant as regard to his
participation in any manner in the killing of said three persons.

17. It is submitted by Ld. Counsel for the

applicant/accused no. 1 that so far as the alleged encounter of
Tulsiram Praiaoati. the onlv material asminst this annlicant
o.l .&. .. ., \ ...... . . .• ~".I. . --

appears that after killing of Tulsirain, one of the co-accused· was

in contact with this applica11t on p~one to discuss as to how FIR
would be drafted. There is no call details to substantiate even
about ·telephonic conversation as alleged against this
applicant/accased no. 1. The material placed on record :·as
regard to call details are nqt prosecutable evidence in . any
stretch of imagination and on this count also applicq.nt/accused
no. 1 is entitled for discharge.

18. It is also urged by the Ld. Counsel for applicant that

there is no material even to point out that Kausar Bi was' in
custody of thls applicant and further that he was concerned in
the killing of Kausar Bi. In fact, there is no material to point out
as to when and where Kausar Bi was kil1ed and further who
actually killed her. The statement of co-accused V.A. Rathod (A-
14) as regard to discovery statement and in absence of discovery
of any fact on the basis of such alleged discovery statement
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 ~~~--~~-------·-----·
7/ XIX /1!
(~', 11 Order below Exh. 912 m
S.C. 177/2013, 178/2013,
577/2013 & 312/2014

would be of no consequence. As regard deputing accused no. 2

(Rajkumar Pandian) to go to Hyderabad by this applicant, that
too in the guise of inquiry to be made in a confidential matter
regarding suicide bomb attack at Hyderabad, will not connect
I_

this applicant that he was a conspirator in the abduction

followed by killing of Sohrabuddin and others. In short, it is
lastly contended by Ld. Counsel for the defence that even on
merit there being no prima facie material against this applicant
to connect him in any manner with the abduction and killi.'lg of
Sohrabuddin, Kausar Bi and Tulsiram Prajapati, he is entitled for
discharS!e.
- The material
- olaced
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applicant had acted in discharge of his official duty and

therefore, if he was to be prosecuted, prior sanction of
Government was mandatory requirement and in absence of such
sanction in this case, prosecution launched against him is
required to be dropped under section 197 of Cr.P.C.

19. I have gone through the case papers including

statements of witnesses more particularly statement of Azam
Khan (PW-4), Rafeek @ Banti (PW-5), Firoz @ Raju (PW-6),
Rajeev Dasot (PW-10), Salim Khan (Pw-35), Sylvestor (Pw-65),
Raman Patel (PW-66), Dasharath Patel (PW-67), Noor Md.
Ghoghari (Pw-79), Mahendrasingh Zala (PW-80), Sh. Gaziuddin
(PW-83), Sh. Misbah Haider (PW-84), Krishriaji Aapte (PW-
100), Amit Aapte (PW-'101), Manjusha Amit Aapte (PW-102),
Nathuba Jadeja (PW-105), Gun,tdayal (PW-106), Bhailal Rathod
(PW-107), K.R. Jadeja - Police Sub Inspecto{ (PW~132),

·Meghjibhai C Maheshwari- police constable (PW-133), Premaji

.-w.. -·
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 7/~/n
,r·. 12 Order below Exh. 912 in
\ .. S.C. 177/2013, 178/2013,
577/2013 & 312/2014

Cham (PW-144), Madhubhai Bandiyawala (PW-145), Nathabhai

Malade (PW-146), Sajan Nagabhai Odedara (PvV-147),
Chandrasingh Rajput (PW-148), Girish Patel (PW-149),
Gurbatsingh Sardar (P\Iy-153), Kantisingh Cauha (PW-154),
I
Allarp.kha @ Kalumiya (PW-155), Kalpeshbhai Vaghelq (PW-
156), Irfanbhai Ghanchi (PW~157), VA Rathod (PW-162/A014),
Jahir Abbas Ghanchi (PW-188), Murtaza Khan (PW-194), A.M.
Patel- PI (PW-230) and Mayur Chavda- Probationary Dy. SP
(PW-237) and Nodal Officer (PW-288,289,290). I have gone
through the documentary evidence viz. Panchanama prepared
on 01/05/2007 in respect of pointing out by Nathuba Jadeja,
PCP the place at Illol where dead body of Kausar Bi was burnt
(D~35); Panchanama dated 26!04!2007 in respect of seizure of
.Video Cas.sette containing rec?rdings of statement of Nathuba
Jadeja,.wimess (D-48); docu~ents regarding Qualis Vehicle ·co-
54}; Letter No. DC4/2055-Police/2007-08/01w/ro/191 dated
22/06/2007 addressed to Addl. DGP, Crime I, CID, Gandhiflagar
from Sr, Accounts Officer/DC-4, 0/o. A.G. (A&E) Rajkot (D-66);
letter dated 21/06/2007 of Shri V.A.. Rathod (D-114) and
Disclosure Memo dated 23/05/2010 prepared by Shri Navin
Soni, PI,- CBI, SIT, Gandhinagar on the disclosure made by Shri
VA Rathod in presence of two wimesses while in police custody
(D-129); CDR of 9426233679 of Shri VR Rathod (D-149);
weekly dairy ()f VA Rathod for period 27/1i)2005 to
03/12/2005 (D-"155); and CDR (D-281) as mentioned in the
argument submitted by prosecution. I have also gone through
the citations referred by the parties.

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7/ 'VY-- {n
(~'·
13 Order below Exh. 912 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014

20. To substantiate his argument, Ld. Counsel for the

applicant prayed to consider the rulings relied upon by this
court while deciding discharge of other co-accused. As against
this, Ld. Prosecutor placed reliance on rulings in the case of
I

a. State of Bihar V/s. Ramesh Singh 1977 Cri. L.J.

1606 (1);
b. State of Kama taka V/s. L. Muniswamy & Ors. 1979
Cri. L.J. 1125 (1);
c. Union of India V/s. Prafulla Kumar Samal i 996 Cri.
L.J. 154 (1);
d. State of Maharashtra V/s. Somnath Thapa 1996
Cri.L.J. 2448;
e. State of Orissa V/s. Debendra Nath Padhi ~AJR 2005
sc 359;
f. P. Vijayan V/s. State of Kerala 2010 Cri. L.J. 1427;
g. Rukman.i Narvekar V/s. Vijaya Satardekar AIR 2009 ·
sc 1013;
h. Shoraj Singh Ahlawat & Ors. V/s. State of U.P. &
Ors. 2013 Cri. L.J. 331;
1. Om Prakash & Ors. Vs. State of Jharkhand 2012
Supreme Court.

21. First of all it would be worthwhile· to consider the

scope of section 227 of Criminal Procedure Code. For this
purpose it is better to have a glance to the said provision which
reads as under:

"I.t upon
. the consideration of the record .of .the ·
case, and documents submitted therewith~ after
hearing· submissions of the accused· and the
prQsecution in that behalf, the judge considers. that,
. there is not sufficient ground for proceeding against
the accusetL he shall discharge the accused and
· record his· reasorzs for so doing."· ...
 I
7/r IX /11
0 14 Order below Exh. 912 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014

22. It is not necessary to note each and every ruling

while deciding the application in hand, more particularly when
ratio held in citations referred to are elaborately discussed and
dealt with any one of the citation.

The Hon'ble Apex Court in the matter of Century

Spinning and Manufacturing Company V/s. State of
Maharashtra (1972) 3 SCC 282 considered the scope of
section 251 (A) Cr. P. C 1898 (old code), now section 239 of the
Cr. P. C. It is observed in para.17 that:

"'the order '-"J nf

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fr.nrnjna- rhnra-o
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substantially affects the person's liberty and it is riot

possible.to countenance theview that the Court must
automatically frame the charge merely because
·" /

the prosecuting authorities, by r~lying on

documents referred to in section 173, considers it
proper to institute the case, The responsibility of
framing charges is that of the Court and it has
to judicially consider the question of doing so.
Without fully adverting the material on rec;ord,
it must · not blindly adopt the decision of the
prosecution. "

The scope of sec.227, Cr.P.C. was considered by Hon'ble

' . '
Supreme Court in the ruling {,Jnion of India v/s Prafulla
Kumar Samal( (1979) 3 SCC 4). It was held that,

"the words 'not sufficient grounds for

proceeding against the accused' clearly shows that
the judge is not a mere post office to frame the
charge at the behest of the prosecutiorz, but, he has
to exercise his judicial mind to the facts of the case
~-
 7 jXIZ--/iS
r. 15 Order below Exh. 912 in
S.C. 177/2013, 178/2()13,
577/2013 & 312/2014

in order to determine whether a case for trial has

been made out by the prosecution. In assessing this
fact, it is not necessary for the Court to enter into
pros and cons of the matter or into weighing and
balancing the evidence and probabilities which is
. I
really his function after the trial starts. At the stage
of section 227, the judge has merely to sift the
evidence in order to find out whether or not, there is
sufficient ground for proceeding against the accused.
The sufficiency of the ground would take within its
fold the nature of evidence recorded by the police or
the documents produced before the Court which Ex
Facie disclose that there are suspicious circumstances
rurrr;r>ct- t-ho rrrr11corl t-r. .r:rn.,...,o t-hn rhn..-rrn
\..L6\..LLILo.JL LIL""' \.A.\,...\.o<UU\...o\..oL LV j l \.Lilt\...< LII..L LILU1(5L•

It has further been held by the Apex Court that,

"The scope of section 227 of the code was

considered by a recent decision of this Court. In the
case of State of Bihar v/s Ramesh Singh, the Court
observed as follows: Strong suspicion against the
accusecL if the matter remains in the region of
suspicion, cannot take pale of proof of his guilt at
the conclusion of trial. But., if at initial stage there
is a strong suspicion, which leads the Court to think
that there is ground for presuming that the accused
has committed an offence, then it is not open to the
Court to Say that there is no sufficient ground of
proceeding against the accused. The presumption of
the guilt of the accus~d which is to be drawn at an
initial stage is not 'in the sense of the law governing
trial of criminal cases in France, where the acclised·
is presumed to be guilty unless the contrary is
proved. But It is only for the purpose of deciding
. prima-facie whether the Court should proceed with
the trial or not. If the evidence which the prosecutor
proposes to adduce to prove the guilt of the ac,cused,
\

---···-------- --- ______ _...___ ,_ ···-------·--------· -------..,..-'---;----.-.-.~-:--.-.-.-.-------··

 16
71 EJY,_ /t6
Order below Exh. 912 in
0: S.C. 177/2013, 178/2013,
577/2013 & 312/2014

even if fully accepted before it is challenged in cross

examination or rebutted by the defence evidence, if
any, cannot show that the accused committed the
offence, then there is no sufficient ground for
proceeding with the trial. This Court has thus held
that, whereas strong suspicion may not take place of
proof at the trial stage, yet it may be sufficient for
the satisfaction of the Sessions Judge to frame
.Y-
the charge against the accused."

In the case of P Vijayan v/s State of Kerala (2010 Cri.

L.J. 1427 (SC)), the Hon'ble Apex Court while considering
the scope of section 227 ofthe Cr. P. C. observed that,

"If two views are

. -
possible and one of them
,gives rise to suspicion only as distinguished from
grave susp~icion, the trial judge is empowered to
discharge the accused and at this stage he is
not to see whether trial will end in conviction or
acquittal"

In the recent ruling in case of Shoraj Singh Ahlawat &

Ors.~ V/s. State of U.P. & Ors. 2013 Cri. L._J. 331 the Hon'ble
. .. . .
Apex Court took note of almost all rulings on this subject and
sucCinctly stated the following principles as guidelines.

'To the same effect is the decision of this court in Union

•
of India Vs. Prafulla Kumar Samai and Anr. {1979) 3 sec 4:
(AIR 1979 SC 366), where this Court was examining a similar
question in the context of Section 227 of the Code of Criminal
Procedure. The legal position was summed up as under:

Thus, on a consideration of the authorities' mentioned

above, the following principles emerge:
·.:;.._
 7{l<t1S[t7
;s"..,
(..
17 Order below Exh. ~ 12 in
S.C. 177/2013, 178/2()13,
577/2013 & 312/2014

1) That the Judge while considering the

question of framing the charges under Section 227
of the Code has the undoubted power to sift and
weigh the evidence for the limited purpose of
I

finding out whether or not a prima facie cae against

the accused has been made out:

2) Where the materials placed before the Court

disclose grave suspicion against the accused which
has not been properly explained the Court will be
fully justified in framing a charge and proceeding
with the trial.

3) The test to determine a prima facie case

would naturally depend upon the facts of each case
and it is difficult to lay down a rule of universal
application. By and large however if two views are
equally possible and the Judge is satisfied that the
evidence produced before him while giving rise to
some suspicion but grave suspicion against the ·
accused, he will be fully within his right to··
discharge the accused.

4) That in exercising his jurisdiction under

Section 227 of the Code the Judge which under the .
present Code is a senior and experienced Judge ·
cannot act merely as a Post Office or a mouth~piece

of the prosecution, but has to consider the broad

probabilities of the case, the total effect of the
evidence and the documents produced before the
~ .
¥.
 .......... ..:.o.·~..!L-......-~ ....~~~~--- ·-··· •• ·.- . .:.-:•·-·····'' ····>l:-.-:;.1.;.-;·.

~--
71 LlX- 1l,g-
(r-~- ·.
18 Order below Exh. 91:,: in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014

Court, any basic infirmities appearing in the case

and so on. This however does not mean that the
Judge should make a roving enquiry into the pros
and cons of the matter and weigh the evidence as if
I

he_was conducting a trial.'

23. If we analysis the allegations of prosecution, it can

be •divided in two parts viz. i) allegations as to abduction of

Sohrabuddin, Kausar Bi and/or Tulsiram Prajapati, jointly by

Gujarat and Rajasthan police and ii) the stage managed
encounter ofSohrabqddin besides murder of his wife Kausar Bi.
The prosecution has based its case as regard to the allegations
referred to above mainly on the statements of Patel brothers,
statement of PW -105 (Nathuba Jadeja) and PW:lo6
(Gunidayal Singh).

24~ Let us now consider the statement and material on

record. hi. statement of PW-4 Mohd. Azam. (a prisoner at
Udaipur jail), it reveal that Tulsiram while in Udaipur jail told
bini that. DIG Vahjara (applicant/q.ccused no. 01) and S.P.
Chudasama induced·him (Tulsiram) to obtained whereabouts of
Sohrabudd1n by calling him in ATS office at Ahmadabad and
'
upon obtaining address of 9ohrabuddin, they abducted and
killed ·Sohrabuddin. It is to be noted here that _}1e along with
. Tulsiram Prajapati were accused in the murder of Hamid Lala.
They had cordial relations inter se. It is not dear from his
statement as to when such statement was made by Tulsiram
Prajapati. It is also not dear from his statement that he at any
point of time whispered about information said to :Qave been

----~~---~------· -------- ··-···. ~--------- ··---~----- ..

 7 /XL:C ;,,
(~. 19 Order below Exh. 912 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014

given by Tulsiram Prajapati to him. Details of information said

to have been given to him about stay of Sohrabuddin does not
find place in his statement. There is also no iota of material in
his statement to suggest that Tulsiram Prajapati had informed
. I

this applicant/accused no. 1 that Sohrabuddin has gone or

intended to go to Hyderabad. In short, there is no link to
establish that Tulsiram Prajapati has informed this applicant
about the fact that Sohrabuddin had gone to Hyderabad and
accordingly Sohrabuddin, his wife and Tulsiram Prajapati were
abducted. His statement is not even corroborated by auy other
reliable piece of evidence. The story put forth by prosecution
that Tulsiram Prajapati was taken into confidence and police
then solicited information as regard to whereabouts of
Sohrabuddin and thereafter he was abducted is not worth of
credence even from the face of record.

25. PW-6 (Firoz @ Raju S/o. Akthar Ahmed) stated

that Tulsiram Prajapati used to say that he will take revenge
from police. He has not stated that he was informed at any point
of time by Tulsiram Prajapati that applicant and other police
official took him in confidence and obtain whereabouts of
Sohrabuddin. This witness was also in jail along with Tulsiram
Prajapati. PW- 65 (sylvestor S/o. Daniel) stated that Tulsiram
Prajapati told hiin that Police Inspector Chudasama . falsely ·
induced him to know whereabouts of Sohrabtiddin. Details of
whereabouts of Sohrabuddin said to have been informed to
police is not stated much less on such information of Tulsiram
Prajapati, the said Sohrabuddin was apprehended and was then

··--·----~------··- - ·--·--·-···---·-- ·----- ···-------- ----

 . I
?/~;}~
(~ 20 Order helow Exh. 912 in
\,·_: __ ,: S.C. 177/2013, 178/2013,
577/2013 & 312/2014

abducted. It will be worthwhile to mention here that his

statement does not point out about any role played by this
applicant in either inducing and soliciting whereabouts of
Sohrabuddin and thereafter his abduction. PW- 35 (Salim Khan
I

-Advocate) stated that he was representing Tulsiram Prajapati

in Hamid Lala's murder case. His statement does not connect
this applicant in inducing Tulsiram Prajapati in soliciting
whereabouts of Sohrabuddih followed by alleged abduction of
Sohrabuddin and others. The statement of PW- 5 (Rafeek @
Bunty) is here-say based on the alleged information given to
him bv deceased Tulsiram Praianati. There is no other
• . -J £

corroboration to his statement. Such here-say evidence is nQt

admissible in such circumstance,_ more particularly when the
informant is no more. Besides,· he has not stated details about
whereabouts of Sohrabuddin given to police. A casual statemerfC
that whereabouts of Sohrabuddin was given without any basiS .
would be of no consequence.

26. Thus, the evidence on the point of involvement of

this applicant/ accused .no. 1 inducing. Tulsiram Prajapati in
·.

obtaining whereabouts of Sohrabuddin followed by his

abduction as alleged by the prosecution is not prima facie
substantiated.

27. The prosecution relied on Letter No. DC4/2055-

Police/2007-08/0lw/ro/191 dated 22!06!2007 addressed to
Addl. DGP, Crime I, CID, Gandhinagar from Sr. Accounts
Officer/DC-4, 0/o. A.G. (A&E) Rajkot (D-66). It contains a fact
.,,
 • .-.-• --~<••·_,_ ... _, ; •. OL ........._ ..... _..~ . . . .-, • • • •> ~ • • •· • _. • _,_._, ·•'-" •• --• • ·' • o ,,., •

7 /:BtX' ('-I
r~
21 Order below Exh. 912 in
S.C. 177/2013, 178/2()13,
577/2013 & 312/2014

letter from this applicant to Addl. DGP seeking permission to

send S.P. Rajkumar Pandian (A-2) to Hyderabad in connection
with suicide bomb attack in Hyderabad. This document
establishes that t.his applicant sent his subordinate officer to
I

Hyderabad in the guise of confidential work. This document, in

fact, establishes the fact that while issuing this letter, applicant
acted in discharge of his official duty. Prima facie, this,
document is not helpful to the prosecution much less to
establish alleged conspiracy against applicant.

28. According to the prosecution, a team of police

officials headed by Dr. Rajkumar Pandian (A-2) had been to
Hyderabad. The statement ofwitilesses namely: PW-144 (Premji
Cham), PW- 145 (Madhubhai), PW-146 (Nathabhai), PW-147 .
(sajan), PW- 148 (Chandrasingh), PW-105 (Nathuba), PW-106
(Gurudayal) point out that Qualis and .Sumo vehicles were ·
taken to Hyderaqad by the said police party. What could be
gathered from statement on record is that oil 18/11/2005;
Rajkumar Pandian (A-2) had requested PW-144 (Premjibhai) to
give him Qualis Jeep bearing no. GJ-25/A-7007. PW-145
(Madhavbhai) stated that he came to know from his driver (PW-
147 - Malde) that the Qualis Jeep had returned back to
Ahmadabad at 8:00 pm ori 23/11/2005. On the b?sis of such,
statement, prosecution wanted this court to draw inference that·
Mr. Pandian (A-2) arranged the said Qualls Jeep to go to
Hyderabad. It will not be out of place to mention here that
prosecution (CBI) itselfcollected evidence to show that prior to
· 24/11/2005, the said Qualis Jeep was lying in authorized
 I j
7/~{2-2-
, I
f~\ 22 Order below Exh. 912 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014

service centre of Toyata by name M/s. Infinity Cars at

Ahmadabad. It is further to be noted that key witnesses namely
PW-105 (Nathuba) and PW-106 (Gurudayal) did not state that
this Qualis Jeep was with them in which Sohrabuddin and
I
others were brought to Ahmadabad. On the contrary, there is
sufficie'nt evidence on record to indicate that Mr. Pandian (A-2)
used the vehicle of Andra Pradesh passing when he visited
Hyderabad. Thus, the evidence that Mr. Pandian (A-2) arrange
Qualis Jeep to go to Hyderabad is not prima facie worth of
reliance.

29. PW-83 (Sheikh Gaziuddin Chabuksawar), a cleaner

,_,,.-.

in the bus of M/ s. Sangeeta Travels stated that police persQn~··· _

made·to stop
. the bus at about 1:30 hour .on 23/11/2005 when it
left Zahirabad. Police personals order the driver to switch on the·
light of the bus. One person and his companion lady passenger
. in burkha were asked to get down. Another passenger was also
taken in custody by police. He has not whispered about names
of those passengers and police personals much less against this
applicant.
. '
Same is the statement of PW-84 (Misban Haidar),
.' .
driver of the said bus.

30. PW-100 (Sharad Aapte), who was proceeding in

the said bus of M/s. Sangeeta Travels stated that in the night
between 22/11/2005 and 23/11/2005 police personals in civil
dress made the said bus to stop and there from two persons and
a lady in burkl.a were taken in custody. He has not referred the
name of any of the police personals and those two persons and
·.;,..,
 /~ 23
I
7 p l X /Z-3
Order below. Exh, 912-.-in--
1:· ,
S.C. 177/2013, 178/2013,
577/2013 & 312/2014

lady in burkha. His previous statement was also recorded in

which he did not whisper about identification of police officials
and the persons who were asked to get down from the bus.
Same is the statement of P\V-101 (Amit Aapte) and PW- 102
(ManjushaAapte).

31. PW- 105 (Nathuba) and Pw- 106 (Gurudayal) were

drivers of ATS Ahmadabad. Both these witnesses in their
statements firstly before CID crime recorded on 04/04/2007
and thereafter before CBI, recorded on 11/05/2010 stated that
on 22/11/2005, they along with Police Inspector - Dabhi, Police
Sub Inspector - Ajay Parmar, had gone to meet Rajkumar
Pandian (A-2) at IPS officer's mess Hyderabad. Thereafter Ajay
Parmar went to airport to book ticket for Mr. ·Pandian to go to
Ahmadabad. These witnesses further stated that at 7:00 pm they
along with Mr. Pandia, Mr. Dabhi, Mr, Shantaram and two
unknown persons started chasing one luxury bus. P.C. Nathuba
was driving the Qualis Jeep. At 12:00 mid night, the luxury bus
was made to stop on high way. Mr. Pandian, Dabhi and others
alighted from his Jeep. They went towards luxury bus and
brought two men and one female and thereafter they came to
Ahmadabad by overnight journey. These witnesses further
stated that the person who was made to sit in Tata Sumo was
taken towards Rajasthan whereas one male and lady in his Jeep
was taken to Ahmadabad. It· is pertinent to bear in mind that
evidence of both these witnesses is that of accomplice. They
both drove private vehicle in which the abductors were allegedly
brought. They did not. make entry of their outstation journey in
station dairy. The office attendance register points out their
..
 ~--·-·-"·· .. ~.~4~·.'~"-..._~.... :r ............ ···-·. •.!..o.!J.!." ,, .. .

~.1
r·· 24
7
Order below Exh. 912 in
I )l_LL r 7 y
\;.· '
'--
S.C. 177/2013, 178/2013,
577/2013 & 312/2014

attendance from 21/11/2005 to 25/11/2005. This fact will

brush aside their entire story about alleged abduction.

32. PW-105 (Nathuba) and PW-106 (Gurudayal) filed

I
affidavits in the court atAhmadabad on 22/05/2005 itselfthat
they do not want to give any statement: They were implicated as
accused. They filed anticipatory bail application, however, order
was not passed on bail application. Their statements were
shown to be recorded on 26/05/2007. They again retracted
from their statements. Their statements were recorded afresh by
CBI in October 2010. They again made statement by filing
affidavit before CBI court, Ahmadabad stating that they did not
give any statement to CBI and
·.·
further that their statements
··;:···. .

before Ld. Magistrate were recorded under the threats.

Interestingly, their statements recorded in 2007 and ther~after ·
in the year 2010, are almost ad-verbatim. It is further interesting
to note that in their statements recorded in 2010, they gave
exact date, time of incident in precise manner which they had
not stated in thejr statement to CID crime in 2007. This prima
facie points out the fact that they have deliberately exaggerated
the prosecution case merely on the say of CBI.

33. It will be apparent from their statement that they

are accomplice, however, prosecution has not- made them
accused and treated them as witnesses. Even though they are
cited as witnesses still in absence of corroboration to their
stacements, their evidence/statement is not prima facie worth of
credence.
"'..
~ 25
7 lz
1 x" / 7-
Order below Exh. 9J2·in
s
\ ...
S.C. 177/2013, 178/2013,
577/2013 & 312/2014

34. As against this, there is documentary evidence

which will falsify statement/evidence of ·these two witnesses.
CBI during investigation collected evidence to establi$h that Mr.
Pandian (A-2) travelled from Hyderabad to Ahmadabad oh
23/11/2005 by Indian Airlines International flight no. IC-563.
This international flight had taken-off from Hyderabad airport at
7:00 pm. PW- 198 (Simanta Bordoi - Traffic Assistant), then
working with Indian Airlines Hyderabad Airport provided a list
of passengers who boarded in the said plane on 23/11/2005 at
17:50 hours. A perusal of said list will point out that Rajkumar
Pandian (A-2) was one of the passenger. PW-99 (M.S.
Shivraman) stated that on 23/11/2005, passenger by name
Rajkumar Pandian (A-2) made declaration in presence of
Custom Officer that he did not carry goods of foreign origin and
cash more than Rs. 5,000/-. These documents prima facie
establish that on 23/11/2005 at 7:00 pm Mr. Pandian left
Hyderabad to go to Ahmadabad by said airlines. This piece of ..
evidence will take away the prosecution story to its extreme
extent to say that Sohrabuddin was abducted by said police
officer and was brought to Ahmadabad by over-night journey. If
these witnesses make such false and baseless statement wit.lJ.
·only ulterior motive . to implicate any police officer then ·the
evidence/statement of such witnesses needs tO be thrown away .
for all respect inclusive of alleged conspiracy of applicant in
abduction of Sohrabuddin, Kausar Bi and Tulsiram :Prajapati.

- --~-~-·-·-- -- -- -----------·---------
 26
7
Order below Exh. 912 in
/zrr:- (t6
(0:
S.C. 177/2013, 178/2013,
577/2013 & 312/2014

35. To sum up, it is seen from the entire record of the

case that there is no sufficient evidence on facts to indicate that
there was meeting of minds in between the Applicant/accused
and the other co-accused to abduct and then to kill
I

Sphrabuddin, Kausarbi and/ or Tulsiram Prajapati. The CBI

mostly relies chiefly on the statements of witnesses which are
hearsay in nature, which witnesses just state f9-cts which they.
have learnt from the other co-accused and some-where else.
Even the statements of co-accused do not in any way directly
implicate the Applicant/accused to the fake encounters.

36. Section 10 of the Indian Evidence Act, 1861 allt?,_~s

the Court to consider co-accuseq's statements about· conspirc:-cy

only as a corroborative piece of evidence; provided that by way
of legal evidence it is shown that there was an agreement ·in
between them to carry an illegal act or a legal act by illegal
means. It would be proper to reproduce Section H> of the
Indian Evidence Act, 1861, which reads as under:

ulO. Things said or done by conspirator m

· reference to common design ~

Where there is reas(mable ground to believe

that two or more persons Have conspired together to
commit an offence or an actionable . wrong,
anything saicL done or written by any one of such
persons in reference to their common intention,
after the time when such intention was first
entertained by any one of them, is a relevant fact as
against each of he persons believed to be so
conspiring, as well for the purpose of proving the.,_

--~--- -·---------·-·--" --·--·------~------~·- ·'· .._.,...

_,"''"~~--- --·····~·-·
 7/nrJ~T
/.'·.-)
27 Order below Exh. 912 in
S.C. 177/2013, 178/2()13,
577/2013 & 312/2014

existence of the conspiracy as for the purpose of

showing that any such person was a party to it."

37. The scope and applicability of this section is

I .
considered by the Hon'ble Apex Court in !he case of Stat:e of
Gujarat V/S Mohammed Atik ((1998) 4 SCC 351), where the
Hon'ble Apex Court states in para 13:

"We have to see the amplitude of the

expression "in reference to their common intention"
as used in section 10 of the Evidence Act. It was once
considered that the expression is as good as saying
"in furtherance of the common intention". Almost
seven decades ago a Full Bench of the Patna High
Court had held it like that in Indra Chandra Narang
v. Emperor

"The object of this section is merely to ensure

that one person shall not be made responsible for the
acts or deeds of another until some bond in the
nature of agency has been established between them
and the act, words, or writing of another which it is
proposed to attribute vicariously to the person
charged must be in furtherance of the common
design and afte,r such design was entertained. "

It is further observed in para 14 that:

"But a
three-Judge bench of this Court in
Bhagwan Swarup Lal Bishan Lal v. State of
Maharashtra said that the expression ("in reference
to their common intention'') is wider than the words
"in furtherance of their common intention" and is
very comprehensive and it appears to have been
designedly used to give it a wider scope than the
..-.
words "in furtherance of' in the English law. Even if
•
•

·-·. ·--- ·---------- --·---.···-

 7/~ht
r·
'.
28 Order below Exh. 912 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014

it is wider, would its width go beyond the period of

conspiracy? It is well-nigh settled that Section 10 of
the Evidence Act is founded on the principle of law of
agency by rendering the statement or act of one.
conspirator binding on the other if it was said I

during subsistence of the common intention as

between the conspirators. If so, once the common
intention ceased to exist any statement made by a ·
former conspirator thereafter cannot be regarded ·as
one made "in reference to their common intention".
In ot;her words, a post-arrest statement made to a
police officer, whether it is a confession or otherwise,
touching his involvement in the conspiracy, would
+-!...... ....,.,:....., h.;+- -C """,..,.hr..-" 111 L'"'r..f +-J..n
not fall within UU;. UUlUiL Vj .:>1;-l.-LlVIL ..J. V V) j.IL!;.

Evidence Act. "

38. . .In Yogesh alias Sachin Jagdish Joshi v/s State of

Mahara8htra
.·
((2008) 10 SCC 394), it has also been. held that:
. . ' \

('By an(l large, however, if two views are

equally possible and the Judge is satisfied that the
evidence produced before him gives rise to suspicion
only as distinguished from grave suspicion, he will
be fully wit~in his tight to discharge the accused. At
this stage, he is !7-0t to see as to whether the trial will
end ·in conviction. or not."

It has further been held that:

"The well-known rule governing.

circumstantial evidence is that each . and every
incriminating .··circumstance must be clearly
established by reliable evidence and 'the
circumstances so proved must form a chain of events
from which the only irresistible concluSion about the .
.::...
 .. ..
···-~····· ~~~ .............. -"'-"-'~--......~ ....... ,., ········-·--· -- __,,,~,, ....

7/Zf_l<=- {'t?
~·
~~ ·. :
29 Order below Exh. 912 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014

guilt of the accused can be safely drawn and no

other hypothesis against the guilt is possible."

39. In Saju v/s State of Kerala ((2001) 1 SCC 3 78),

I . .
while considering the scope of section 10 of the Act, it has been
held that:

'This section mainly could be divided into

.two: the first part talks of where there is reasonable
ground to believe that two or more persons have
conspired to commit an offence or an actionable
wrong, and it is only when this condition precedent
is satisfied that the subseauent vnrt nf thP. .t\P.r.tinn.
J -. ·-- --L---·--.~:---- -J -----------

comes into operation and it is material to note that

this part of the section talks of reasonable grounds
to believe that two or more persons have conspired
together and this evidently has reference to section
120-A of the IPC, where it is provided' when two or
more persons agree to do, or cause to be done'."

40. In view of the above plinciple of law as stated by

the Apex Court in the rulings cited supra, if the facts of this case
and evidence on record on the point of involvement of this
applicant /accused no. 1 in abduction of Sohrabuddin, Kausar Bi
and Tulsiram Prajapati are to be considered which are
elaborately discussed in the foregoing paragraphs, I am of. the
view that there is no prima facie sufficient material against this
applicant/accused no. 1.

41. The prosecution came with a case that after.

'"'.
abduction of Sohrabuddin, his wife Kausar Bi and Tulsiram
~
 7)~{Jo
~- 30 Order below Exh. 912 in
·-··. S.C. 177/2013, 178/2013,
577/20l3 & 312/2014

Prajapati, they were brought to Ahmadabad, where from

Rajasthan police took custody of Tulsiram Prajapati. Who had
taken custody of Tulsiram Prajapati is not brought on record
during investigation and thus there is a lacuna on material fact.
I

According to prosecution Sbhrabuddin was taken to Disha farm

house near Ahmadabad till 25/11/2005.

42. It is further alleged · by the prosecution that on

25/11/2005, Sohrabuddin alone was taken to Arham Fann-
House and thereafter lastly he was taken towards GSB pole
situated between Narol and Vishala Circle. Soharbuddin was
killed in a fake encounter in the morning of 26/11/2095. .at
about 5:2(),am. After abo·ut 3 ~ays thereafter, his \\rife Kausarbi
was also killed by police and her dead body was burnt and
disposed of on the river bed near village Illol on 29/11;.2605.
After about one year · there from, mote sp~cifically · · on

27/12/2006, Tulsiram Prajapati was also shot dead by Gujarat

and Rajasthan .police _in a stage managed encounter near Sarhad
Chapri on border of State of Gujarat and Rajasthan. Crime no.
115/2006 was registered by Rajasthan police that Tulsiram
Prajapati has been killed in encounter.

43. To substantiate allegations as regard to alleged fake

encounter of Sohrabuddin, prosecution has mainly relied upon
the statement of PW-105 (Nathuba Jadeja) and PW- 107
(Bhailal Rahtod). According to PY./- PW- 107 (Bhailal Rahtod), a
'
driver in Maruti Fronti, on 26!11!2005 at about 2:30- 3:00am
he took M.L. Parmar (Dy.S~P.), Shri Dabhi (P.I.), Ajay
.,_ Parmar

--------------- ________ .... _,.

 7}-zJI:/3!
p. 31 Order below EY..h. 912 in
\.
S.C. 177/2013, 178/2013,
577/2013 & 312/2014

(Police Constable) in the said vehicle bearing no. GJ-18/G-1816,

to 'Koba Circle' near Arham Farm House. After 10 minutes:. PSI
Choube and two persons (one of them was probably police
constable and another person had covered. his face by
I

handkerchief) reached there. Dy.S.P. Parmar got down there

whereas PSI Choube and those two persons seated on the back
side seat of Maruti Fronti. They then reached up to Narol Circle
and thereafter proceeded towards Vishala, where as per
direction of Dy.S.P. Parmar Maruti Fronti was stopped. He
thereafter took the vehicle 50-60 Gaj away from that spot in the
mean while another vehicle reached t.here, however> he does not
know who were present in that vehicle. After some interval he
heard sound of firing. Thereafter on the say of P.I. Dabhi, he
took Maruti Fronti, however, another vehicle had already left
the spot. He noticed that a motor cycle was found lying on the
spot near electric pole and a person having bleeding injuries was
also found lying riear the spot. That injured person was taken in
the vehicle and was reached to civil hospital. He has not
whispered that he had occasioned to see encounter of
Sohrabuddin with his naked eyes. He has not even stated about
presence of applicant at the spot. Therefore, the statement of
this witness prima facie does not connect applicant as regard to
· .. his involvement in alleged fake encounter much less even as a
conspirator.

44. PW-105 (Nathuba Jadeja), a police constable driver

stated that on 25/11/2005 at auout 1:30 - 2:00 am, he was
. . . .
....\ . driving a Maruti Fronti. Police Inspector· Dabhi was seated in
~
 I I_ziL-/, 1--
r,Y""·.
I •· ·' 32 0rder below Exh. 912 in
S.C. 17'7/2013, 178/2013,
577/2013 & 312/2014

front seat whereas three officers of Rajasthan police seated on

the back seat of the car. Vehicle was taken as per direction of
P.I. Dabhi from Narol Circle to Vishala Circle where all the four
police officials got down. In the meanwhile· another Maruti
I

Fronti came from Narol Circle and stopped near electric pole.
One Bhailal (PvV-107) was driving that Maruti Fronti. Persons
present in that Maruti Froriti alighted. After some interval he
heard firing sound. In the Fronti of driver Bhailal (PW-107),
wherein Dy;S.P. Parmar and police inspector Dabhi were
present, one seriously injured person was taken to hospital. He
further stated 'at this place, Vanjara Saheb, Pandian Saheb, S.P.
Udaipur, Choube Saheb, Shantaram Sharma and S.P. of Udaipur
who came i_nto my Fronti, we~~ seen'. Thus, according to this
witness Vanjara saheb (this applicant) was seen for the firs~ time
- \

by this witness at the hospital. He has not whispered anything

against this applicant involving him in alleged fake encounter of
Sohrabuddin much less even as ;;t conspirator. Even assuming
that this witness wanted to say presence of appl,icant neat the
place of fake encounter that is to be read between the lines that
this applicant did not reach to the spot even in the vehicle which
was being driven by driver Bhailal (PW-107). As per both
witnesses namely PW-105 (Nathuba Jadeja) and PW-107
:(
(Bhailal) only two Maruti Fronti reached to the spot. Both these
--·-

witnesses did not whisper about presence of applicant in those

two vehicles. They have not even stated that any other vehicle
than these two Maruti Fronti reached to the spot. A careful
scrutiny of the statement of PW-107.(Bhailal), it will reveal that
prior to the time his Maruti fronti reached to the spot there was
.,.
 7/XTK./33
(7) 33 Order below E:1ch. 912 in
<~ S.C. 177/2013, 178/2013,
577/2013 & 312/2014-

no other vehicle present. This is inconsistent with the statement

of PW-105 (Nathuba). Further PW-107 (Bhailal) stated that the
persons who reached to the spot in another Fronti, alighted but
he specifically stated. that he does not remember their number
I

and their identity. He also stated that prior to the time he reach
near the spot after encounter, on the call of Mr.Dabhi (P.IL the
other vehicle had already left the spot. He has not stated
presence of applicant along with Pandya (S.P.) and S.P. Udaipur
at the spot. In short, in such circumstance presence of Vanzara
(this applicant) at the spot therefore in absence of any specified
statement about details as to when and how applicant reached
there, is not worth of acceptance.

45. Thus as regard to the alleged fake encounter of

Sohrabuddin there· is no even prima facie material against this
applicant to point out his involvement in any manner. Even
otherwise, the evidence of accomplice PW-105 (Nathuba Jadeja)
is not worth of credence as elaborately discussed above. The
statement of this witness also does not find any corroboration to
connect applicant in alleged fake encounter ofSohrabuddin.

46. Now coming to the story of prosecution as regard to

killing of Kausar Bi, it is alleged that she was also abducted
along with her husband Sohrabuddin and Tulsiram Prajapati
from bus of M/s. Sangeeta Travels .at about 1:30 am between
night of 22/11/2005 and 23/11/2005~ Since then Kausar Bi was
in custody of ATS Ahmalabad. She was kept in Disha Farm. It is
also alleged by the prosecution that she wa.s killed and her dead
\
.
 7/X-tC/sf
(~~ 34 Order below Exh. 912 in
·, -~~-~;· S.C. 177/2013, 178/2013,
577/2013 & 312/2014

body was taken to the bed of river at village Illol, where her
dead body was kept on wooden pyre and applicant then burnt
her to ashes. The dead body was taken in a jeep. Wooden
stumps/hey were collected from the nearby place by all police
I

officials and while bringing the same in auto, it stuck into the
sand of river bed. A crane was arranged for removing stuck
tempq. Firewood. was brought in a matador. Ultim,ately, because
of stuck of auto into the sand, they arranged firewood at that
place and kept the dead body of Kausar Bi and lit match-stick.

4 7. To establish prosecution story, prosecution has

relied on the statement of PW-105 (Nathuba Jadeja), PW-1~2.

(Vijaykumar Rathod, A-14), PW~}56 (Kalpesh bhai), PW-157-

(Irfan Bhai), PW-188 (Zahir Abbas), PW-153 (Gurbatsingh),
PW-154 (Kanti Singh), PW-15~ (Allarkha: @ kalumiya) and also
relied on documents viz; Pnchanama dated 01/05/2007 (D-35), ·
Panchanama dated 26/04/2007 (D-48)~ CDR of cell no.
9426233679' of V.A. Rahtod (D-·149), weekly dairy (D-155),
latter dated 21!06!2007 of V.A. Rathod CD - 114), disclosure
memo dated23/05/20l0 (D-129).

48. PW-105 (Nathuba Jadeja) stated that as per the

direction of Vanzara Saheb (this applicant), he along with PSI-
Chauhan collected firewood 700-800 kg and proceeded via
Gandhinagar - Chiloda Ciricle - himmat Nagar to village Illol.
From Chiloda circle, in a jeep of ATS, one Choubey saheb was
proceeding ahead of tempo. As the said Tempo could not go
ahead because of mechanical defect, another tempo was
·'..
 35
7/:z rx_/ 3s
Order below Exh. 912 in
{~·,
'. S.C. 177/2013, 178/2013,
577/2013 & 312/2014

arranged and the firewood was then shifted in the second

tempo. That tempo stuck in the sand of river at about 10:00
-11:00 pm and therefore wood were unloaded there itself.
Thereafter Vanzara Saheb (this applicant), Rajkun1ar Pandian,
I

Dy.S.P. Amin reached there. Wood was staked. In a jeep dead

body was brought which was kept on the firewood. He stated
that as per his remembrance dead body was burnt by Vanzarp.
(this applicant). It is pertinent to mention here that he has not
firmly stated that dead body was burnt by applicant. As stated
above, PW-105 Nathuba's evidence appears to be evidence of
accomplice. He had filed an affidavit in the court at .A.•"IJ.madabad
on 22/05/2007 that he does not want to give any statement. He
was arrayed as accused and therefore filed application for
anticipatory bail. His statement was shown to be recorded on
26/05/2007 i.e. after filing of affidavit dated 22/05/2007. He
again retracted from his earlier statement. Subsequently in or
apout October 2010, CBI again recorded his statement, wherein
he attempted to make statement against applicant. It is to be
noted here that he again in CBI Court at Ahmadabad filed
affidavit stating that he· did not give any statement to CBI. His
statement before the Ld. Magistrate came to be recorded under
threats. This will consequently point out that this witness was
changing his stand from time to time. · It will therefore ·be .
difficult to give any weight-age to the evidence of such·
accomplice. It is also to be noted here that his evidence is not
corroborated by any reliable material pointing out involvement
of the applicant in killing of Kausar Bi and setting her dead body
·-\ to fire.
 7 /'KIT /.3 ~
~,
(. 1
36 Order below E.-xh. 912 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014

49. Disclosure memo dated 23/05/2010 without

discovery of any fact is not admissible in view of section 27 of
the Evidence Act. The statement of PW-288 (Hari ~Narayan),
PW-289 (Dhaibhai) and Pw-290 (Jaindra), employees in Bharat
Sanchar Nigam Limited are witnesses on the call detail records.
They have not stated abo11t conversation between the persons
who used cells mentioned in the information supplied by them.
Merely filing CDR would be of no consequence in absence of
detail conversation. It is held in citation Babu~hai Bhimabhai
BokhiriaVs. State of Gujarat ~014 (5) SCC568 that

.·'l'The other evid~nce -sought to be relied on for·

sumriwning the appellant is the alleged conversation
between the appellant and the accused on and
immediately between the day of occurrence. But,
nothing has come during the course of trial.
Regarding the content of conversation~ and call
record alone, the appellant's complicity in th~ crime
does not surface at all".

The other documents like weekly dairy, letter,

panchanama as regard to the spot where dead body was burnt
does not prima facie connect applicant in alleged killing of
Kausar Bi. In fact, there is absolutely no iota of material as to
when, where and who killed Kausar Bi. There is also no material
collected from the spot like sand, ash, etc to say that dead body
was burnt. It was obligatory for the investigating agency to
collect suCh material to establish the story of burning the dead
body in the bed of said river.
. ·.::.. ..
 1~/J7
0 37 Order below Exh. 912 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014

50. PW-156 (Kalpesh) stated that firewood was

transferred from one tempo to his tempo. PW-157 (Irfat Bhia)
stated that firewood was loaded in his tempo and there from it
was transferred to another tempo. Same is the statement of PW-
188 (Zahir Abbas) who was a driver on· tempo. As regard
arrangement of crane to remove stuck tempo, prosecution relied
on statement of PW-153(Gurbatsingh), PW-154 (Kanti Singh)
and PW-155 (allarkha). Statements of these witnesses do not
even suggest involvement of the applicant in killing and
disposing of dead body of Kausar Bi. There is no prima facie
reliable and acceptable material against applicant to establish
the fact that he killed Kausar Bi or participated in killing of
Kausar Bi and disposing of her body.

· 51. As regard to the killing of Tulsiram Prajapati in fake

encounter, it is alleged by the prosecution in connection with
the role said to have been played by applicant that during
relevant period he was Border Range Officer (Gujarat-Rajasthan
border) and he directed accused Vipul Agrawal (A-24), who was
then S.P. of Banaskata to locate whereabouts of Ashish Pandya,
who was then working as PSI, Special Operation Group,
Palanpur, however, was on leave. It is alleged that the job to
eliminate Tulsiram Prajapati was to be assigned to said Ashish
Pandya. Consequently, family members of Ashish ·Pandya at
village Meghpar were contacted and ultimately Ashish Pandya
joined duty. On 28/12/2006 at 5:00 am said Tulsiram Prajapati
was brought at the scene of crime by .two unknown persons in
..
"'

---.-------·---------..------ ---·--··--·--------·---:····-:- . ...

.....-----.-.....,.-~---- ~--- ...,--~-~--~~--~""""'--~--.--~--,.,.,.,...,. -
....... ................
 -; j,~~/:sJ'
~.
\"·· I
38 Order below Exh. 912 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014

white colour Maruti car. That time Tulsiram Prajapati was

handcuff. He was made to alight from car. Ashish Pandya and
Narayan Singh fired three rounds at Tulsiram Prajapati who
ultimately died. It is further alleged that applicant
I
was in
constant touch with Dinesh M.N. (A-3) S.P. Rajasthan to make
conspiracy in the killing of Tulsiram Prajapati.

52. PW-132 (Kanji Jadeja) police official stated that as

per the direction of DG Vanzara DIG Border Range Bhurj, he
had been to the village of Ashish Pandya, however, he was not
available there and ·therefore told his 1.Nife and parents L~at

Ashish be asked to contact DG Vanzara. It is to be noted here

that wife of _said Ashish Pandya in the statement given before
/' .•

CBI did not corroborate the statement of this witness. On same

count evidence of PW-133 (Meghji Bhai), who said to . .have
accompanied PW-132 (Kanji), cannot be accepted tO be
sufficient prima fade to frame charge. There is no material to
connect applicant in the killing of Tulsiram Prajapa.ti.

53. There is allegation against the applicant that he

dictated contents of FIR to Ashish Pandya. PW-230 (Arvindbhai
Patel) initially stated that complaint of Ashish Pandya' was
reduced into writing by him as narrated by said Pandya. In the
detail statement recorded by CBI, he later on stated that Vipul
Agrawal S.P. and Ashish Pandya were in constant touch with
shri DG Vanzara, the th~n DIG when the complaint was being
lodged. He has no where stated that contents of FIR were
dictated by this applicant on phone to Ashish Pandya Sub
~-.
 7/5D-'£-/J7
.~ 39 Order below Exh. 912 in
f::' S.C. 177/2013, 178/2013,
577/2013 & 312/2014

Inspector. Mere conversation between Vanzara (this applicant)

at one side and Vipul Agrawal (A-24) and Ashish Pandya, to
other side in itself is not sufficient to rope applicant in the
killing of said Tulsiram Prajapati.

54. Lastly, prosecution also wanted that this court can

go through the statement of Ramanbhia Patel (P\IV-66) and
Dashrathbhai Patel (PW -6 7), both partners of Popular Builders
and further urged that their statement will point out the
conspiracy hatched by applicant in the killing of Sohrabuddin. It
is to be noted here that there earlier two statements came to be
recorded under section 161 Cr.P.C. on 16/03/2010 and
27/03/2010 whereas third statement dated 12/04/2010 came
to be recorded under section 164 (5) of Cr.P.C. All these

statements if seen together, it will be found that virtually they

are similar ad verbatim. Such is an unnatural event unknown to
common-sense. Even assuming for the sake of argument
statement of these witnesses as they stand, the allegation
appears against applicant is that he had asked both these
witnesses to give statement as he desires against Sohrabuddin
after his killing. According to prosecution State Home Minister
Amit .Shah (A-16) contacted telephonically even with these
witnesses and asked them to make a statement as Mr. Vanzara
(this applicant) desires. Undisputedly, CBI did not get actual
conversation so also did not even venture to collect voice sample
of said minister and this applicant to substantiate this story of
extending threats to these witnesses. Consequently, part of the
•

.
 ........ _., ____ .,__._ ........___._,_.......- ..

~~;-
·..." ·· .. 40
71 2J£--! 4"
Order below Exh. 912 in ····--
S.C. 177/2013, 178/2013,
577/2013 & 312/2014

statement of these witnesses attempted to rope applicant with

alleged conspiracy is of no consequence even prima facie.

55. The prosecution has placed reliance on alleged

letters sa:id to have been sent by applicant to DG an& IG of
~~

police Rajasthan Jaipur about joint operation of police of

Gujarat and Rajasthan State in regard to killing of Sohrabuddin.
-~

In this letter he has referred about notable work/act of S.P. ··.:.i~

...;...,~

Dinesh M.N. (A-3) Udaipur besides team of other police officials ··:;;:;-

and consequently recommended that authority be suitably

appreciate/reward considering their sincere ·efforts and
consistent coordination with Gujarat police. This letter in no
stretch .of im~gination can cotmect applicant in either killing
~/ -,

and/
-
or hatching
- conspiracy in killing of Sohrabuddin. At the
most -letter said . td · have been sent by applicant with
recommended note with a view to confer some reward to S.P.
Mr. Dinesh M.N. a.'ld police officials named therein.

56. From the discussion in foregoing paragraphs, it is

apparent that there is no prima facie material against the
applicant to point out his participation in the killing of
Sohrabuddin, Kausar Bi and Tulsiram Prajapati and therefore
_.,;,;

applicant is entitled for disCharge in view of section 227 of ·--.-:.

Cr.P.C.

57. Now it is to be seen as to whether prior sanction of

the State Government to prosecute the applicant as
contemplated under section 197 of Cr. P. C. was ess.ential.
. .
/["> 41 Order below Exh. 912 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014

Without. repeating the elaborate argument canvassed by the Ld.

Advocate for the applicant suffice it to say that his contention is
that whatever was done by this applicant was done in the
capacity of public servant and in discharge of his official duties
I

as such public servant and therefore prior sanction was

essential. According to him, such prior sanction was admittedly
not obtained by prosecution which shall result into dropping of
prosecution. As against this it is submitted by the Ld. Prosecutor
that there was no reasonable connection of the factum of killing
of Sohrabuddin, Kausar Bi and Tulsiram Prajapati in encounter
v:ith the duty to apprehend him; rather the act and conduct of
applicant was objectionable which was not coming within the
colour of discharge of official duty and therefore in such matter
prior sanction is not required. It is further contended that
defence story about abducting followed by killing of
Sohrabuddin, Kausar Bi and Tulsiram Prajapati is a concocted,
baseless and imaginary story. In fact, there is reliable material
against this accused/applicant to connect him at least as a
conspirator in the killing of said Sohrabuddin, Kausar Bi and
Tulsiram Prajapati. In view of such fact, as killing of a person
was not coming within the ambit of discharge of public duty
more particularly when his killing was a stage managed
encounter, question of prior sanction of State Government · ·
against this applicant/accused is not required and therefore
applicant cannot be allowed to take shelter of section 197 of.
Cr.P.C.
,.~\ 42
7/ 'trL-h }_
Order below Exh. 912 in
S.C. 177!2013, 178/2013,
577/2013 & 312/2014

58. In the case of Ompraksh Versus State of

Jharkhand ((2012) 12 SCC 72) Hon'ble Apex court took note
of all its earlier rulings and observed that:-

'The true teSt as to whether a public servant

I
was acting or purporting to act in discharge of his ~~~~~
duties would be wheth~r the act complained of was
directly connected with his official duties or it was
done in the discharge of his official duties or it was . 7-~

so integrally eonnected with or attached to his office

as to be inseparable from it. The protection given
under section 197 of the Code has certain limits and
is available only when the alleged act done. by the
public servant is reasonably connected with the
· discharge of his official duty and is not merely a
cloak for: doing the objectionable .act. If in doing his
officia(duty~ he acted. in excess
of his duty~ but there
. . a reasonable conn~ciion between the act and the
is
. .

performance of the offid.al duty, the excess will not

be. a sufficient 'ground to deprive the public servant
of the protection~', ....

It has been further held by the Hon'ble Apex Court in this

ruling that :-
$··

'Unless unimpeachable evidence is on record

to establish that. their action is indefensible, mala-
fide and · vindictive, they cannot be subjected to
prosecution.. Sanction must be a precondition to
their prosecution; It affords necessary protection to
such police person_nel. Plea regarding sanction can be
raised at the inception.'

"'·
 1/ zrz::-1 ~ 3
r~ 43 --order below Exh. 912 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014

59. Ld. Counsel for the applicant placed reliance on

citation Manorama Tiwari and Others Vs. Surendra Nath Rai
"ti
reported in (2016) 1 SC. Case 594, after taking note of
constitutional bench ruling in case of Matajog Dobey Vs. H.C.
Bhari that;

'Public servants have to be protected from

harassment in the discharge of official duties while
··?
ordinary citizens not so engaged do not require this
safeguard. It was argued that section 197 of the
Criminal Procedure Code vested an absolutely
arbitrary power in the Government to grant or
withhold sanction at their sweet will and pleasure7
and the legislature did not lay down or even indicate
any guiding principles to control the e.:x:ercise of the
discretion.

There is no question of any discrimination

between one person and another in the matter of
taking proceedings against a public servant for an
act done or purporting to be done or purporting to
be done by the public servant in the discharge of his
official· duties. No one can take such proceedings
without such sanctions.'

In another ruling in State of H.P. Vs. M.P. Gupta ((2004)

2 SCC 349) the Hon'ble Apex Court held that 'ultimately quality
of evidence appearing against public servant is required to. be
looked into by the Court.'

It has been held that;

'It is the quality of the act which is important

and the protection of this .section is available if the
~ . act falls within the scope and range of his official

...
 7/;6 I,'L ;.1 ~
('7":"\
(';' ., 44 Order below Ex h. 912 in
'" '-~'' S.C. 177/2013, 178/2013,
577/2013 & 312/2014

duty. There cannot be any universal rule to

determine where there is a reasonable connection
between the act done and the official duty, nor is it
possible to lay down any such rule. One safe and
sure test in- this regard would be to consider if the
omission or neglect on the part of the public servant
"~
to commit the act complained of could have made
him answerable for a charge of dereliction of his
official duty; if the answer to this question is in the
affirmative, it may be said that such act was
·tr.·
committed by the public servant while acting in the
discharge of his official duty and there was eve1y
connection with the _act complained of. and the
official duty of the public servant. This n<::pect makes
it clear that the concept of sec. 197 does not get
immediately · attracted on institution of the
complaint case.'

~·.~.

60. Keeping in mind ratio held in above citations, let us

again consider the quality of evidence on record against the
applicant. It is elaborately discussed in the foregoing paragraphs
about the acts of applicant in the alleged abduction followed by
killing of SQhrabuddin, Kausar Bi and Tulsiram Prajapati in
encounter. Considering the quality of material on record against
this applicant and taking into consideration entire prosecution
story, to my mind,' it is clear that there is no prima facie material
against this accused/applicant to connect him in the abduction
followed by killing of Sohrabuddin, Kausar Bi and Tulsiram
Prajapati much less as one of the conspirator. In fact, even
prosecution has not whispered presence of this
. accused/applicant-at the spot on the date and time of abduction
'..
 7/J<tK-!Lts
~-. 45 Order below Exh. 912 in
S.C. 177/2013, 178/2.013,
577/2013 & 312/2014-

followed by killing of said Sohrabuddin, Kausar Bi and Tuls iram

Prajapati. In view of such fact and in absence of evidence of his
involvement in any manner in the abduction followed by killing
of Sohrabuddin, Kausar Bi and Tulsiram Prajapati, I am of the
\.

view that the role attributed against this accused/applicant as

reflected above does definitely come within the sphere of
discharge of his official duty. Consequently, I hold that p~or

sanction to prosecute this accused/applicant was required as

contemplated under section 197 of Cr. P. C. Admittedly, prior
sanction to prosecute this accused/applicant being not sought,
prosecution ag~inst him needs to be dropped and it; therefore;
stands dropped. I therefore proceed to pass the following order.

ORDER

a. Application Exhibit 912 is allowed.

b. Accused/Applicant namely D.G. Vanzara is hereby
discharged from prosecution under section 227 of
Cr. P. C.
c. The prosecution against said accused is
dropped in absence of prior sanction of
Government as required under section 197 of
Cr. P. C.
d. His bail bond stands continue for six (6)
months as required under section 437-A
Cr. P. C. to appear before the higher court
as and when such court issues notice in
respect of any appeal/petition filed against
this order

(S.J. SHARMA)
Addl. Sessions Judge,
City Civil & Sessions Court,
Gr. Mumbai.
Date : 01.08.2017
f-'~-
.• ' 46

1
~-----------------------------------------------------------------------------~

CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL I

GNED JUDGMENT/ORDER" I
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
01.08.2017 (3.00 p.m.) MRS. APARNAy. LELE
(H.G. STENOGRAPHER) I
Name of the Judge IShri s. _J. Sharma
(with Court Room No.) C.R. No.49
Date of Pronouncement of JUDGMENT/ j 01.08.2017
ORDffi I .
i
I

JUDGMENT/ORDER signed by P. 0. on I 01.08.2017

JUDGMENT/ORDER uploaded on 01.08.2017 at 3.00 p.m.

- )~

:;,,
 ('''""
t:; .. 7 fzz:_f I

IN THE COURT OF SESSIONS FOR GREATER BOMBAY

DISCHARGE APPUCATION (EXHIBIT- 913)

IN
SESSION CASE NO. 177/13, 178/13, 577/13 & 312/14

DIENSH M.N., IPS ...Applicant/

Accused no. 3
VERSUS

· CENTRAL BUREAU OF INVESTIGATION,

. Special Crime Branch (SCB), Mumbai ... Respondent

Appearance:
Advocate Raja Thakre - for Accused No. 3
Shri B. P. Raju- Special P.P. CBI/Non-Applicant

CORAM : The Additional Sessions Judge

Shri S. J. Sharma (CR No. 49)

Date : 0 rt August, 2017

Order below Exhibit 913

L Accused No. 03 /applicant named above by this

application filed under section 227 of the Code of Criminal
Procedure claimed discharge from the offences punishable
under section 120B, 364, 365, 368, 341, 342, 384, 302 r/w
section 201 of Indian Penal Code, 1860 and section 25 of the
Arms Act, stating that upon considering evidence and material
on record tendered and relied· by the prosecution, it being not
sufficient to frame the charge against him and further claimed
~ ') for dropping of the prosecution for want of sanction as
J
: ~
contemplated under section 197 ofthe· Criminal Procedure Code
 7/10--/7-
(""':>
/·. ·.
2 Order below Exh. 913 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014
from the State Government contending inter-alia that whatever
acts or omissions he allegedly committed being committed by
him while discharging his official duties as SP, Udaipur.

2. It will be worthwhile to consider and appreciate, the

prosecution case and specific allegations made against this
accused, which are expedient for deciding the application in
hand.

During the period betvveen 2004 to 2006, police

officers /policemen of Gujarat and Rajasthan State along with
some politicians entered into crimin?J.l conspiracy to nab and kill
dreaded criminal one Sohrabuddirt Sheikh, who was said to be
involved in so many cases of murder, abductions, extortion,
carrying fireafuis, etc. pending jn various courts of State of
Gujarat and State of Rajasthan. The said Sohrabuddin was
shown to be absconding accused in one crime registered against
him in Navrangpura Police Station, Ahemdabad. He was also
shown absconding accused in a murder case of one Hamid Lala,
registered at Hathipole Police Station, Udaipur in State of
Rajasthan. Therefore, police of both the States were searching
him.

3. It is further alleged by the prosecution that m

pursuance of such conspiracy to nab said Sohrabuddin and to
eliminate him, team of policemen of both the States were
formed.

'

-- ·--- ··--·.--- -· -- . -
 7(XK-/3
.r;., : 3 Order below Exh. 913 in
'<0~·· S.C. 177/2013, 178/2013,
577/2013 & 312/2014
4. The policemen learnt that Sohrabuddin along with
his wife Kausarbi had gone to Hyderabad to celebrate Eid at the
house of one Kalimuddin. They further learnt that Sohrabuddin
was to go back to Sangli (Maharashtra) from Hyderabad on
22/11/2005 in a luxury bus of M/s. Sangeela Travels ,bearing
no. KA-05-F-5051. It was, therefore, decided to abduct
Sohrabuddin from the said bus. Accordingly, the police team
from Gujarat went to Hyderabad.

5. It is further alleged by the prosecution that said bus

reached at M.S. Dhaba near Zaheerabad and halted there at

11:30 pm for refreshment on 22!11!2005. When the said bus
was 15 km away from Zaheerabad and was proceeding towards
Belgaum, it was intercepted by two Tata Sumo and one Qualis
Jeep. The bus driver was made to stop the bus. Two persons,
who were in plain clothes entered the bus, while one waited at
the door. They asked the driver to switch-on the internal lights.
They informed that they are policemen and wanted to take
.search of the bus. Ultimately, Sohrabuddin, Kausarbi and ope
more person claimed to be Tulsiram Prajapati were taken in
custody. They were brought to Valsad, where they all took lunch .
in a hotel and thereafter Tulsiram Prajapati was shifted in
another Jeep and was taken to Udaipur by Rajasthan police;
whereas Sohrabuddin and Kausarbi :were taken to Ahemdabad
by Gujarat police. Sohrabuddin and Kausarbi were kept in Disha
Farm-House near Ahemdabad till25/ll/2005.

· 6. It is further alleged by the prosecution that on

2S/ll/2005, Sohrabuddin alone was. taken to Arham Farm-
 ?/Y3/
'
Lj

4 Order below E.xh. 913 in

:f) S.C.J 77/2013, 178/2013,
sn;2tn3 & 312/2014
House and thereafter lastly he was taken to\vards GSB pole
situated between Narol and Vishala Circle. Soharbuddin was
killed in a fake encounter in the morning of 26/11/2005 at
about 5:20 am. After about 3 days thereafter, his wife Kausarbi
was also killed by poiice and her dead body was burnt and
disposed of on the river bed near village Illol on 29/11/2005.
After about one year there from, more specifically on
27!12!2006, Tulsiram Prajapati was also shot dead by Gujarat
and Rajasthan police in a stage managed encounternear Sarhad
Chapri on border of State of Gujarat and Rajasthan. Crime no.
115/2006 was registered by Rajasthan police that Tulsiram
Prajapati has been kilied in encounter.

7. It is further the case of prosecution that both

Kausarbi and Tulsiram Prajapati were killed as they were eye-
witnesses to the abduction of Sohrabuddin.

8. Abdul Rehman (Accused no. 7), a police Inspector

of Rajasthan Cadre filed a complaint with ATS Crime Gujarat on
26/11/2005 stating that vyhile Sohrabuddin - the absconding
accused was ....coming· from. Surat by High~way, he was asked to
,_.-"·_,.·..
_ ·.. .

surrender but he at once opened fire on policemen who were to

\

apprehend him. In retaliation, the police · also opened fire

against Sohrabuddin -in which he died. The matter was
investigated by police officer Mr. M.L. Parmar (Accused no. 4)
who found that it was a genuine encounter and filed abate
summary report.

--..

.. --~~---~-•···-~---·••-•---·-•'>"" ••w·.·•.,-- .·•·-~--·

 7(~ /.r
r"o\ 5 Order below Exh. 913 in
(:: .::.J
S.C. 177/2013, 178/2013,
577/2013 & 312/2014
9. It is further alleged by the prosecution that
Rubabuddin Sheikh - brother of slain Sohrabuddin, suspected
some foul play in the death of his brother and therefore sent a
letter to the Hon'ble Chief Justice of India requesting to enquire
into the matter of death of Sohrabuddin and disapp~arance of
Kausarbi. That complaint came to be forwarded to Direcror
General of Police, Gujarat with direction to enquire into the
allegations and to do the needful. The Director General of
Police, Gujarat thereupon asked CID Crime Gujarat, to re-
investigate the matter. Accordingly the matter was re-
investigated and charge sheet came to be filed against thirteen
(13) police officials indusive of this accused/applicant under
section 120-B, 364-A, 302, 201 of IPC.

10. It is further alleged by the prosecution that while

hearing bail petition by the Hon'ble Gujarat High Court it was
found that in the report of P.I. Shri Solanki of CID Crime, there
appears to be involvement of two more persons and therefore
ultimately those two persons were subsequently added as
accused no. 14 & 15 in the charge-sheet filed by CID Crime.

11. It· is further alleged by the prosecution that said

Rubabuddin - brother of slain Sohrabuddin was not satisfied
with above course of action and therefore filed a writ petition
bearing no. 6/2007 in the Hon'ble . Supreme Court with_ a
request to direct CBI to re-investigate the case. In view of the
killing of said Tulsiram Prajapati in fake encounter, his mother
Narmadabai also filed a writ petition in the Hon'ble Supreme
Court. In order to have fair investigation, the Hon'ble Supreme
 --;fzx_/&
A..
\.
6 Order below Exh. 913 in
S.C. 177/2013, 178/2013.
577/2013 & 312/2014
Court directed CBI Mumbai, to carry further investigation after
taking into consideration all aspect inclusive of a larger
conspiracy in all three (3) killings. Accordingly, CBI Mumbai
investigated the matter and filed one main charge sheet and
three supplementary charge sheets against total 38 accus~d.

12. In view of involvement of Minister, High-ranking

police officers in the matter of death of Sohrabuddin, Kausarbi
and Tulsiram PrCJ.japati, the Hon'ble Supreme Court transferred
the trial to this court ffom CBI court· at Ahemdabad, in order to
have fair trial.

13. Accused no. 03/applicant came to be prosecuted in

this case as GBI found his involvement in committing crime in
the killing and/ or in committing conspiracy of killing . of
Sohrabuddin and Tulsiram Prajapati only, in following manner:

1. The applicant/accused no. 03 along with

other Rajasthan police reached Ahemdabad on
24/11/2005. According to these police officials, it is
further urged, that they had secret information
about Sohrabuddin. In fact, such claim was found
false as Gujarat police officials already abduc~ed

Sohrabuddin. This applicant/accuse no. -3 did not

take investigating officer of Hamid Lala murder
case in which Sohrabuddin was wanted. He also
did not take case dairy of Hamid Lala murder case
when proceeded to Ahemdabad. It is contended
that applicant/accused no. - 03 was one of the

"'
 1 !-xx: (7
A
\ ·. '
7 Order below Exh. 913 in
S.C.177/2013, 178/2013,
577/2013 & 312/2014
participant in the encounter of Shorabuddin. It is
alleged by the prosecution and also urged
accordingly by Ld. Prosecutor that D.~is applicant
was in communication with DIG Vanzara (A-1)
prior to 26/11/2005 (on which date there
.
was
I
fake
encounter of Sohrabuddin). To substantiate this
argument, prosecution place reliance of CDR's of
accused Vanzara (A-1). It is further submitted that
this applicant/accused, who was S.P. Udaipur was
seen along with other accused of Gujarat Police
Carder and Rajasthan police at the scene of offence
where the encounter of Sohrabuddin had taken
place. Prosecution on this count relied on the
statement of PW-105 (Nathuba Jadeja), a police
driver of Gujarat Carder and PW-107 (Bhailal), a
police constable driver.

ii. Ld. Prosecutor had further submitted that

this applicant/ accused in fact had picked the escort
party from police stations instead of the usual
reserve police line for taking custody of Tulsiram
Prajapati. This applicant/accused conspired with
other accused person in pursuance to the
conspiracy, he got detained Mohd. Azam in
Udaipur and sent Tulsiram Prajapati alone from jail
to . Ahemdabad for attending . the court in
Navrangpura case (Popular Builder case) in order
to facilitate his killing. It is further argued that he
sent letters to S.P. ATS S.Pandya Rajkumar (A-2)
--,
'"'·
('
.c
 7/££- ;~
8 Order below Exh. 913 in
01 S.C. 177/2013, 178/2013,
577/2013 & 312/2014
c-md S.P. BanasKantha containing information
regarding escape of Tulsiram Prajapati, though it
was stage managed. He also took active
participation in dictating the contents of FIR lodged
by Narayan Singh (A-26) ASI regarding stage
managed escape of Tulsiram Prajapati. It is further
submitted that he was in constant touch with other
accused person viz. DG Vanzara (A-1),. S.Pandya
Rajkumar (A-"2) over telephone for ensuring the
execution of conspiracy to kill Tulsiram Prajapati.
In short, it is contended that there is sufficient
material on record against this applicant/accused to
frame charge of killing and/or in conspiracy of .
l9lling of Sohrabuddin and also of Tulsiram ·
Prajapati and therefore he cannot be discharged ... It
is further contended that act of this (lpplica!).t in
killing of Sohrabuddin and Tulsiram Prajapati. does ·
not warrant any protection and therefo're ;.'...

applicc,mt/accused cannot take recourse of section

197 of Cr.P.C.

14. In this case on behalf of first informant of the

'
incident namely Rubabuddin Sheikh, ":Vritten notes agitating the
contentions of applicant/accused came to be filed o_n record.
According to him,· there was false arrest and fake encounter of
Soharbuddin. The applicant also connived and conspired to kill
Soharbuddin and Tulsiram Prajapati. He has referred statement
of prosecution witnesses and further contended that while
deciding the application in hand credibility of proseq1tion
 7fyx:__( (
n...
· _·
9 Order below Exh. 913 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014
witness needs no consideration. It is required to be seen
whether the prosecution evidence brought on record during
investigation entails to say that there is sufficient ground to
frame charge and if it is so, discharge cannot be claimed.
According to him, there being sufficient material , collected
during the course of investigation· to point out active
participation of this applicant in commission of the offence
levelled against him, he is not entitled for discharge. It is.
submitted that acts and role played by this applicant does not
warrant his protection as contemplated under section 197 of Cr.
P.C. and therefore prayed for rejection of the application.

15. It is submitted by defence counsel for the

applicant/accused no. 03 that CDR's of applicant were not
obtained by both CBI and CID. CDR are not the part of charge
sheet. In absence of conversation mere CDR would also be of no
assistance to the prosecution.

16. It is further contended that the statement of PW-

105 (Nathuba Jadeja), PW - 107 (Bhailal Rathod) and PW - 44
(Puranlal Meena) are not sufficient even to suggest any
participation either directly or as one of the conspirator in the
killing of -Sohrabuddin.

17. As regards the murder of Tulsiram Prajapati, the_

allegation of illegal detention of said Tulsiram Prajapati from his
alleged arrest from 26/11/2005 to 29/11/2005 till he was
shown arrested in the record of Hamid Lala's murder case, at
the instance of this applicant/ accused, evidence attempted to

---------- -----------------~~- ~~~~--------

- ------·---------~
~, 10
7 /'PL /r(J
Order below Exh. 913 in
\ ., ,·. ·. ,
S.C. 177/2013, 178/2013,
577/2013 & 312/2014
be brought on record falsifies prosecution story. It is further
contended that prosecution story that Mohd. Azam was
deliberately not taken along with Tulsiram Prajapati as a fake
encounter was to be made is not substantiated by reliable
evidence placed on record by the prosecution. It is u,rged that
pages 1653-1655 of D-167 of charge-sheet signed by S.H.O.
Ambamata Police Station (Ranvijay Singh) clearly says how the
case was detected, investigated ·and charge-sheeted. In any
event even for the sake of argument it is accepted that Azam
was arrested at the behest of applicant it would not lead to only
inference that applicant .conspired to kill Tulsiram Prajapati.

18. As regard to formation of escort team to send

Tulsiram ~rajapati from Udaipur jail to Ahemdabad court on
- '

26!12/2006, it is urged that as there was shortage of \man

power at reserve police line to provide escort, the additional
force is to be summoned from the nearest police station under
the general order of· Superintendent of police. Therefore, 'staff
was requisitioned from Surajpol police station, being the nearest
police station, as reflected from general dairy of said police
station and also from the statement of PW-209 Bhavar Singh
(Head Constable), PW'-80 Hinglaj Dan IPS (ASP), PW-115
Bhopal Singh (Head Constable) ~nd PW-116 Bhavar Singh (RI).

19. As regard to sending of fax regarding information

of location of the suspect phone at the instance of this
applicant/accused, it is contended that since the location of the
said suspect phone was found in Gujarat, naturally Sudhir Joshi
sent lette! to ATS Gujarat and ultimately location was d.~tected
 7/TC(tr
("'"'\ 11 Order below Exh. 913 in
(· >. S.C. 177/2013, 178/2013,
577/2013 & 312!2014
in Banaskatha. It is further contended that in any event if some
person escapes from the custody of police, the police are bound
to take all necessary steps to track down such a person and
communicate with all person. Such act also comes within the
.purview of discharge of official duty.

20. I have gone through the case papers including

statements of witnesses referred to by the Ld. Counsel and
Prosecutor for respective parties. I have also gone through the
documents referred during the course of argument.

21. To substantiate his argument, Ld. Counsel for the

applicant prayed to consider the rulings relied upon by this
court while deciding discharge of other co-accused. As against
this, Ld. Prosecutor placed reliance on rulings in the case of

a) State of Bihar V/s. Ramesh Singh 1977 Cri. L.J.

1606 (1);
b) State of Karnataka V/s. L. Muniswamy & Ors.
1979 Cri. L.J. 1125 (1);
c) Union of India V/s. Prafulla Kumar Samal
1996 Cri. L.J. 154 (1);
. d) State ofMaharashtra V/s. Somnath Thapa 1996
Cri.L.J. 2448;
e) State of Orissa V/s. Debendra Nath Padhi AIR 2005
~c 359;
f) P. Vijayan V/s. State ofKerala 2010 Cri. L.J. 1427;

g) Rukmani Narvekar V/s. Vijaya Satardekar AIR 2009

sc 1013;
h) Shoraj Singh Ahlawat & Ors. V/s. State ofU.P. &
Ors. 2013 Cri. L.J. 331;
i) Om Prakash & Ors. Vs. State of Jharkhand 2012
Supreme Court.
 7 /zr·/ 11--
p, 12 Order below Exh. 913 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014
22. First of all it would be worthwhile to consider the
scope of section 227 of Criminal Procedure Code. For this
purpose it is better to have a glance to the said provision which
reads as under:

"If, upon the consideration of the record of the case.,

and documents submitted therewith, after hearing
submissions of the accused and the prosecution in
that behalf, the judge considers that, there is not
sufficient groundfor proceeding against the accused,
he shall discharge the accused and record his reasons
for so doing."

23. It is not Ii~cessary to note each and every ruling

while deciding the application in hand, more particularly when
ratio held in· citations referred to are elaborately discussed and
dealt with·any one of the citation.

The Hon'ble Apex Court in the matter of Century

Spinning and Manufacturing Company V/s. State of
Maharashtra (1972) 3 sec 282 considered the scope of section
251 (A) Cr. P. C 1898 (old code}, now section 239 of the Cr. P.
C. It is observed in para. 17 that:

"the order of framing charge does

substantially affects the person's liberty and it is not
possible to countenance the view that the Court must '
automatically frame the charge merely because the
prosecuting authorities, by relying on documents
referred to in section 173, considers it proper to
institute th'e case. The responsibility of framing
charges is that of the Court and it has to
judicially consider the question of doing so.
Without fully adverting the material on record, it
must not blindly adopt the decision of the
prosecution."
'..
 7/xxj,J
·~·--·-

(~~ 13 Order below Exh. 913 in

S.C. 177/2013, 178/2013,
577/2013 & 312/2014

The scope of sec. 227, Cr.P.C. was considered by Hon'ble

Supreme Court in the ruling Union of India v/s Prafulla
Kumar Samal ( (1979) 3 SCC 4). It was held that,

"the words 'not sufficient grounds for

proceeding against the accused' clearly shows that
the judge is not a mere post office to frame the
charge at the behest of the prosecution~ but he has 7

to exercise his judicial mind to the facts of the case

in order to determine whether a case for trial has
been made out by the prosecution. In assessing this
fact it is not necessary for the Court to enter into
7

pros and cons of the matter or into weighing and

balancing the evidence and probabilities which is
rPn11v hie f11nrt-inn nftor
LLV J "-''a.-"""-'-'' L
• _....._._"-J I ....._J 1..'-'1 t-ho trin1 ctnrt-c Lit-
Ll 1..'-" Ll L'-'l.L U'l..\..4.1 Lo..J• ~
rho "t-ruro
.J.L \...I L'-" t,)L'-A.6'-"

of section 22~ the judge has merely to sift the

evidence in order to find out whether or not7 there is
sufficient ground for proceeding against the accused.
The sufficiency of the ground would take within its
fold the nature of evidence recorded by the police or
the documents produced before the Court which Ex
Facie disclose that there are suspicious circumstances
against the accused to frame the charge.

It has further been held by the Apex Court that,

"The scope of section 227 of the code was

considered by a recent decision of this Court. In the
case of State of Bihar v/s Ramesh Singh~ the Court
observed as follows: Strong suspicion against the
accused, if the matter remains in the region of
suspicion, cannot take pale of proof of his guilt at
the conclusion of trial. But~ if at initial stage there is
a strong suspicion, which leads the Court to think
that there is ground for presuming that the accused
has committed an offence7 then it is not open to the
Court to Say that there is no sufficient ground of
proceeding a.c;ainst the accused. The presumption of
the guilt of the accused which is to be drawn at an
initial stage is not in the sense of the law governing

~----~-·.~·~---.·---- ,. '~- ----.-- -~=-··--·~~-~ -----

 7 /t-L~jly
~ 14 Order below Exh. 913 in
~·. · .. · :
~~' ~ ' S.C. 177/2013, 178/2013,
577/2013 & 312/2014
trial of criminal cases in France, where the accused
iS presumed to be guilty unless the contrary is
proved. But It is only for the purpose of deciding
primaJacie whether the Court should proceed with
the trial or not. If the evidence which the prosecutor
proposes to adduce to prove the guilt of the accused,
even if fully accepted before it is challenged in cross
examination or rebutted by the defence evidence, if
any, cannot show that the accused committed the
offence, then there is no sufficient ground for
proceeding with the trial. This Court has thus held
that, whereas strong suspicion may not take place of
proof at the trial stage, yet it may be sufficient for
the satisfaction of the Sessions Judge to frame
the charge against the accused."

Tn rha
.LJ..I.
\..1.1.'\....
~"'"'coa nf
'-'U~'--'
D \TH~n~n
V.I. .&. Y .&.J...._J ....._..&
u/c. <;:t-~t-o .....,.
,.., L'l' ....,..._...,._:"" nf
...
Uo..-~1~ (')f\1 f\
.&'-"-'.&......._.... '\.-'-'.a.'-'
r..-1
......,.._
.&.•

L.J. 1427 ·(SC)), the Hon'ble Apex Court while considering the
scope of section 227 of the Cr. P. C. observed that,

"If two views are possible and one of them

gives rise to suspicion only as distinguished from
grave suspicion, the trial judge is empowered to
discharge the accused and at this stage he is
not to see whether trial will end in conviction or
acquittal"

In the recent ruling in case of Shoraj Singh Ahlawat &

Ors. V/s. State of U.P .. & Ors. 2013 Cri. L.J. 331 the Hon'ble
Apex Court took note of almost all rulings on this subject and
succinctly stated the following principles as guidelines.

'To the same effect is the decision of this court

in Union of India Vs. Prafulla. Kumar Samai and
Anr. (1979) 3 SCC 4: (AIR 1979 SC 366), where
this Court was examining a similar question in the
context of Section 227 of the Code of Criminal
Procedure. The legal position was summed up as
under:

"'·
 7 /_y,x: (, s·
~
· .·
~

'~
. . 15 Order below Exh. 913 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014
Thus, on a consideration of the authorities' mentioned
above, the following principles emerge:

1) That the Judge while considering the

question of framing the charges under Section 227
I

of the Code has the undoubted power to sift and

weigh the evidence for the limited purpose of
finding out whether or not a prima facie case.
against the accused has been made out:

2) Where the materials placed before the Court

disclose grave suspicion against the accused which
has not been properly explained the Court will be
fully justified in framing a charge and proceeding
with the trial.

3) The test to determine a prima facie case

would naturally depend upon the facts of each case
and it is difficult to lay down a rule of universal
application. By and large however if two views are
equally possible and. the Judge is satisfied. that the
evidence produced before him while giving rise to
some suspicion but grave suspicion against the
accused, he will be fully within his right to
discharge the accused.

4) That in exercising his jurisdiction under

Section 227 of the Code the Judge which under the
present Code is a senior and experienced Judge
cannot act merely as a Post Office or a mouth-piece
of the prosecution, but has to consider the broad

'"
 7(~/rt
0> 16 Order below Exh. 913 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014
probabilities of the case, the total effect of the
evidence and the documents produced before the
Court, any basic infirmities appearing in the case
and so on. This however does not mean that the
Judge should make a roving enquiry into the
I
pros
and cons of the matter and weigh the evidence as if
he was conducting a trial.'

24. Ld. Prosecutor has place reliance on statement

(complaint - D-2) of Police Inspector Abdul Rehman (A-7) who
·lodged FIR. He has also referred statement of PW-22 Bhavrsingh
Hada (Police Inspector) and PW-23 Sudhir Joshi (Addl. S.P.).
According toLd. Prosecutor inference that could be drawn from
the compla:int (D-2) is that on 24/11/2005, Dinesh M.N. (this
applic~nt) along with other Rajasthan police official reac)led
Ahemdabad, in view of alleged secret information .about
Sohrabuddin. In fact, the record will show that Sohrabuddin
was already in the ·custody of Gujarat police and therefore
alleged secret information followed by act of proceeding to
Ahemdabad by Rajasthan police ·was managed. Had there been
such secret information of Sohrabuddin, who was a wanted
criminal in the matter of Hamid Lala murder case, investigating
'
officer of that case would have been taken but the fact is
otherwise. It is to be noted that from perusal of D-2 (complaint),
it will be apparent that in view of the information as regard to
Sohrabuddin, he along with other police officials reach to
Ahemdabad on 24/11/2005 where he met DIG Mr. Vanzara
(A-1) who formed a team of police officials of Gujarat police to
apprehend Sohrabuddin. It further appears that ultimately there
 7/TE--(11
17 Order below Exh. 913 in
G?: S.C. 177/2013, 178/2013,
577/2013 & 312/2014
was encounter of Sohrabuddin who was proceeding on motor-
cycle. Same is the material that could be gathered from
statement of PW-22 (Bhavarsingh) and PW-23 (ASP - Sudhir
Joshi). There is nothing to suggest that in forming police team
to apprehend a wanted criminal any illegality was committed.

25. It is further to be noted in this case that CDR's of

applicant/accused were not obtained during the course of
investigation. Had it been collected, it would have given clear
picture as regard to contact of this applicant/accused with Shri
Vanzara (A-1). In fact, this applicant/ accused was in contact
with many other agency of Gujarat as well as other states during
the relevant period as a part of his official duty. The
investigating agency for the reasons best known to it collected
CDR's of accused Vanzara; rather with a view to draw inference
that would be found convenient to the prosecution story. In any
event without any material as regard the conversation between
the two, merely on the basis of CDR, no one can be prosecuted
for serious offence. It is held in citation Babubhai Bhimabhai
Bokhiria Vs. State of Gujarat 2014 (5) SCC 568 that

"The other evidence sought to be relied on for

summoning the appellant is the alleged conversation
between the appellant and the accused on and
immediately between the day of occurrence. But,
nothing has come during the course of trial.
Regarding the content of conversation, and call
record alone, the appellant's complicity in the crime
does not surface at all".

.,

:-~~---.- - -- .. ------:~-.-,,•;.,--.-,,,-,-::-:;-.~,~.~-' --::

 7/J;z-/t~
18 Order below Exh. 913 in
·"""''
~·.' '~
S.C. 177/2013, 178/2013.
577/2013 & 312/2014
Therefore, CDR's of co-accused Vanzara (A-1) would be of
no consequence to establish either participation and/or
conspiracy in killing of Sohrabuddin.

26. PW-105 (Nathuba Jadeja), a police constable driver

stated that on 25/11/2005 at about 1:30 - 2:00 am, he was
driving a Maruti Fronti. Police Inspector Dabhi was seated in
front seat whereas three officers of Rajasthan police seated on
the back seat of the car. Vehicle was taken as per direction of
P.I. Dabhi from Narol Circle to Vishala Circle where all the four
police officials got down. In the meanwhile another Maruti
Fronti came from Narol Circle and stopped near electric pole.
One Bhailal (PW-107) was driving that Maruti Fronti. Persons
present in thitt Maruti Fronti aJ_ighted. After some interval he
heard firing sound. In the Fronti of driver Bhailal (PW-107),
wherein Dy.S.P. Parmar and police inspector Dabhi were
present, one seriously injured person was taken to hospital. He
further stated 'at this place, Vanjara Saheb, Pandian Saheb, S.P.
Udaipur, Choube Saheb and Shantaram Sharma who came into
my Fronti, were seen'. Thus, according to this witness S. P.
Udaipur (this applicant) was seen for the first time by this
witness at the hospital. He has not whispered anything agai:ost
this applicant involving him in. alleged fake encounter of
Sohrabuddin much less even as a conspirator. Even ·assuming
that this witness wanted to say presence of applicant near the
place of fake encounter that is to be read between the lines that
this applicant did not reach to the spot even in the vehicle which
was being driven by driver Bhailal (PW-107). As per both
:;...
 7 /Y::r-(t1
r"'i 19 Order below Exh. 913 in
....
~ '/
S.C. 177/2013, 178/2013,
577/2013 & 312/2014
witnesses namely PW-105 (Nathuba Jadeja) and PW-107
(Bhailal) only two Maruti Fronti reached to the spot. Both these
witnesses did not whisper about presence of applicant in those
two vehicles. They have not even stated that any other vehicle
than these two Maruti Fronti reached to the spot. , A careful
scrutiny of the statement of PW-107 (Bhailal), it will reveal that
prior to the time his Maruti fronti reached to the spot there was
no other vehicle present. This is inconsistent with the statement
of PW-105 (Nathuba). Further PW-107 (Bhailal) stated that the
persons who reached to the spot in another Fronti, alighted but
he specifically stated that he does not remember their number
and their identity. He also stated that prior to the time he reach
near the spot after encounter, on the call of Mr. Dabhi (P.I), the
other vehicle had already left the spot. He has not stated
presence of applicant along with Pandya (S.P.) and S.P. Udaipur
at the spot. In short, in such circumstance presence of S. P.
Udaipur (this applicant) at the spot therefore in absence of any
specified statement about details as to when and how applicant
reached there, is not worth of acceptance.

27. Thus as regard to the alleged fake encounter of

Sohrabuddin there is no even prima facie material against this
applicant to point out his involvement in any manner. Even
otherwise, the evidence of accomplice PW-105 (Nathuba Jadeja)
is not worth of credence as elaborately discussed above. The
statement of this witness also does not find any corroboration to
connect applicant in alleged fake encounter of Sohrabuddin.

~. --~~ ~~~~~.,.....,..,~~·
 ~~~---- ............ -

7 {Z5C{2"c
p.
...
....:
.i
20 Order below Exh. 913 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014
28. Section 10 of the Indian Evidence Act, 1861 allows
the Court to consider co-accused's statements about conspiracy
only as a corroborative piece of evidence, provided that by way
of legal evidence it is shown that there was an agreement in
between them to carry an illegal act or a legal act by illegal
I
means. It would be proper to reproduce Section 10 of the
Indian Evidence Act, 1861, which reads as under:

"1 0. Things said or done by conspirator in reference to

common design -
Where there is reasonable ·ground to believe
that two or more persons have con.spired together to
commit an offence or an actionable wrong, anything
said, done or written by any one of such p~rsons in
reference to their common intention, after the time
when such intention was first entertained by any one
of them, is a relevant fact as against each of the
persons believed to be so conspirin& as well for the
purpose of proving the existence of the conspfracy as
for the purpose of showing that any such person was
a party to it.'~

29. The scope and applicability of this section is

considered by the Hon'ble Apex Court in the case of State of
Gujarat V/S Mohammed Atik ((1998) 4 SCC 351), where the
Hon'ble Apex Court states in para 13:

"We have to see the amplitude of the

expression "in reference to their common intention"
as used in section 10 of the Evidence Act. It was once
considered that the expression is as good as saying
"in furtherance o/ the common intention". Almost
seven decades ago a Full Bench of the Patna High
Court had held it like that in Indra Chandra Narang
v. Emperor··

'-·
 7 /y;:c( ~~
~
(:. :I
21 Order below Exh. 913 in
<:__;_:)/ S.C. 177/2013, 178/2013,
577/2013 & 312/2014
"The object of this section is merely to ensure
that one person shall not be made responsible for the
acts or deeds of another until some bond in the
nature of agency has been established between them
and the act, words, or writing of another which it is
proposed to attribute vicariously to the person
charged must be in furtherance of the common
design and after such design was entertained."

It is further observed in para 14 that:

"But a three-Judge bench of this Court in

Bhagwan Swarup Lal Bishan Lal v. State of
Maharashtra said that the expression ("in reference
to their common intention") is wider than the words
"in furtherance of their common intention" and is
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designedly used to give it a wider scope than the

words '1n furtherance of' in the English law. Even if
it is wider, would its width go beyond the period of
conspiracy? It is well-nigh settled that Section 10 of
the Evidence Act is founded on the principle of law of
agency by rendering the statement or act of one
conspirator binding on the other if it was said
during subsistence of the common intention as
between the conspirators. If so, once the common
intention ceased ·to exist any statement made by a
former conspirator thereafter cannot be regarded as
one made "in reference to their common intention".
In other words, a post-arrest statement made to a
police officer, whether it is a confession or otherwise,
touching his involvement in the conspiracy, would
not fall within the ambit of section 10 of the
Evidence Act. "

30. In Yogesh alias Sachin Jagdish Joshi v/s State of

Maharashtra ((2008) 10 SCC 394), it has also been heJd that:

and large, however, if t .vo views are

'~y
equally possible and the Judge is satisfied that the
evidence produced before him gives rise to suspicion

~r.~-;~~~~ ~ "···-->·----·-=-:-:-:::~-------:-.....-:~------:---0'"~:;:7;~::0::~"".:'""-- :
 7(~/'ll/
. I
22 Order below Exh. 913 in
A '
"'-'~• ,}'
S.C. 177/2013, 178/2013,
577/2013 & 312/2014
only as distinguished from grave suspicion, he will
be fully within his right to discharge the accused. At
this stage, he is not to see as to whether the trial will
end in conviction or not."

It has further been held that:

'The well-known rule governing

circumstantial evidence is that each and every
incriminating circumstance must be clearly
established by reliable evidence and 'the
circumstances so proved must form a chain of events
from which the only irresistible conclusion about the
guilt of the accused can be safely drawn and no
other hypothesis against the guilt is possible."

31. In Saju v/s State of Kerala ((2001) 1 SCC 378),

while consi<::Iermg the scope of section 10 of the Act, it has been
held that:

"This section mainly could be divided into

two: the first part talks of where there is reasonable
ground to believe that two or more persons have
conspired to commit an offence or an actionable
wrong, ctnd it. is only when .this condition precedent
is satisfied that the subsequent part of the section
comes into operation and it is material to note that
this part of the section talks ofreasonable grounds
to believe that two or more persons have conspired
together and this evidently has reference to section
120-A of the !PC, where it is provided' when two or
more persons agree to do, or cause to be done'."

32. In view of the above principle of law as stated by

the Apex Court in the rulings cited supra, if the facts of this case
and evidence on record on the point of involvement of this
~pplicant /accused in killing of Sohrabuddin are ::..to be
 23
7/-.zr-/, 3
. Order below Exh. 913 in
~.
(,:-' :;,
S.C. 177/2013, 178/2013,
577/2013 & 312/2014
considered which are elaborately discussed in the foregoing
paragraphs, I am of the view that there is no prima facie
sufficient material against this applicant/accused as regard to

his participation and/ or as a conspirator in killing of

Sohrabuddin.

33. Now prosecution contended that Tulsiram Prajapati

was picked-up on 26/11/2005 at Bhilwara by a team lead by
Sudhir Joshi (Dy. SP) as per the direction of this
applicant/accused but was shown arrested only on 29/11/2005.
A perusal of statements of PW- Sudhir Joshi before CBI and CID
Gujarat, it will be noticed that they are contrary to each other.
·This circumstance is also falsified by the entry in general dairy
of P.S. Hatipole, Udaipur, made by this witness in his own
handwriting on 29/11/2005 (D-169). In these entries and in his
statements before CBI he states that he got information about
presence of Tulsiram Prajapati in Bhilwara from his source on
29/11/2005. He then took permission from his immediate
superior, Addl. S.P. City, Balmukund Verma and went to
Bhilwara with a team and arrested Tulsiram Prajapati. The
contents of dairy entry are corroborated by statement dated
14/05/2010 of PW-Balmukund Verma.

34. It is further contended that PW-22 (Bhavarsingh)

reiterates in his statement about arrest of Tulsiram-Prajapati on
29/11/2005. This witness was investigating officer of the Hamid
Lala's murder case. His statement about arrest of Tulsiram
';a Prajapti is corroborated by the entries in case dairy no.
"\
214/2004 P.S. Hatipole (D-167, pages 1531-1535, CBI Tulsiram
'1,
I
!
.:
·~
r 24
) ( .x::£_ jJ L/
Order below Exi1. 913 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014
Prajapati case) and also in the charge-sheet (D-168, pages 1181-
1183, CBI Sohrabuddin case).

35. Thus it would be clear that the arresting team

belongs to two different police stations and the gen~ral dairy
entry of both these police stations mention the same fact as
regard to the arrest of Tulsiram Prajapati on 29/11/2005. Here
it is pertinent to note that CBI itself is not clear as to how
Tulsiram Prajapati reached Rajasthan. In Sohrabuddin case, CBI
says that abducted Tulsiram Prajapati was handed over to
Rajasthan police; but it is silent on who the officials of Rajasthan
police were and what was the basis or on whose evidence they
arrived at such conclusion. In Tulsiram Prajapati case, CBI
simply mentions that abducted Tulsiram Prajapati was allowe(f
to go by himself to Raj~sthan and this statement is not
corroborated by any other statement or material.

36. Prosecution has submitted that Tulsiram PrajaJ>ati

and his co-accused Azam were in jail at Ahemdabad. On
25/12/2006, Tulsiram Prajapati as ·well as his co-accused Mohd.
Azam were to be taken to Ahemdabad court. The police,
however, maliciously shown said Azam arrested in some old
'
theft case and consequently was ~ot taken along with Tulsiram
.
Prajapati at Ahemdabad Court, with only motive to facilitate
killing of Tulsiram Prajapati and this was done at the instance of
applicant/accused; It is to be noted that PW-Sudhir Joshi does
not support case of CBI in the sense intended to be used by CBI.
Case dairy (D-167, CBI charge-sheet in Tulsiram Prajapati cas~)

and the corresponding record of said theft case (95/Q4 P.S.

!
 7 {--n-Its
~ 25 Order below Exh. 913 in
t~ S.C. "177/2013, 178/2013,
577/2013 & 312/2014
Ambamata) against Azam if perused, it will reveal that
applicant's nam·e nowhere figures. It also does not point out that
this applicant played any role in arresting Azam in so called fake
theft case. Application dated 22/11/2006 for production
warrant of 1\.zam would also falsifj the contention
. I
of ul.e
prosecution that Azam was arrested in a false case at the
instance of applicant/accused. On page no. 1641 of D-167, the
investigating officer of theft case clearly says that on.
interrogation of one Punith Rathore, the name of Azam appears
and therefore Azam's production warrant was obtained. It will
also be clear from pages 1653-1655 of D-167 of charge-sheet
that as to how SHO Ranvijaysingh had detected, investigated
and charge-sheeted. At any event, even for the sake of argument
it is accepted that Azam was arrested at the behest of
applicant/accused it would not lead to only inference that the
applicant/accused conspired to kill Tulsiram Prajapati. It is
further to be noted here that truthfulness of the investigation of
the said theft case i.e. 95/2004, P.S. Ambamata, can be decided
only by competent court at Udaipur.

37. As regard to the allegation of selection and

deputing police officials to escort Tulsiram Prajapati to
Ahemdabad court on 26/12/2005, it is submitted by the
prosecution that this applicant/accused deliberately selected ·
·such escort team. The statement of PW-52 (Himmat Singh, CI,
Surajpol) and PW-114 (Hajarilal, RSI, RPL, Udaipur) are relied
..
by the prosecution. It is to be noted here that D:-147 of CBI
~ Charge-sheet in Tulsiram Prajapati case clearly shows that only
.:-:,,

three Sub Inspectors were available· for duty a.t that time.
~

.,;
 7 (~-(t &

r:""> 26 Order below Exh. 913 in

v-~.:~:
S.C. 177/2013, 178/2013.
577/2013 & 312/2014
Assistant Sub Inspector, Head Constable or Constable were not
available. There was no sufficient escort available at reserve
police line Udaipur on 25/12/2006. It is clear from the general
dairy maintained in police station Surajpol, which was the
nearest police station and which was even the generalI practice,
to summon police staff in case there is shortage of man power at.
reserve police line. Four police officials namely Bhavar Singh
(HC- PW-209), Hinglaz Dan, IPS (SP- PW-80), Bhopal Singh
(HC- PW-115) and Bhavar Singh (RI- PW-116) corroborate of
requisitioning of man power in reserve police line in case there
is shortage of man powe!.

38. It has come on record that Bhavar Singh (HC of

reserve poli.ce lines, PW-209) was actually vested
. . with the duty
of allotting duties to police men at police line. He also d~arly

stated that on that day there was shortage of police force at RPL
and therefore force was requisitioned from Surajpol police-·
station, as per general practice. He nowhere stated that Hajarilal
(RSI) instructed him to send Tulsiram Prajapati escort as per
direction of applicant/accused. Even entries in general diary of
PS Surajpol and RPL (D-186, pages 1225 and 1226 of Tulsiram
Prajapati CBI case) do not say that escort of Nara.yan Singh was
sent in Tulsi.ram Prajapati, as per direction of applicant.
Statements of SHO (Himmat Singh) of PS Surajpol and RSI
(Hajarilal) do not lead to only an unequivocal inference that
applicant told them to depute Narayan Singh for Tulsiram
Prajapati's escort. Even assuming for the sake of argument, in
any event, directions were given by applicant to send the escort
to RPL, it is indeed an official act performed in due discharge of
""'·
 .•••. -. ---• • -~-~' .i.M...U"''"'""""'"'"'-lU.AJ-:.1.-a:!.'.'•l_' ',•,\ " ' ·~•. '• ·-'-· -~- -~'-:._~-~~ ~- .. ' ' ' ''. ' , '! ,. '•',.':• .: . · '

7 (~{l?
~~ 27 Order below Ex_h. 913 in
.:..·: ;,)
S.C. 177/2013, 178/2013,
577/2013 & 312/2014
official duties. Such evidence, to my mind therefore does not
establish .involvement in killing of Tulsiram Prajapati and also
does not establish his participation even as a conspirator.

39. It is contended by the Ld. Prosecutor that fax sent

by Dy. S.P. Sudhir Joshi to S.P. Banaskantha about location of
the suspect was at the instance of applicant/accused and it,
therefore, point out his active participation in hatching
conspiracy in killing of Tulsiram Prajapati in fake encounter.
Prosecution relied on the statements of PW-58 (Sudhir Joshi)
and PW-71 (B.K. Mehta, PA, SP, Udaipur). It will be worthwhile
to look at the background for sending of fax, to appreciate the
point of argument referred to above. Dy. S.P. Sudhir Joshi was
admittedly immediate supervisory officer of Hamid Lala murder
case of PS Hatipol in which Tulsiram Prajapati was one of the
accused. In the first place, it is pertinent to note that Dy. S.P.
Sudhir Joshi who interacted with all the State agencies in
respect of the subject matter in his earlier statements made
before CID in Tulsiram Prajapati's case does not state that the
fax was sent at the behest of the applicant/accused. He also has
not stated this fact in his statement recorded by CBI in ·
Sohrabuddin case. In fact, a suspect mobile phone found on the
railway tract was seized by PI Jadhav of GRP Himmat nagar.
This is supported by documentary evidence at D-4 and D-5 in
the CBI Tulsiram Prajapati charge-sheet and the suspect's
number was communicated to Dy. S.P. Sudhir Joshi. In such
circumstance Sudhir Joshi being supervisory officer in Hamid
Lala's case was naturally expected to. take steps for tracing this
suspect number and accordingly he interacted with Delhi police,
-,
_.,:
 , ........................ .._.. _... _._.

,.t"Jo"f:¥-"h. 28
7 t£L/
Order below Exh. 913 in
1• ~'
'.:. ":1
S.C. 177/2013, 178/2013,
577/2013 & 312/2014
various mobile companies and found that the suspect number
was operating in Gujarat (D-157 to D-160, D-197 to D-302 CBI
Tulsiram Prajapati charge-sheet). Since the location of said
suspect phone was found in Gujarat, naturally Sudhir Joshi sent
a letter to ATS Gujarat (D-154). Since the number was, officially
kept under observation by ATS Gujarat (D-35 of CID Gujarat,
Tulsiram Prajapati charge-sheet) and the location thereof was
detected in Banaskantha, he sent fax (D-155) to SP ·
Banaskantha.

40. Even as per CBI, Rajkumar Pandiyan (A-2) gave the

information to applicant/accused that escq.ped offender was
spotted in Banaskantha district. Mere act of sending the fax in
no way connect this applicant/accused in hatching conspiracy.
Neither CBI QOr CID could trace out the owner or user of ~.cJd ·
p~one. Had it been a part of conspiracy then the investigatini'
. . . . ... ~

agency ought to have :find out the owner or user of said phone.

41. It is to be noted that in any event if some person

escapes from the clutches of the police, then police are bound to
take . all necessary steps to track down such a person and
communicate with all concern. Thus, assum~g for the sake of
'
argument that the fax was sent by Dy. S.P. Sudhir Joshi on the
instructions of this applicant/ accused it would fall ~thin the
ambit of an official act performed in the due discharge of his
official duty.

42. It is further contended by Ld. Prosecutor that when

Tulsiram Prajapati was in jail, he made complaint to N&tional
 7/~hr
~
[\ . "
29 Order below Exh. 913 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014
Human Right Commission that he apprehends danger to his life
from police of Maharashtra, Gujarat, Madhya Pradesh and
Rajasthan and there is every possibility to eliminate him in fake
encounter. Copy of this complaint was sent to this
applicant/accused. A _perusal of said complaint (D-~69, page
1685) it will be clear that it was definitely not sent to this
applicant/accused. This complaint does not point out any
allegation implicating this applicant/accused in any manner in
killing or hatching conspiracy in killing of Tulsiram Prajapati.

43. To sum up, it is seen from the entire record of the

case that there is no sufficient evidence on facts to indicate that
there was meeting of minds in between the Applicant/ accused
and the other co-accused to kill Sohrabuddin and Tulsiram ·
· Prajapati. The CBI mostly relies chiefly on the statements of
witnesses which are hearsay in nature, which witnesses just
state facts which they have learnt from the other co.,accused
and some-where else. From the above discussion, I am of the
view that there being no prima facie sufficient material on
record against the applicant to frame charge of killing
Sohrabuddin and Tulsiram Prajapati and/or to hatch conspiracy
in their killing, he is entitled for discharge as per section 227 of
Cr.P.C.

44. Now it is to be seen as to whether prior sanction of

the State Government to prosecute the applicant . as
contemplated under section 197 of Cr. P. C. was essential.
Without repeating the elaborate· argtiment ·canvass~d by the Ld.
-'.
 7(~f3c
r~ 30 Order below F:iili. 913 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014
Advocate for the applicant suffice it to say that his contention is
that whatever was done by this applicant was done in th~

capacity of public servant and pursuant to the directions of

superior officers which forms part and parcel of his duty and
therefore prior sanction was essential. According to him) such
prior sanction was admittedly not obtained by prosecution
which shall result into dropping of prosecution. A5 against this it
is submitted by the Ld. Prosecutor that there was no reasonable
connection of the factum of killing of Sohrabuddin and Tulsiram
Prajapati in encounter with the duty to apprehend him; rather
the act and conduct of applicant was objectionable which was
not coming within the coiour of discharge of official duty and
therefore in such matter prior sanction is not required. It is -
further con!ended that · defence .story about killing of····
Sohrabuddin and Tulsiram Prajapati is a concocted, baseless a_nd
imaginary story. In fact, there is reliable material against this
accused/applicant to connect him at least as a conspirator in rhe ·
killing of said Sohrabuddin and Tulsiram Prajapati. In view of
such fact, as killing ofa person was not coming within the ambit
of discharge of public duty more particulariy when .his killing
was a stage .managed encounter, question of prior sanction of
State Government against this applicant/accused is not required
. '
ancl therefore applicant cannot be allowed to take shelter of
section 197 of Cr.P.C.

45. In the case of Ompraksh Versus State of

Jharkhand ((2012) 12 SCC 72) Hon'ble Apex court took note
of all its earlier rulings and observed that:-

'
 7 {z:c( 3/
r-7
L
31 Order below Exh. 913 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014
'The true test as to whether a public servant
was acting or purporting to act in discharge of his
duties would be whether the act complained of was
directly connected with his official duties or it was
done in the discharge of his official duties or it was
so integrally connected with or attached to his office
as to be inseparable from it. The protection giv,en
under section 197 of the Code has certain limits and
is available only when the alleged act done by the
public servant is reasonably connected with the
discharge of his official duty and is not merely a
cloak for doing the objectionable act. If in doing his
official duty, he acted in e.,ycess of his duty) but there
is a reasonable connection between the act and the
performance of the official duty, the excess will not
be a sufficient ground to deprive the public servant
,.,.c Lll(;.
VJ
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jJI VL \...LLVILo • •. ••
'

It has been further held by the Hon'ble Apex Court in this

ruling that :-

'Unless unimpeachable evidence is on record

to establish that their action is indefensible) mala-
fide and vindictive, they cannot be subjected to
prosecution. Sanction must be a precondition to
their prosecution. It affords necessary protection to
such police personnel. Plea regarding sanction can be
raised at the inception.'

46. Ld. Counsel for the applicant placed reliance on

citation Manorama Tiwari and Others Vs. Surendra Nath Rai
reported in (2016) 1 SC. Case 594, after taking note of
constitutional bench ruling in case of Matajog Dobey Vs. H.C. ·
Bhari that;

.:J. 'Public servants have to be protected from

"'\ harassment in the discharge of official duties while
ordinary citizens not so engaged .do not require this
\
 7 j-:z;r:f]L-
c~ 32 ----order below Exh_ 913 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014
safeguard. It was argued that section 197 of the
Criminal Procedure Code vested an absolutely
arbitrary power in the Government to grant or
withhold sanction at their sweet will and pleasure,
and the legislature did not lay down or even indicate
any guiding principles to control the e..Yercise of the
discretion.

There is no question of any discrimination

between one person and another in the matter of
taking -proceedings against a public servant for an _
act done or purporting to be done or purporting to
be done by the public servant in the discharge of his
official duties. No one can take such proceedings
without such sanctions.'

In another ruling in State of H.P. Vs. M.P. Gupta ((2004)

2 SCC 349) the Hon'ble Apex Court held that 'ultimately qualitY
of evidence appearing against public servant is required to be
looked into by the Court.' _

It has been held that;

'It is the quality of the act which is important

and the protection of this section is available if the
act falls within the scope and range of his official
duty. There cannot be any universal rule to
determine where there is a reasonable connection
between the act done and the official duty, nor is it
possible to lay down any such · rule. One safe and
sure test in this regard would be to consider if the
omission or neglect-on the part of the public servant
to commit the act complained of could have made
him answerable for a charge of dereliction of his
official duty; ifthe answer to this question is in the
affirmative, it may be said that such act was
committed by the public servant while acting in the
discharge of his official duty and there was every
connection with the act complained of and the _
official duty of the public servant. This aspect makes
....
 7~(sJ
~
..
~ .. .• 33 Order below Exh. 913 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014
it clear that the concept of sec. 197 does not get
immediately attracted on institution of the
complaint case.'

4 7. Keeping in mind ratio held in above citations, let us

again consider the quality of evidence on record against the·
applicant. It is elaborately discussed in the foregoing paragraphs
about the acts of applicant in the alleged killing of Sohrabuddin
and Tulsiram Prajapati in encounter. Considering the quality of
material on record against this applicant and taking into
consideration entire prosecution story, to my mind, it is clear
that there is no prima facie material against this
applicant/accused to connect him in killing of Sohrabuddin and
Tulsiram Prajapati much less as one of the conspirator. In fact,
even prosecution has not whispered presence of this
accused/ applicant at the spot on the date and time of killing of
said Sohrabuddin and Tulsiram Prajapati. In view of such fact
and in absence of evidence of his involvement in any manner in
kiJling of Sohrabuddin and Tulsiram Prajapati, I am of the view.
that the role attributed against this accused/applicant ·as
reflected above does definitely come within the sphere of
discharge of his official duty. Consequently, I hold that prior
sanction to. prosecute this accused/applicant was required as
contemplated under section 197 of Cr. P. C. Admittedly, prior
sanction to prosecute this accused/applicant being not sought,
prosecution against him needs to be dropped and it, therefore,
stands dropped. I therefore proceed to pass the following order.
 -·· ·-·· --..-_._.._.-•,..~'-0...._..~> ..... <-0o..:..,do...o.•.•,,,~ •...--. .. o~-....!.-,..>~""'' •'''·'•'~'-•'•

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' ,, 34 Order below Exh. 913 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014
ORDER

a. Application Exhibit 913 is allowed.

b. Accused/Applicant namely Dinesh M.N. is

hereby discharged from prosecution under
section 227 of Cr. P. C.

c. The prosecution against said accused is

dropped in absence of prior sanction of
Government as required under section 197 of
Cr. P. C.

d. His bail bond stands continue for six (6)

months as required U.Ifder section 437-A
Cr. P. C to appear before the higher court
as and when such court issues notice in
respect of any appeal/petition filed against
this order.

(S.J. SHARMA) ,
Addl. Sessions Judge, ·
City Civil & Sessions Court,
Gr. Mumbai.
Date : 01.08.2017
Dictated on 01.08.2017
Transcribed on : 01.08;2017
Sismed on : 01.08.2017
"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER"
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
01.08.2017 (3.00 p.m.) MRS. APARNA V. LELE
(H. G. STENOGRAPHER)

Name of the Judge /Shri S. J. Sharma

(with Court Room No.) iC.R. No.49
I
Date of Pronouncement of JUDGMENT/ 01.08.2017
ORDER I
JUDGMENT/ORDER signed by P. 0. on 01.08.201 ,_,
JUDGMENT/ORDER uploaded on 01.08.2017 at 3.00 p.m. I
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7 (:££C.-I r
IN THE COURT OF SESSIONS FOR GREATER BOMBAY

(EXHIBIT- 1502)
IN
SESSION CASE NO. 177/2013, 178/2013, 577/2013 &
I

312/2014

CBI .. Complainant
V/s

M. L. Parmar & Ors. ..Accused

Appearance:
Advocate Mr. Wahab, Mr. Bindra and other defence lawyers.
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,::,nn n . .1:' • .ttaJU- ,::,peCial .1:' •.1:'. 1......rH.

CORAM : THE ADDITIONAL SESSIONS JUDGE

SHRI S.J. SHARMA (CR No. 49)

DATE : 29th NOVEMBER, 2017.

ORDER BELOW EXHIBIT 1502

1. By this application the defence advocate have

requested the Court to pass an order to ban· the print electronic and
social media from publishing, pasting and/or reporting the
proceeding of the present trial till its judgement. According to them
any such publication, pasting and/ or reporting will prejudice the
case of prosecution and/or defence and the ·same may create
security problem for the accused facing trial, . the prosecution
witnesses, the Ld. Prosecutor as well as the defence team of
lawyers. The case is having chequered history and misreporting has
already caused prejudice to both sides.
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2 Ordeil5eTm':v Exh. 1502 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014

2. At the rime of hearing of this application the media

persons were also in the Court hall. On their oral request they were
also permitted to make submissions. Media persons objected to
such ban. According to them they are making publication of
I
proceeding in good faith so that the public at large must know the
progress. They also canvassed before me that the media persons
have also to face assault in the discharge of their duty at public
places. It is in this background they requested the Court not to put
ban on the publication of any of the proceeding during the trial in
the matter. Advocate Shri Wahab and Advocate Shri Bindra on
behalf of all defence team made submission that this is a
sensational matter and if there is day-to-day publication of evidence
that may be grought on record during trial, is allowed to -be
published by media, then there is likeiihood of happening of any
untoward incidence and likelihood _of effect on the trial of this ·
matter. By making reference of the sensational trial of Malegaon
riot of 2008~ wherein the Court under its discretion ban media, an
attempt of killing Sr. lawyers who were the member of defence
team in sensational matter appeared in Mumbai and the past
history of discharge of 15 accused of this matter, publication by
media and publication through press and electronic and social
media about the death of Judge working on this case, by gl.ving
such natural death the colour of killing him, there is apprehension
in the mind of defence team, the accused persons facing trial and
prosecution witnesses about happening of any untoward incident
with them. Consequently, the request to ban publication of day-to-
day proceeding by media is prayed for.

.;,.

---~-.-.---~··-- --····----· .... ,-~,-....,...-·

 7 {25LC( >
r7 3 Order below Exh. 1502 in
S.C. 177/2013, 178/2013,
577/2013 & 312/2014

3. At the outset I must appreciate and compliment to the

media about their hard work and efforts to collect essential events
and to publish them to make aware to the public and to throw light
that such events are happening, may be constructive or destructive .
. I

Even during collection of such events number of incidents had

happened in the past where many media persons have to face
assault and have to suffer serious injuries. Still without afraid of
these incidents they continue their work. Today also they reminded
me about their sufferings. So far publication of event of any
incident, breach of fundamental rights of citizens, accidents,
economic offence etc, it is always done in good faith. Because of
the help of the media many affected victims succeeded to approach
investigation agencies. However, the proceeding that is Sessions
Case No. 177/13, 178/13, 577/13 and 312/14, the popularly
known case of killing of Sohrbuddin, his wife Kausarbi and their
associate Tulsiram Prajapati, wherein the accused persons are none
else but the police of Gujarat State, Rajasthan State and Andhra
Pradesh and this case has been transferred to Mumbai Court by the
order of the Hon'ble Supreme Court. Number of witnesses have·
been examined by the State CID Crime, Gujarat and ·cBI and the
witnesses are police as well as private persons, and in the past four
years from the receipt of chargesheet, 15 accused who are the
Ministers of Gujarat and Rajasthan and high ranking police officers
have been discharged, the matter appears sensational. The charge
has been framed against 22 accused who are police officials and
private persons. Today the trial was to commence but prosecution
\ ·\remain unable to produce the wimesses. Considering the
'·~
.; . senitibility in the matter, likelihood of happening of any untoward
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4 Order below Exh. 1502 in
S.C. 177/2013,178/2013,
577/2013 & 312/2014

incident and likelihood of effect on the trial of this matter, in case of

day-to-day publication of evidence that may be brought on record, I
am of the view not to allow media to make publication of any of the
proceeding during the trial in the matter until further order. It may
happen that the publication may create security problem for the
accused persons, prosecution witnesses, the defence team and the
prosecutor as well. I therefore, find justificari<?n in the request of
the defence team of lawyers. The application is allowed.

(S.J. SHAR1v1A)
A ...1...11 C'€.- .... ~,-,..,......,. T.,rl,.=
nuu.L_. ·u i>i>.L..,.H<> vuu. 0 ..._,
City Civil & Sessions Court,
Gr. Mumbai.
Date: 29.11:'2017

Dictated on 29.11.2017
Transcribed on 29.11.2017 .
Signed on 29.11.2017

"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINP.J..

SIGNED JUDGMENT/ORDER"
UPLOAD DATE ANDTIME NA;ME OF STENOGRAPHER
30.11.2017 (11.00 a.m.) MRS. APARNA V. LELE
I (H.G. STENOGRAPHER) I
Name of the Judge (with Court Room No.) Shri S. J. Sharma C.R.
' .
No.49 _j/
Date of Pronouncement of JUDGMENT/ 29.11.2017 1

ORDER
JUDGMENT/ORDER signed by P. 0. on 29.11.2017 l
i
JUD(;!"fE!'ff/()RDER uploaded o~ _____ j _20.11.2~17 ~t 11.00 a.m !
I

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